What Constitutes Good Faith? (NY)
In a case pending in the Bronx County Supreme Court, Defendant’s post-note-of-issue motion for discovery-related relief was granted and plaintiff was compelled to appear for an independent neurological examination after plaintiff certified that discovery was complete. On appeal, the order was unanimously modified to exclude the IME because the Appellate Division First Department found that the Defendants failed to comply with the requirement of 22 NYCRR 202.7 to submit an affirmation of good faith in support of their disclosure-related motion. Cashbamba v. 1056 Bedford LLC, et al.
Importantly, the court found that Defendant’s counsel’s affirmations were insufficient, because they failed to include the time, place, and nature of the consultations that counsel had with plaintiff’s counsel to try to resolve the issues raised by the motion. It was not enough for Defendants to rely on form letters exchanged between their counsel and plaintiff’s counsel. The letters were deemed insufficient because they did not specify any discussions between counsel. Moreover, the movant did not adequately support defendant’s contention that the parties have historically been unable to resolve discovery disputes without court intervention. Apparently, after the plaintiff did not appear for a scheduled IME, the defense did not appeal a denial of a motion to vacate the Note of Issue, which the court pointed out as an error committed along the way.
As this case demonstrates, defense counsel must to be attentive in their pursuit of discovery. “Good faith” affirmations are extremely important proof required for discovery-related motion practice because meeting one’s burden requires knowledge of the history of the file and counsel’s interactions and that history must be presented in support of the motion. Good faith affirmations require a detailed presentation of efforts made to secure the requested discovery prior to making the motion. Waiting until after the Note of Issue is filed is a risk not worth taking and appellate practice should be considered to avoid a similar scenario. The courts are trending towards punishing litigants that delay their case, and this is a prime example of why detailed and proactive case handling protects litigants from the consequences of delay.
Thanks to Vincent Terrasi for his contribution to this post. Please email Vito A. Pinto with any questions.