Court Declines to Vacate Note of Issue in Discrimination/Hostile Work Environment Case; Requires “Jackson Affidavit” Regarding Social Media Posts

In Lopez v. Bendell, No. 156292/2017, 2021 WL 4776215 (N.Y. Sup Ct, New York County Oct. 13, 2021), an employment discrimination case (involving allegations of national origin discrimination, hostile work environment, retaliation, and wrongful termination), the court denied defendants’ request to vacate the Note of Issue (on the ground that plaintiff failed to produce “social media” discovery). Instead, the court required plaintiff to provide a “Jackson Affidavit” regarding the nature and extent for plaintiff’s search for such information.

From the decision:

In this case, defendants sought to vacate the note of issue within 20 days of its filing. When, as here, the movant timely seeks to vacate the note of issue, the movant is “required only to demonstrate why the case [is] not ready for trial, and [is] not required to establish that additional discovery [is] necessary because unusual or unanticipated circumstances [have] developed subsequent to the filing of the note of issue” (Cioffi v S.M. Foods, Inc., 178 AD3d 1003, 1004 [2d Dept 2019][internal citations and quotations omitted]; see also Schroeder v IESI NY Corp., 24 AD3d 180, 181 [1st Dept 2005]). Here, although defendants timely moved to vacate the note of issue based on the alleged lack of discovery, such relief is not appropriately granted since defendants waited until after the note of issue was filed to object to the letter from plaintiff’s counsel stating that plaintiff did not possess responsive social media posts.

At the same time, however, taking into consideration that plaintiff was directed to produce the social media accounts and plaintiff’s response was an unsworn letter from counsel, and given the potential significance of plaintiff’s response, defendants’ motion is granted to the extent of requiring plaintiff to provide a Jackson Affidavit which, inter alia, delineates the nature of her search, the social media accounts searched, and the methods used to conduct the search (see Kattaria v Rosado, 146 AD3d 457, 457 [1st Dept 2017] [trial court providently exercised its discretion in directing plaintiff to resubmit to a medical examination rather than vacating the note of issue despite the absence of “unusual or unanticipated circumstances” required under 22 NYCRR 202.21(e)]).

The court also denied plaintiff’s cross-motion for sanctions, since it could not be said that defendants lacked any good faith basis for their motion.

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