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BOTH PARTIES MOVED TO EXTEND THE DEADLINE FOR FILING A NOTE OF ISSUE BECAUSE DISCOVERY WAS NOT COMPLETE; DENYING THE MOTION MADE IT IMPOSSIBLE FOR THE CASE TO PROGRESS; SUPREME COURT REVERSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the motion to extend the deadline for filing the note of issue should not have been denied because discovery was incomplete:

The motion court improvidently denied the motions of both parties to extend the deadline to file the note of issue and to complete discovery since discovery was not complete. Under the circumstances, the court’s denial of plaintiff’s motion left the parties in limbo where they could neither move forward to trial nor complete the discovery necessary to move forward to trial, thereby frustrating the strong public policy favoring open disclosure to allow the parties to adequately prepare (CPLR 3101[a] …). Additionally, as defendant demonstrated a need for additional discovery and to depose plaintiff’s expert, who was hired to calculate damages in this commercial case, its motion should have been granted (see 22 NYCRR 202.70, Rule 13[c] …). 361 Broadway Assoc. Holdings, LLC v Foundations Group I, Inc., 2022 NY Slip Op 06571, First Dept 11-17-22

Practice Point: if the judge makes it impossible for the case to progress, here by denying both parties’ motions to extend the deadline for filing the note of issue to complete discovery, the appellate court will reverse.

 

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