Appellate Division of the Supreme Court of the State of New York July 5, 2012 (Jacobs v. Johnston)

Since the defendant moved to vacate the note of issue within the time prescribed for doing so pursuant to 22 NYCRR 202.21 (e), and clearly demonstrated that the case was not ready for trial, that branch of the defendant’s motion which was to vacate the note of issue and, in effect, to compel the deposition of a nonparty witness should have been granted (see CPLR 2103 [b] [2]; Gallo v SCG Select