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  1. #1
    Join Date
    Dec 2011
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    5

    Default Can a Motion to Vacate an Order Toll the 30 Deadline for Appeal of That Order

    My question involves court procedures for the state of: NY

    I have some experience as a pro se litigant more by default than by intention and I don't wish to be a lawyer. I am plaintiff pro se in a pending case. The referee issued a Trial Readiness Order requiring me to submit shortly a Certificate of Readiness and Note of Issue. I do not wish to begin trial because I have a pending Motion to Renew my prior Motion to Compel Discovery. My original Motion to Compel discovery was denied but the judge did grant me leave to renew and there was a subsequant decision that provided the basis of new information. The motion to renew is pending.

    I believe the Trial Readiness Order is not only not warranted because of the pending motion to renew, but is also contrary to NY case law. I found several cases where the appeals court did not permit trial to go forward when discovery had not been completed. I have less than 30 days to appeal the Trial Readiness Order, but I filed a motion to vacate the Trial Readiness Order. This motion is in still in a procedural stage. Can this motion stay the deadline for me to file a Notice of Appeal? If the motion succeeds, I don't think I will need to appeal and it seems logical that if there is a pending motion that may affect an Order, that the deadline to appeal should be tolled but I cannot find any support for this view. Can anyone point to a NY rule or case where a motion to vacate tolls the 30 day appeal deadline? Thanks

  2. #2
    Join Date
    Sep 2005
    Location
    Behind a Desk
    Posts
    98,846

    Default Re: Can a Motion to Vacate an Order Toll the 30 Deadline for Appeal of That Order

    You need to read the rules of court for the court you're in and the court to which you would be appealing. I very much doubt that a motion to vacate a procedural order would stay the appeal, but as court rules vary by court I'm not going to dig into the statutes to see what they show without knowing what court(s) we're talking about.

  3. #3
    Join Date
    Feb 2010
    Location
    CT & IL
    Posts
    5,273

    Default Re: Can a Motion to Vacate an Order Toll the 30 Deadline for Appeal of That Order

    What are you planning on appealing? You cannot appeal discovery issues until the case is completed (or the appellate court would just be filled with these pre-trial issues)

  4. #4
    Join Date
    May 2011
    Posts
    638

    Default Re: Can a Motion to Vacate an Order Toll the 30 Deadline for Appeal of That Order

    Have you tried communicating directly with the referee to see if you can get the trial readiness order stayed until you hear on your motion? Does the referee even know about the pending motion?

  5. #5
    Join Date
    Dec 2011
    Posts
    5

    Default Re: Can a Motion to Vacate an Order Toll the 30 Deadline for Appeal of That Order

    Thank you for your replies. This is in NY Supreme Court. The problem I am asking about is that the referee by issuing a Trial Readiness Order is requiring me to file papers that I am ready for trial at the same time that I have a pending motion to compel discovery. I am not ready for trial and the referee knows this. This is not out of ignorance. The referee is just trying to force the case to trial. So I filed a motion to vacate the Trial Readiness Order. I also asked the referee to withdraw the Trial Readiness Order. My request was refused. Since I first posted in this forum, the referee told me that my motion to vacate the Trial Readiness Order will not even stay the Note of Issue deadline in the Trial Readiness Order. So if I filed a Notice of Appeal of the Trial Readiness Order, that may not stay the Trial Readiness Order either. This situation leads me to a new question which I have posted in this forum.

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