Adam Leitman Bailey Articles

Adam Leitman Bailey Articles

An online resource of real estate law articles

  • Home
  • Real Estate Q & A

Adam Leitman Bailey, P.C. Defeats Motion to Vacate Note of Issue That was Filed One Day Too Late

  • Carolyn Raulo, Eric S. Askanase, Real Estate Litigation

In a highly irregular and favorable decision, Adam Leitman Bailey, P.C. defeated a motion to vacate Note of Issue by Defendant in a landlord-tenant lawsuit arguing that it was filed one day after the statutory deadline to file a motion had expired.

Under New York’s Uniform Rules for the Supreme Court governing civil lawsuits, litigants file what is called a Note of Issue after discovery has been completed, certifying to the court that the case is ready for trial. Adam Leitman Bailey, P.C.’s client, a residential tenant, filed suit against Defendant, his residential landlord, alleging that he was entitled to a rent stabilized lease and had been overcharged rent under the rent stabilization laws for multiple years. Both the Plaintiff and Defendant conducted extensive discovery pursuant to specific deadlines set by various court orders which did not permit any adjustment except by court order, including the deadline to file a Note of Issue.

On January 31, 2024, the final date set by the court to do so, Adam Leitman Bailey, P.C. filed a Note of Issue indicating all discovery was complete. Precisely 21 days later, on February 21, 2024, Defendant moved to vacate Note of Issue, claiming that they still needed further discovery, including a deposition of Plaintiff.

New York Supreme Court Rule 202.21(e) requires that a motion to vacate a Note of Issue must be filed “within 20 days after service” of a Note of Issue. At oral argument before New York State Supreme Court Justice Shlomo S. Hagler, Adam Leitman Bailey, P.C. Litigation Partner Eric S. Askanase argued that absent special circumstances, which did not occur here, Defendant’s motion to vacate Note of Issue must be denied simply because it was filed more than 20 days after Note of Issue, and the length of delay was irrelevant. Plaintiff countered that the minimal delay should be excused and that the Court should permit it to take Plaintiff’s deposition under its equitable powers, regardless.

Although Adam Leitman Bailey, P.C. was confident it should prevail in light of the plain statutory language and favorable caselaw concerning missed deadlines to file Note of Issue, there was a concern that the court might view a single day’s delay as “de minimis”; and so Askanase also argued three additional reasons that the motion should be denied. First, he argued that the various discovery dates, including the date for filing Note of Issue, were set forth in orders that were signed and issued by Justice Hagler and that Defendant had waived their rights to conduct any further discovery when they failed to comply with the dates set forth in those orders.

Second, even if the Note of Issue were not vacated, Defendant should not be allowed to conduct any post Note of Issue discovery, including a deposition of Plaintiff, because, also under New York Supreme Court rule 202.21(d), it should only be permitted if “unusual or unanticipated circumstances” arose after Note of Issue was filed requiring such deposition “to prevent substantial prejudice”. Here, Defendant admitted that they had noticed Plaintiff’s deposition before the Note of Issue was filed but had simply never finalized a deposition date.

Tags: carolyn rualo, eric askanase

ARTICLES BY TOPIC

  • Appellate Litigation
  • Buyouts and Sale of Apartment Lease
  • Commercial Landlord Representation
  • Commercial Leasing Services
  • Commercial Tenant Representation
  • Condominium & Cooperative Board & Building Representation
  • Condominium & Cooperative Litigation
  • Condominium & Cooperative Owner & Shareholder Representation
  • Condominium & Cooperative Representation
  • Condominium/Board of Managers Representation of Newly Constructed Buildings & Conversions
  • Division of Housing and Community Renewal (DHCR)
  • Fire and Building Violations
  • Foreclosure Litigation Group
  • Homeowner and Tenant Associations
  • Insurance Defense Litigation
  • Landlord Representation
  • About Mitchell-Lama/ Housing Development Fund Corporation (HDFC) & Third Party Transfer Representation
  • Mortgage Finance Practice Group
  • Purchase & Sale of Homes
  • Purchase and Sale of Multi-Family Dwellings and Buildings
  • Real Estate Administrative Proceedings/Environmental Control Board
  • Real Estate Litigation
  • Tenant Representation
  • Q & A
  • Title Insurance Claims Group

RECENT POSTS

  • Adam Leitman Bailey P.C. Obtains Summary Judgment Ruling Dismissing Complaint Seeking Payment Of Exterminator Fees Where No Contract Was Shown To Exist To Provide Authority For Such Payment
  • Adam Leitman Bailey, P.C. Overcomes Son’s Succession Claim and Wins Holdover Proceeding and Monetary Judgment for Landlord After Trial
  • Adam Leitman Bailey, P.C., Wins Trial and $100,000 Monetary and Possessory Judgment in Residential Non-Payment Case, Overcoming Laches and Breach of Warranty of Habitability Defenses
  • Adam Leitman Bailey, P.C. Secures Substantial Early Termination Payment for Tenant of Foreclosed Building in Receivership
  • Coop Board Forced To Obey The Law

TOP CONTRIBUTORS

Adam Leitman Bailey

Dov Treiman

John Desiderio
  • Popular
  • Comments
  • Tags
  • FDA’s Poison Prevention Packaging Rule: A Bitter Pill the FDA is Forced to Swallow
  • The New Rules of Seeking a Buyout of a Rent-Regulated Tenant
  • Rules Governing Anticipatory Repudiation of Contracts
  • New Rules of Substantial Rehabilitation to Remove Units from Rent Regulation Part II
  • Building Sold Before Violation Notice Issued
  • Public Health and Law : Assignment Essays | Assignment Essays: […] FDA’s Poison Prevention Packaging ...
  • Public Health and Law : Solution Essays - Solution Essays: […] FDA’s Poison Prevention Packaging ...
  • Who are the parties in the case and what are their respective interests? - Excelwriters: […] FDA’s Poison Prevention Packaging ...
  • Nutritional Health Alliance v. Food and Drug Administration - Longbeach Writers: […] FDA’s Poison Prevention Packaging ...
  • Public health and law | Law homework help – Hero Papers: […] FDA’s Poison Prevention Packaging ...
Adam Leitman Bailey apartment rent Appellate Division Case Co-op board member rights Co-op issues commercial landlord commercial lease commercial tenant condominium Condominium & Cooperative Representation contract cooperative board court of appeals Dov Treiman foreclosure Foreclosure law foreclosure litigation group Home purchase Insurance Jeffrey Metz John Desiderio landlord Landlord and tenant landlord law Landlord Representation Lease Lease Provision License Agreement Mortgage New Construction Representation nonprimary residence NY state law property owner Purchase & Sale of Homes Real estate real estate litigation rent Rent stabilization rent stabilized Rosemary Liuzzo Mohamed RPAPL tenant law tenant rights violation notice

Read more from Adam Leitman Bailey

Huffington Post

The Cooperator

Apartment Law Insider

Commercial Observer

Adam Leitman Bailey, P.C.

Twitter Twitter

Follow @alb_pc on Twitter

Twitter Twitter

Follow @Aleitmanbailey on Twitter

LinkedIn

Adam Leitman Bailey on LinkedIn

Adam Leitman Bailey, P.C. on LinkedIn

Adam Leitman Bailey Articles © 2025. All Rights Reserved.

Powered by WordPress. Designed by Woo Themes