In the recent year, the First Department has turned over a more lenient leaf for post-note of issue discovery for plaintiffs and defendants alike, slowly relaxing the stringent and somewhat draconian requirements of 22 NYCRRR 202.21(d).

The court's focus seems to have shifted to prejudice, or lack thereof, in these matters. In two decisions in the last month, the court enunciated the standard for post-note of issue discovery as being permitted “as long as neither party will be prejudiced.” Entirely absent from the analyses is the “unusual and unanticipated circumstances” standard of 22 NYCRR 202.21(d).

In cases where “unusual and unanticipated circumstances” are considered, attorney error seems to be a permissible scenario. In addressing whether plaintiff should have been permitted post-note of issue discovery, last year the court generally held that “[c]ounsel's statement that he only realized the importance of the nonparty witness's testimony after filing the note of issue is sufficient” to demonstrate “unusual and unanticipated circumstances.”