New York Cplr Substantive Review of Motions Merits

New York Civil Practice Update: Understanding Authoritative Guild 270.xx and the Substantive Changes to the Compatible Civil Rules for the New York Trial Courts

Tuesday, Jan 26th, 2021

By V. Christopher Potenza, Esq. and Amber E. Storr, Esq.

Beginning February 1, 2021, many substantive and notable revisions to the Uniform Civil Rules for the New York Supreme and County Courts will have effect pursuant to Administrative Guild 270/20 issued by Hon. Lawrence K. Marks, Main Administrative Guess of the Courts. The order contains 29 additions and revisions that borrow heavily from both the Rules of the Commercial Division of the Supreme Court as well and the Federal Rules of Civil Procedure.  Gauge Marks, recognizing the adaptations made by the courts and counsel in response to the COVID-xix pandemic, noted the unique opportunity for permanent reform.  These rules volition require attorneys (and their staff) to comply with new procedures and formalities throughout all phases of litigation, from the preliminary conference, through discovery and motions, and upwards to and including trial.

As with the Commercial Division Rules, these changes are designed to motility litigation forward in a more efficient, effective manner for the courts. They require more than advice and cooperation betwixt counsel, and ameliorate communication with the court. Some of the revisions remove a certain amount of gamesmanship in process and are geared to reduce otherwise unnecessary motility exercise or court intervention. Chiefly, paralegals and authoritative staff will need to know and apply these rules, particularly as they pertain to the class and content of submissions to the court.

Some of the more than notable changes are the following:

• Attorney consultations are required prior to preliminary and compliance conferences, discovery motions, and throughout litigation to resolve whatsoever issues, including discovery disputes, every bit well as the use of ADR and potential settlement.
• Interrogatories are limited in number (25) and depositions are limited in number (ten) and duration (7 hrs).
• Formal and particularized responses and objections to document demands are required.
• Strict compliance with discovery obligations in scheduling orders must be adhered to and noncompliance is sanctionable.  Failure to produce requested documents before a deposition may result in preclusion.
• Discussion count limits on motion documents (7,000 for each moving paper, 4,200 for each reply paper) and certification of word counts are required.
• Electronically submitted memorandum of law, affidavit and affidavit, exceeding 4500 words, shall include bookmarks providing a listing of the certificate'south content and facilitating piece of cake navigation by the reader inside the document.
• Summary judgment motions require a separate formal statement of undisputed cloth facts.
• Trial witness lists and lodge of testimony to be provided in writing at commencement of trial.
• Trial counsel shall confer to streamline problems for trial, and consent to or stipulate to evidence that is not contested, including aspects of expert witness testimony.
  

To better understand these changes, it is best to look at them in the context of three distinct categories: 1.) procedure, form, and content of papers submitted to the court; two.) conduct of counsel and interactions with the court; and 3.) limitations on discovery.

Procedure, form, and content of papers submitted to the court

Section 202.5-a: Filing by Electronic Transmission (amended)

• Amends prior rule to include electronic transmissions in improver to facsimile.
• Papers shall non exist submitted to the court past fax without advance approval of the justice assigned and should not be followed by hardcopy unless requested.
• In cases not pending in NYSCEF, the court may permit counsel to communicate with the court and each other by email. In court'southward discretion, counsel may be requested to submit memoranda of police by e-mail or by other electronic means, such as past reckoner flash drive, along with an original and courtesy copy.
  

Section 202.v(a)(one) & (2): Alphabetize Number; Form; Label (amended)

• (1): Additional requirement for papers filed with the court: due southhall comprise print no smaller than 12-betoken font, or 8 ½ x eleven inch folio, bearing margins no smaller than one inch. The impress size of footnotes shall be no smaller than 10 betoken.
• (two): Each electronically submitted memorandum of police, affidavit and affirmation, exceeding 4500 words, shall include bookmarks providing a listing of the document'south content and facilitating easy navigation by the reader within the document.
  

Section 202.eight-a: Move in General (new)

• Movant shall specify the exact relief sought in the notice of movement and last department of memoranda of police force; attach pleadings every bit necessary and as required past CPLR; use tabs for exhibits on difficult copies; if zipper/ showroom is voluminous, attach relevant excerpts and submit full exhibit separately; translate strange language documents pursuant to CPLR 2101(b); and submit re-create of cited decision or authority that is not readily available.
• Proposed Orders should be submitted with simple motions (motility to exist relieved, pro hac vice, open commission, etc.). No proposed society should exist submitted with motion papers on a dispositive motion.
• Adjournment of Motions: Unless courtroom orders otherwise, no motility may be adjourned on consent more than iii times or for a cumulative total of more than 60 days.
  

