On March 19, 2025, the Second Department issued a decision in Reid v. Green, 2025 NY Slip Op. 01657, holding that the unexcused failure to complete discovery by the note of Issue date waived the right to take that discovery, explaining:
The Supreme Court properly denied the defendants’ motion, inter alia, to vacate the note of issue and to compel the plaintiff to appear for an EBT. The defendants failed to demonstrate that a material fact in the note of issue was incorrect or that the note of issue otherwise failed to comply with the relevant court rules in some material respect. A statement in a certificate of readiness to the effect that all pretrial discovery has been completed is a material fact within the meaning of 22 NYCRR 202.21(e), and where that statement is incorrect, the note of issue should be vacated. However, to vacate a note of issue, discovery requests must be legitimate and pending, and not resolved or contrived. Further, where the Supreme Court has directed the completion of discovery by a certain date or where the party seeking vacatur has failed to timely comply with court orders and discovery demands, denial of a motion to vacate is proper.
Here, the record reflects that the defendants had ample opportunity to engage in discovery during the more than 10 years this action was pending, including the opportunity to depose the plaintiff during a duly scheduled August 18, 2021 EBT. However, the defendants failed to proffer a reasonable, uncontrived excuse for their failure to appear for the plaintiff’s EBT, and their counsel’s willful and contumacious behavior in this regard constituted a waiver of the defendants’ right to depose the plaintiff. Under these circumstances, the defendants were not entitled to vacatur of the note of issue and to compel the plaintiff to appear for an EBT.
(Internal quotations and citations omitted).