- Court
- New York Supreme Court, Appellate Division, Second Department
- Case
- Jones v. New Two Star, LLC
- Date
- June 3, 2026
- Slip Op. No.
- 2026 NY Slip Op 03432
Background
Plaintiff Nancy Jones commenced this action for personal injuries allegedly sustained when she tripped and fell while descending interior stairs in a building owned by defendant. In April 2024, plaintiff filed a note of issue and certificate of readiness for trial, stating that discovery had been completed, physical examinations had been waived, and there were no outstanding discovery requests. Defendant moved to vacate the note of issue, contending it contained incorrect material facts.
Supreme Court, Kings County (Leon Ruchelsman, J.), denied defendant’s motion. Defendant moved for leave to reargue, and upon reargument, the court adhered to its prior determination. Defendant appealed from both orders.
Holding
The Appellate Division, Second Department, dismissed the appeal from the initial order (as superseded by the reargument order) and affirmed the reargument order, with one bill of costs. The Court held that the Supreme Court properly adhered to its determination denying the motion to vacate the note of issue.
The panel found that defendant failed to demonstrate that any material fact in the note of issue was incorrect or that it failed to comply with court rules in a material respect at the time of filing. Applying the standard from Reid v. Green, 236 AD3d 945, 946, the Court noted that discovery requests must be “legitimate and pending, and not resolved or contrived” to warrant vacating a note of issue. Defendant failed to provide a reasonable excuse for its failure to appear for plaintiff’s deposition and thus waived its right to depose plaintiff. The court properly allowed the action to remain on the trial calendar while directing plaintiff to appear for independent medical examinations within 60 days.
Takeaways
This case illustrates the consequences of a party’s failure to pursue its own discovery opportunities diligently. A defendant who fails to appear for scheduled depositions cannot later use that uncompleted discovery as a basis to vacate a note of issue. Courts will treat such failures as waiver. However, the ruling also shows the court’s willingness to fashion a practical remedy by ordering IMEs within a reasonable timeframe while keeping the case on the trial calendar, rather than vacating the note of issue entirely.
Why It Matters
Litigators should note that the note of issue is a significant procedural milestone, and vacatur requires a genuine showing of material deficiency, not mere discovery gamesmanship. Parties who fail to diligently pursue their own discovery obligations cannot later weaponize that failure to delay trial. The decision reinforces the judiciary’s preference for moving cases toward resolution rather than allowing procedural disputes to stall progress. Practitioners must track all discovery obligations and appear at scheduled examinations to preserve their rights.