Department 202.8-b: Length of Papers (new)

• Length of papers:
  • Unless otherwise permitted by the court: affidavits, affirmations, briefs, and memoranda of law in chief shall be limited to 7,000 words each; respond affidavits, affirmations and memoranda shall exist no more than than 4,200 words and shall non comprise whatever arguments that do not respond or relate to those made in memoranda in chief.
    • Word count shall exclude the caption, tabular array of contents, table of authorities, and signature cake.
  • Every cursory, memoranda, affirmation and affirmation shall include on a page attached to the cease of document a certification by counsel who has filed the certificate setting forth the number of words in the certificate and certifying that the document complies with this word count limit or extended limit as canonical by courtroom.
    

Section 202.8-d: Orders to Bear witness Cause (new)

• Motions shall exist brought on by order to show crusade only when there is genuine urgency (e.g. applications for provisional relief), a stay is required, or a mandate by statute. Absent-minded permission by the courtroom, reply papers shall non be submitted on OTSC.
  

Section 202.8-east: Temporary Restraining Orders (new)

• Unless moving party can demonstrate significant prejudice past reason of giving discover, or that notice could non be given despite a proficient organized religion effort, a temporary restraining gild should not be issued ex parte.
• Unless excused past court, the bidder must give detect of the fourth dimension, appointment, and place that the awarding will be made, and provide copies of all supporting papers, to the opposing parties sufficiently in advance to permit them an opportunity to appear and contest the awarding. Application shall contain affidavit that: (a) find has been given; or (b) find could not be given despite a good faith try, or (c) there will exist significant prejudice to the party seeking the restraining order by giving of notice.  (This subdivision shall non employ to special proceedings nether Article 7 of the Existent Belongings Actions and Proceedings Law, nor requests for an order of protection under section 240 of the Domestic Relations Law.)
  

Department 202.8-f: Oral Statement (new)

• (a): Each courtroom or court part shall adopt a procedure governing request for oral arguments of motions, provided that, in absence of the adoption of such a procedure, provisions of paragraph (b) shall use.
• (b): Whatever party may asking oral argument of a move past letter of the alphabet accompanying the motion papers. Notice of the engagement selected by the court shall exist given, if practicable, at least 14 days before the scheduled oral argument. At that time, counsel shall exist prepared to argue the motion, discuss resolution of the result(s) presented and/or schedule a trial or hearing.
• (c): Oral argument may be conducted by electronic means.
  

Section 202.8-thousand: Motions for Summary Judgment; Statements of Cloth Facts (new)

• Upon any motility for summary judgment, other than a Motion for Summary Judgment in Lieu of Complaint (CPLR 3213), there shall be annexed to the notice of motility a separate, short and concise statement, in numbered paragraphs, of the cloth facts as to which the moving party contends in that location is no 18-carat upshot to exist tried.
• Papers opposing a movement for summary judgment shall include a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party and, if necessary, boosted paragraphs containing… material facts as to which information technology is contended that there exists genuine issue to be tried.
• Each numbered paragraph volition be accounted to exist admitted unless specifically controverted past a correspondingly numbered paragraph in the statement required to be served past the opposing party.
• Each statement must be followed by citation to testify submitted in back up of or in opposition to the motion.
  

Section 202.8-c: Sur-Reply and Mail-Submission Papers (new)

• Absent express permission in advance, sur-reply papers, including correspondence, addressing the merits of a motility are not permitted, except that counsel may inform the court by letter of the citation of any post-submission court decision that is relevant to the pending problems, only no additional argument.
  

Section 202.20-h: Pre-Trial Memoranda, Exhibit Volume and Requests for Jury Instructions (new)

• Counsel for each side shall submit a pre-trial memorandum of no longer than 25 pages at the pre-trial conference, or such other time as the courtroom may ready. No memoranda in response shall be submitted.
• On start day of trial, or at such other time as the court may set up, counsel shall submit an indexed folder or notebook, or the electronic equivalent for the courtroom's use, a copy for each attorney, and originals in a smaller notebook for the witnesses shall be prepared and submitted. Plaintiff's exhibits shall be numerically tabbed, and defendant'due south exhibits shall be tabbed alphabetically.
• Where the trial is past jury, counsel shall, on the get-go day of the trial or such other time as the court may set, provide the court with instance-specific requests to charge (or PJI reference) and proposed jury interrogatories.
  

