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William C. Altreuter
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Monday, July 27, 2015

My classmate Ken Kirby has an article in the July New York Bar Journal on the question of whether filing a 90 Day Demand to Resume Prosecution waives the defendant's right to further discovery. There is a split in the Departments on this, and the Fourth Department holds that it does. Ken argues, persuasively, I think, that it shouldn't.

A couple of thoughts: I'm as CLS as hell, and I think there may be a Critical Legal Studies answer to the question of why the 4th Department treats 90 day notices the way that it does. The culture in the 8th Judicial District, which dominates the 4th Department, is to treat the Note of Issue as a formality with the primary purpose of generating revenue. As I am sure you are aware, the usual practice around here is for the trial court to set a date by which the Note of Issue is to be filed, and to set a trial date at the same time. As a practical matter this means several things happen routinely. First, if a Note of Issue is filed before discovery is complete the trial court (or the parties, by stipulation) simply continue conducting discovery. Of course, this has Brill implications, but since the majority of civil cases around here aren't summary judgment type cases the Brill issue is winked at. The second big thing is that juries are regularly picked, and cases tried, when the Note of Issue hasn't been filed, or has been filed at the very last minute. I have had Notes of Issue filed and served as I was in the jury room, and this is not a rare occurrence. In addition, in the however long I have been practicing here I have never had a Note of Issue stricken. I gave up even making the motion a long time ago. I suspect (although you would know better than I would, have done the research and all) that there is a paucity of 4th Department decisional law on the question.

This yields some odd results. I just finished a case in which the plaintiff's attorney served expert witness discovery on the 30th day out from trial, along with what purported to be a "Supplemental Bill of Particulars". In fact, the new Bill of Particulars articulated a new theory of recovery against my client (which theory was supported by the expert witness disclosure). The Note of Issue had not been filed-- the trial date was the trial date the court had ordered some six or so months back. I moved to compel further discovery, and my motion was granted, but I was obliged to quickstep through the process because the trial date was, for reasons that probably have as much to do with OCA's requirements with respect to calendar control, immutable. (The case settled, ultimately. I would have been interested in taking the appeal, if only to get the question of how Notes of Issue are treated before the Appellate Division. Since the question would probably turn on whether the court improperly exercised its discretion in allowing the case to proceed to trial when there was a new theory of recovery articulated for which adequate time to conduct discovery was allowed I cant say for confidence that I'd have prevailed, but that wasn't the only thing I'd have been talking about on an appeal.)

It occurs to me as well that there is a third option beyond letting a case linger or filing a 90 day demand. I have, on occasion, filed the Note of Issue as a defendant. Obviously this does -- or should-- amount to a waiver of further discovery, but since the culture here does not treat a Note of Issue very seriously (except, again, in a Brill context) I have found that the courts generally direct that I remain open for discovery even after I have filed.

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