Note of Issue (What It Is And How It Works: Legal Definition)

What is a Note of Issue?

Why do you need to file a notice of issue in court?

What are the essential elements you should know!

Keep reading as we have gathered exactly the information that you need!

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What Is A Note of Issue

A “note of issue” refers to a court procedural document where a request is made to the court clerk to have the case booked for trial.

In other words, the notice is a document, form, or paper used to have the courts enter a case in the trial calendar for hearing on merits.

In practice, it’s the plaintiff that will file the notice in the record of the court although any party to the lawsuit can have it filed once the issues are joined.

The notice will provide the court with essential information it needs to know to properly book the case for hearing, such as:

  • What is the court number
  • The name of the litigants
  • Are they asking for a jury trial or not
  • What is the amount claimed or remedies sought 
  • Who are the attorneys to the parties and their contact information
  • What is the nature of the proceedings

For instance, in the state of New York, the ‘notice of issue’ must be submitted with a Certificate of Readiness in accordance with the NY rules (22 NYCRR § 202.21).

The note of issue, generally accompanied by a Certificate of Readiness, lets the court know that the parties have performed all the required discoveries, have joined issues, and are now ready to proceed to trial.

Note of Issue Definition

According to Thomson Reuters Practical Law, a Note of Issue is defined as follows:

A form that is filed in New York state court and served on all parties confirming that the parties have completed necessary discovery proceedings and the case is trial ready (CPLR 3402(a)). 
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According to the New York’s Civil Practice Law and Rules, a party can place a case on the court calendar by issuing a Notice of Issue:

At any time after issue is first joined, or at least forty days after service of a summons has been completed irrespective of joinder of issue, any party may place a case upon the calendar by filing, within ten days after service, with proof of such service two copies of a note of issue with the clerk and such other data as may be required by the applicable rules of the court in which the note is filed.  The clerk shall enter the case upon the calendar as of the date of the filing of the note of issue.
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Note of Issue Form

A note of issue form is a document that must be completed and filed with the court in order to have a matter entered into the court calendar for trial.

For example, the New York Notice of Issue form contains the following:

  • Calendar number (if any)
  • Index number
  • Court name
  • County 
  • If trial by jury is demanded and all issues or specific issues
  • If trial without jury is demanded 
  • Filing party’s name 
  • Date summons served
  • Date service completed 
  • Date issue joined 
  • Nature of the action or proceeding 
  • Amount demanded or other relief demanded 
  • Special preferences claimed
  • Insurance carriers if known 
  • Attorney for plaintiff or Plaintiff Pro Se (and contact information)
  • Attorney for the defendant or Defendant Pro Se (and contact information)

You can find a sample note of issue to see its layout and content presentation.

As an additional guide, you can refer to the Note of Issue Form 26 providing you with a checklist of what needs to be included in the notice.

What Happens After Note of Issue is Filed

Once the note of issue is filed, the court will then need to process the request.

The matter may sit on the trial calendar for a few months before the parties (or their attorneys) are called to a pre-trial conference.

At the pre-trial conference, the assigned judge will speak with the attorneys and see if the parties are having negotiation discussions or if there’s any chance the matter may get resolved.

If the parties declare that there’s a chance for a settlement, the court may reschedule the conference date allowing the parties to pursue their negotiations.

If the parties are not in negotiations and wish to proceed to trial, the court proceeding will then take its course and proceed to the hearing on merits.

Failure To File Note of Issue

Once the issues are joined, it’s important that the note of issue be filed.

According to CVPR 3216, a party must not unreasonably neglect to delay the prosecution of an action or fail to serve and file a note of issue.

In the case of a failure to serve and file a note of issue, the court can:

on its own initiative or upon motion, with notice to the parties, may dismiss the party’s pleading on terms. Unless the order specifies otherwise, the dismissal is not on the merits.
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In such cases, the neglecting party must show a justifiable excuse for the delay and show that it is justified for the matter to proceed to trial.

Vacate Note of Issue

According to the rules in New York, the court can vacate a note of issue if it appears or it is demonstrated that a material fact presented in the note or certificate was incorrect.

A party served with a note of issue and certificate of readiness who does not agree with it may move to have the note vacated.

The movant must provide an affidavit explaining and demonstrating why the case is not ready to proceed to trail and how a material fact in the certificate of readiness is incorrect.

The movant can also demonstrate that the service of the note of issue and certificate does not respect the requirements of the law.

The court is also given the power, “on its own motion” to vacate a note of issue if it deems the matter not ready for trial.

Notice of Issue Takeaways 

So what is the legal definition of Note of Issue?

What does it contain?

How does it work?

Let’s look at a summary of our findings.

What Does Note of Issue Mean

  • A notice of issue is a “form” filed and served on all parties to the lawsuit confirming that the matter is ready to proceed to trial 
  • The notice is typically accompanied by a “certificate of readiness” indicating that pretrial discoveries are completed, there was a reasonable opportunity to complete discovery, among other things, and the matter is ready to proceed to the hearing on merits 
  • For a case to be ready for trial, the parties must have done all the discoveries, exchanged any expert reports, provided witness names, copy of evidence intended to be used in trial, and so
  • If a note of issue is filed prematurely, a party may move to have the note vacated (the court may also do that on its own motion)
  • If a party fails to file a notice of issue along with a readiness certificate, the party’s action may be dismissed unless the neglecting party can show justifiable reason to continue with the action 
Administrative hearing 
Bench trial 
Certificate of readiness 
Civil lawsuit 
Civil lawyer 
Court rules 
Divorce case 
Jury trial 
Litigation attorney 
Order of trial 
Pro se claims 
Proof of service 
Trial attorney 
Trial court 
Vacatur
Author
Answer 
Court reporter
Deposition 
Discovery 
Due process 
Legal remedy 
Motion for summary judgment 
Motion to dismiss 
Motion to strike
Notary public 
Notice of abandoned property 
Notice of administration
Pre-trial 
Summons and complaint
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