Behave of counsel and interactions with the court

Section 202.1(f) & (g): Appearance by Counsel with Knowledge and Authorisation (new)

• Counsel must appear familiar with the example on which they appear and exist fully prepared and authorized to discuss and resolve the issues which are scheduled to be the subject of the appearance.  Failure to comply may be treated equally a default (Rule 202.27) and/or a failure to announced (Rule 130-2.1). Important that counsel be on time for all scheduled appearances.
  

Section 202.28: Discontinuance of Civil Actions and Find to the Court (amended)

• (a) If activeness is settled, discontinued, or otherwise disposed of, counsel shall immediately inform the assigned judge or court part by submission of a copy of the stipulation or letter of the alphabet directed to the clerk of the part along with discover to the champers of the assigned judge via telephone or electronic mail. (Amends prior rule that stipulation of discontinuance be filed within twenty days)
• (b) Parties are under continuing obligation to notify the court as promptly as possible in the issue that an action is settled, discontinued or otherwise disposed of or if case/motion has become wholly/partially moot, or if political party has died or filed petition in bankruptcy. Notification fabricated to assigned judge in writing.
  

Section 202.29: Alternative Dispute Resolution (ADR); Settlement Conference Before a Justice Other than the Justice Assigned to the Example (new)

• Counsel may jointly asking a settlement conference to exist held before a separate judge not assigned to the case, to exist granted at the discretion of the assigned approximate in the interests of justice.  Request may be made at any fourth dimension in the litigation.
  

Section 202.23: Consultation prior to Preliminary and Compliance Conference (new)

• Prior to preliminary or compliance conference, counsel must consult about resolution of case in whole/part; discovery disputes; whatsoever voluntary and informal exchange of data that the parties hold would assistance assist early settlement of the instance; the use of ADR to resolve all/some of the issues in the litigation; and whatsoever other bug to exist discussed at the briefing. Counsel shall make adept organized religion attempt to attain understanding on these matters in accelerate of conference.
  

Section 202.xx-a: Privilege Logs (new)

• Meet and Confer: Parties shall meet and confer at the commencement of the example, and from fourth dimension to fourth dimension thereafter, to discuss the scope of the privilege review, the corporeality of information to exist set out in the privilege log, the use of categories to reduce certificate-by-document logging, whether any categories of data may be excluded from the logging requirement, and any other problems pertinent to privilege review, including the entry of an appropriate not-waiver order.
• Court Order: Agreements and protocols agreed upon by parties shall exist memorialized in a court order. If parties are unable to come to understanding, the court shall set the telescopic of the privilege review by order.
  

Section 202.20-e: Adherence to Discovery Schedule (new)

• Parties shall strictly comply with discovery obligations by the dates set forth in all example scheduling orders. Applications for extensions shall exist made as soon every bit practicable and prior to expiration of such borderline. Failure to comply may result in appropriate sanctions or other relief pursuant to CPLR 3126.
• If a political party seeks documents as condition precedent to a degradation of such party and the documents are not produced by the date stock-still, the political party seeking disclosure may ask the courtroom to preclude the non-producing party from introducing such documents at trial.
  

Department 202.20-f: Disclosure Disputes (new)

• To the maximum extent possible, discovery disputes should exist resolved through breezy procedures, such as conferences, as opposed to motion practice.
• Absent exigent circumstances, prior to contacting the courtroom regarding a disclosure dispute, counsel must beginning consult with ane some other, either in-person or by phone, in a good-faith endeavor to resolve all disputes well-nigh disclosure.
• Any discovery motility must exist supported by an attestation that such expert-religion conference occurred, setting along the date and time of the conference, the persons participating, and the length of time of the conference.  If the moving political party was unable to briefing due to the unreasonable refusal of the adverse party, such efforts should be detailed in the moving papers.  Unreasonable failure or refusal to participate may result in sanctions.
• Failure of counsel to comply with this rule may outcome in the denial of a discovery movement, without prejudice, or such movement being held in abeyance until the informal resolution procedures of the court are conducted.
  

Department 202.xx-one thousand: Rulings at Disclosure Conferences (new)

• For all disclosure conferences conducted by non-judicial personnel, prior to decision of the conference, at the request of any political party:
  • All resolutions shall be dictated into the tape, and either the transcript shall be submitted to the courtroom to be "then ordered," or the courtroom shall otherwise enter an order incorporating the resolutions reached;
  • The parties shall prepare a writing setting along the resolutions reached and submit the writing to courtroom for approval and signature; or
  • Prior to conclusion of the conference, parties shall prepare an outline of the material terms and thereafter hold upon and jointly submit within one (ane) business mean solar day of conference a stipulated proposed social club memorializing the resolution of the discovery dispute, or advise the courtroom that no such order can be agreed upon.
    

