On July 29, 2025, Justice Patel of the New York County Commercial Division issued a decision in Hilldun Corp. v. Styleline Studios, LLC, 2025 NY Slip Op. 32884(U), vacating a note of issue because discovery was not complete, explaining:
Under 22 NYCRR § 202.21(e), a party may move to vacate a note of issue and strike a case from the trial calendar by demonstrating that the case is not ready for trial. The rule provides clearly that a note of issue should be vacated where it is based upon a certificate of readiness that incorrectly states that all discovery has been completed. In Matos, the Appellate Division affirmed the vacatur of a note of issue based on a material misstatement in the certificate of readiness regarding the completeness of discovery.
Trial courts retain discretion to permit post–note of issue discovery without vacating the note, but this discretion must be exercised judiciously and is limited by considerations of prejudice and fairness. Trial 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. However, where the certificate of readiness misrepresents the status of discovery or where discovery failures are unresolved and substantial, courts have declined to allow piecemeal post–note of issue discovery and instead ordered vacatur to preserve orderly case management.
This authority reflects a broader principle: a party must substantially comply with its disclosure obligations under CPLR Article 31, particularly those governing document production under CPLR §§ 3101 and 3120, before certifying the case as trial-ready. A certificate of readiness that misrepresents the status of such compliance cannot support placement of the case on the trial calendar. Under such circumstances, the motion court correctly vacates the note of issue.
Here, the record supports vacatur. The Note of Issue filed on April 28, 2025, was materially inaccurate in multiple respects. Cross-Claim Defendant Litvack had not produced a single document in response to eighty-one outstanding document requests, and Cross-Claim Plaintiffs had not completed their own document production. Nor had the parties complied with the Court’s repeated directives to meet and confer in good faith to resolve their respective discovery obligations. These deficiencies were structural, longstanding, and well documented prior to the filing of the Note of Issue. Further, the Hugel Discovery Affirmation does not comply with the Court’s directives, as it provides unsatisfactory representations regarding the nature and scope of Litvack’s compliance (or lack of) with his discovery obligations. Specifically, it does not address or rebut Cross-Claim Plaintiffs’ identification of additional e-mail addresses and phone numbers attributed to Litvack, nor does it explain whether any efforts were undertaken to confirm the completeness of the search across the known sources.
(Internal quotations and citations omitted).