The Appellate Division, First Department, at 27 Madison Ave.
The Appellate Division, First Department, at 27 Madison Ave. (NYLJ/Rick Kopstein)

In the recent year, the First Department has turned over a more lenient leaf for post-note of issue discovery for plaintiffs and defendants alike, slowly relaxing the stringent and somewhat draconian requirements of 22 NYCRRR 202.21(d).

The court’s focus seems to have shifted to prejudice, or lack thereof, in these matters. In two decisions in the last month, the court enunciated the standard for post-note of issue discovery as being permitted “as long as neither party will be prejudiced.” Entirely absent from the analyses is the “unusual and unanticipated circumstances” standard of 22 NYCRR 202.21(d).

In cases where “unusual and unanticipated circumstances” are considered, attorney error seems to be a permissible scenario. In addressing whether plaintiff should have been permitted post-note of issue discovery, last year the court generally held that “[c]ounsel’s statement that he only realized the importance of the nonparty witness’s testimony after filing the note of issue is sufficient” to demonstrate “unusual and unanticipated circumstances.”

The following week, the First Department again found unusual and unanticipated circumstances in a personal injury suit where authorizations for plaintiff’s work records were provided before the note of issue was filed, but defendants did not use the authorizations to obtain the records until three years post-note of issue. These holdings widen the cracks in the iron wall that is 22 NYCRRR 202.21(d) and further the growing emphasis that trials should be a search for the truth based upon all available information and liberal discovery. Finn v. Morgan, 46 A.D.2d 229, 234 (4th Dept. 1974) (“The modern trend is to view litigation as a search for truth rather than a sporting contest.”).

‘Cuprill’ and ‘Cabrera’

In Cuprill v. Citywide Towing & Auto Repair Services, — A.D.3d —, 2017 NY Slip Op. 02729 (1st Dept. Apr. 9, 2017), the First Department affirmed the grant of defendant’s motion to compel post-note of issue discovery reasoning that “[t]rial courts are authorized, as a matter of discretion, to permit post-note of issue discovery without vacating the note of issue, so long as neither party will be prejudiced.” No mention was made of unusual and unanticipated circumstances justifying the belated discovery. The motion court permitted the post-note of issue discovery, reasoning that “the court, in the exercise of its discretion, is not going to punish a party (here, defendants) for law office failure, regardless of how egregious.” Cuprill, Decision and Order, Index No. 20357/2014, NYSCEF Docket No. 50 (filed Dec. 22, 2016).

Although neither decision contains significant factual recitations, the underlying papers reveal that defendant in Cuprill never moved to vacate the note of issue on the basis of outstanding discovery because the attorney receiving the electronic notifications for the case left the firm the month before the note of issue was filed and the contact information was not updated.” Cuprill, Defendant’s Affidavit in Reply, Index No. 20357/2014, NYSCEF Docket No. 48 (filed Dec. 22, 2016).

The holding in Cuprill was quoted a month later in Cabrera v. Abaev, — A.D.3d —, 2017 NY Slip Op.4084 (1st Dept. May 23 2017), where the court permitted post-note of issue medical examination on the basis that it did not prejudice either party. The papers below reveal that defendant did not seek to vacate the note of issue despite outstanding independent medical examinations and when plaintiff did not appear for the examination, defendant moved to compel discovery and strike the case from the trial calendar. Cabrera, Affirmation in Support, Index No. 24224/2015, NYSCEF Doc No. 62 (filed Nov. 29, 2016). The parties disputed whether counsel had an oral agreement that the examinations may go forward post-note of issue. Once more, no mention was made of unusual and unanticipated circumstances although it appears that the parties had argued the application of this standard. Cabrera, Index No. 24224/2015, NYSCEF Doc No. 62-85.

‘Massa’

Massa v. Lower Manhattan Dev., 142 A.D.3d 927 (1st Dept. 2016), a short nondescript decision, includes two pivotal points. First, the court found that unusual and anticipated circumstances exist if the importance of the discovery material became known after the note of issue was filed even though the identity of the witness or material was disclosed prior to the close of discovery. Second, the case adopts a subjective over an objective standard finding the statement of counsel to be sufficient.

An overview of the underlying appeal may prove instructive for litigants seeking to apply this precedent. In this personal injury action, a non-party witness (NPW) was interviewed and gave a written statement to investigators. The statement was subsequently disclosed but NPW was never deposed. A court order directed plaintiff to file the note of issue but permitted a post-note of issue deposition of defendant’s former employee. Crucially, in seeking to depose the NPW, plaintiff’s counsel averred that defendant’s former employee denied certain facts at his deposition and as such, counsel only learned of the importance of NPW’s allegedly contradictory testimony at this deposition four months after the note of issue was filed.

Thus, per Massa, the standard is not when the document or witness were identified or disclosed, but rather when the importance to the case was revealed. This departs from the previously rigid “time of disclosure” standard which penalized parties for not pursuing discovery assumed to be irrelevant or duplicative while discovery was still open. Miller v. Metro. 810 7th Ave., 50 A.D.3d 474, 475 (1st Dept. 2008). The decision does not elucidate whether the “importance” standard equates to relevance or a higher standard of need, so the issue remains to be determined in future cases.

Second, and equally of note, the decision found counsel’s statement as to the need or importance sufficient. The court adopted a subjective standard rather than engage in an objective analysis of whether NPW’s testimony became important in light of alleged statements of defendant’s former employee. Thus, a party seeking post-note of issue discovery need not demonstrate that a reasonable litigant would not have discovered the importance prior to the note of issue filing, merely that the party discovered this value post-note of issue.

‘Jones’

Jones v. Seta, 143 A.D.3d 482 (1st Dept. 2016) follows the departure from the time of disclosure method. While scant information can be gathered from the First Department’s decision, the papers below provide more detail. The action arose out of a vehicular rear-end collision. During his pre-note of issue deposition plaintiff denied any prior injury or accidents involving the same body parts alleged to have been injured. Almost three years after the note of issue was filed, defendant obtained the plaintiff’s work records that referenced a number of prior accidents and sought additional authorizations, deposition and medical examinations concerning these prior injuries, citing the alleged inconsistency in his deposition. Jones, Index No. 308688/2011, Slip Op (Nov. 22, 2015). Plaintiff countered that authorizations for work records were provided years before the close of discovery and defendants improperly waited until the eve of trial to use the authorizations and obtain the records.

Again the First Department found unusual and unanticipated circumstances despite the contention that records were available to defendants prior to the close of discovery but defendants chose not to obtain them.

Although it is unlikely that the court can abandon the “unusual or unanticipated circumstances” element of 22 NYCRR 202(d), the use of importance/need for the discovery over the more rigid time of disclosure or availability in considering unusual or unanticipated circumstances would permit a party to obtain more discovery despite the filing of the note of issue. This may, of course, encourage a trend for reopening discovery. These decisions demonstrate that failure to obtain timely discovery or seek timely vacatur of the note of issue often results from the excusable errors or oversights of counsel that ultimately would punish the represented party.

Of course, the broader interpretation of unusual or unanticipated circumstances and greater availability of post-note of issue discovery will surely have its critics. Plaintiffs, such as Tyson Jones, are frequently aggrieved by extended discovery schedules and strive for an earlier trial date unencumbered by belated discovery. Similarly, plaintiffs in Cuprill and Cabrera filed their note of issue and asserted waiver of further discovery based on repeated delays in discovery. Regardless, it appears that the First Department has loosened the reins on post-note of issue discovery for plaintiffs and defendants alike.