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Note of Issue Received Unless Proven Otherwise (NY)

November 16, 2017

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A note of issue date is one of the most important dates for defendants to monitor in litigation in New York.  In <em><a href="">Meisels v Raptis</a>, </em>the Supreme Court, Kings County, denied medical malpractice defendants’ motion to strike plaintiff’s note of issue and extend time for filing summary judgment despite their claim that they had never received it.
The plaintiffs alleged that the defendants failed to timely diagnose a two year old child’s Herpes Encephalitis that caused developmental delays.  Although the court extended the date for filing a note of issue to February 3, 2017, the plaintiff filed on August 22, 2016, along with a certificate of trial readiness.
The defendants disputed receipt of the note of issue and sought to strike it well beyond the twenty days allowed for such a motion.  Significantly, the failure to timely move to strike prohibited the defendants from filing for summary judgment.  Curiously, the defendants did not question the affidavit of service that had been filed with the note.  Instead, they argued that fact discovery had continued and was outstanding even after the filing of the note of issue.  This, they said, proved that there was an incorrect material fact in the certificate of readiness.
The court ruled that the defendants’ motion to strike the note of issue was untimely and found defendants failed to show “unusual or unanticipated circumstances.”  This ruling effectively ended defendants’ right to receive outstanding discovery, placed the matter on the trial calendar, and precluded defendants from moving for summary judgment.
The court set precedent that, if defendants truly believe they did not receive the note of issue, they must attack the affidavit of service.
Thanks to Christopher Gioia for his contribution.
For more information, contact Denise Fontana Ricci at <a href=""></a>.

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