Lack of Preparation Botches Discovery

In Sapichino v. City of New York, a personal injury action arising from a trip-and-fall on raised city sidewalk flagstones, plaintiff requested that the trial court strike the city's Answer for failing to comply with the court's prior discovery orders. The plaintiff submitted this request six weeks after filing a Note of Issue and Certificate of Readiness, which informs the court that all pre-trial discovery has been completed. The rules of the trial courts state that you cannot seek, except under special circumstances, discovery after you file the Note of Issue and Certificate of Readiness. The problem here was the plaintiff's attorney filed the Note of Issue and Certificate of Readiness and inserted a paragraph in the Certificate that there was still a discovery and inspection response by the city that was outstanding. Plaintiff's counsel argued that this modification was "how [they] do it in Brooklyn" and therefore, plaintiff's right to post Note of Issue discovery. The court stated it knew of no "Brooklyn" exception to the Uniform Court Rules, and denied plaintiff's motion, ruling plaintiff failed to make the required showing under Price v. Brady of "special, unusual or extraordinary circumstances" warranting a deviation from the court rule of no post Note of Issue discovery. The court declined to strike the defendant City's Answer or allow the requested discovery. This case highlights the importance of finding an experienced trial attorney who understands how to comply with procedural rules for all the different courts he or she practices in. www.foleygriffin.com