Motion to Extend Discovery in New York

Background

New York courts are authorized to supervise all or part of any disclosure procedure. (Civ. Prac. Law & Rules, § 3104(a).) This broad power permits the court to extend discovery deadlines. (Di Giovanni v. Pepsico, Inc. 502 N.Y.S.2d 23 [1st Dept. 1986].)

How to Structure the Motion

“Except where otherwise expressly prescribed by law, the court may extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown.” (Civ. Prac. Law & Rules, § 2004; Verizon New York, Inc. v. Con Edison, Inc., 997 N.Y.S.2d 102 [Sup. Ct. 2014].) When considering an extension, the court may consider:

1. the length of the delay;
2. whether the opposing party has been prejudiced by the delay;
3. the reason given for the delay;
4. whether the moving party was in default before seeking the extension, and, if so, the presence or absence of an affidavit of merit.

(Tewari v. Tsoutsouras, 75 N.Y.2d 1, 12 [1st Dept. 1989].)

The Court’s Decision

Section 3101 of Civil Practice Law and Rules requires full disclosure of all nonprivileged matter which is material and necessary to the defense or prosecution of an action. (Civ. Prac. Law & Rules, § 3101.) To this end, trial courts have broad discretion in the supervision of discovery and in determining what is “material and necessary” (Allen v. Crowell-Collier Publ. Co., 21 N.Y.2d 403 [1968]; Andon v. 302-304 Mott St. Assoc., 94 N.Y.2d 740 [2000]; Caballero v. City of New York, 48 A.D.3d 727 [2nd Dept. 2008].)

Within the context of discovery, “necessary” is interpreted as meaning “‘needful’ and not indispensable” (Allen v. Crowell-Collier Publ. Co., 21 N.Y.2d 403, 407 [1968].) The “material and necessary” standard is to be interpreted liberally, requiring disclosure of “any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason.” (Id. at 406.)

It is within the court’s power to grant an extension for discovery where it is established that the delay in service was not willful or lengthy and that it did not cause any prejudice to the parties. (A J Concrete Corp. v. Arker, 54 N.Y.2d 870, 872 [1981].) In addition to the statutory authority, a court has authority under common law, in its discretion, to grant relief from a judgment or order in the interest of justice, taking into account the equities of the case and the grounds for the requested relief. (Hodge v. Development at Helderberg Meadows, LLC, 114 A.D.3d 1122 [3rd Dept. 2014].)

New York cases are clear that where a litigant has made no effort to comply with deadlines or advance a case, there is no “good cause” to extend deadlines. (Wong v. Kim, 17 A.D.3d 128, 792 N.Y.S.2d 435 [1st Dept. 2005]; Foley v. West-Herr Automotive Group, Inc., 63 A.D.3d 1680, 880 N.Y.S.2d 916 [4th Dept. 2009].)