Section 202.10 Adjournments of Conferences (amended)

• Adds: (b): Adjournments of conferences shall be granted upon showing of good crusade. Adjournment of conference volition not change any date on any courtroom order unless otherwise directed by the courtroom.
• Any party may request to appear by electronic ways, and are courts encouraged to grant such requests.
  

Section 202.34: Pre-Marking of Exhibits (new)

• Counsel for the parties shall consult prior to trial and shall in good-organized religion endeavour to agree upon the exhibits that will be offered into evidence without objection. Uncontested exhibits will be marked into evidence and exhibits not consented to shall be marked for identification but.
  

Section 202.26: Settlement and Pretrial Conferences (amended)

• (a) Settlement Conference: At the time of certification of the matter for trial or at any time afterwards discovery cut-off, the courtroom may schedule a settlement briefing which shall be attended by counsel and the parties, who are expected to be fully prepared to discuss the settlement of the matter.
• (b) Pre-Trial Conference: Prior to trial, counsel shall confer in adept-religion endeavor to identify matters not in contention, resolve disputed questions without need for court intervention, and further discuss settlement of the case. Counsel shall be prepared to hash out at conference prior to opening statements all maters still in disagreement and potential for settlement.
• (c) Consultation Regarding Practiced Testimony: The court may direct that counsel for the parties consult in skillful faith to place those aspects of their respective experts' anticipated testimony that are not in dispute, and may farther direct that any such agreement be reduced to written stipulation.
  

Section 202.37: Scheduling Witnesses (new)

• At commencement of trial or at such time as the court may directly, each party shall place in writing for the court the witnesses it intends to call, the order in which they shall bear witness, and the estimated length of their testimony and shall provide a re-create of such witness list to opposing counsel.
• Counsel shall separately place for the courtroom merely a list of the witnesses who may be chosen solely for rebuttal or with regard to credibility.
• Courtroom may allow for good cause shown and in the absenteeism of substantial prejudice, a party to telephone call a witness to testify who was not on listing.
  

Section 202.20-i: Directly Testimony by Affidavit (new)

• Court may crave that direct testimony of a political party's own witness in a non-jury trial or evidentiary hearing shall be submitted in affidavit form, provided that (a) that the court may not require the submission of a straight testimony affidavit from a witness who is non under the command of the party offering the testimony, and (b) the opposing party shall have the correct to object to statements in the direct testimony affidavit, and the court shall rule on such objections, just as if the statements had been made orally in open court.
• Where an objection to a portion of a direct testimony affidavit is sustained, the court may straight that such portion be stricken. The submission of direct testimony in affidavit form shall non affect any right to cross-examination or re-direct test of the witness.
  

Section 202.23 Staggered Court Appearances (new)

• Each court appearance for oral statement on a motion shall be assigned either a set up fourth dimension or time interval during which the appearance is expected to be held.
• Fifty-fifty those parties who believe that they are not directly involved in the matter before the court must announced at the appointed date and time assigned by the court unless specifically excused by the courtroom.
• Each chaser who receives notification of an advent on a specific date and time is responsible for notifying all other parties by eastward-post that the thing is scheduled to exist heard on that assigned date and time. All parties are directed to exchange e-mail addresses with each other at commencement of the case.
• Requests for adjournments shall be transmitted in writing to the courtroom and to all parties, in such manner as the court may straight, so every bit to be received no later than 48 hours before the hearing and shall ready forth whether the other parties consent to the adjournment.
  

Limitations on discovery

Department 202.20 Interrogatories (new)

• Interrogatories are limited to 25 in number, including subparts, unless the courtroom orders otherwise. Limit applies to consolidated actions equally well.
  

Section 202.20-c: Responses and Objections to Documents Requests (new)

• (a) For each document request propounded, the responding party shall, in its Response and Objections served pursuant to CPLR 3122(a), either:
  • State that the production is made as requested; or
  • State with reasonable particularity the grounds for any objection to product
• (b) Each response shall specify if whatsoever objection applies in whole or in role to the demand, and whether documents are being produced or withheld in whole or in part.
• (c) In each Response, the responding party shall verify, for each individual request, whether the response is consummate or at that place are no documents to produce.
  

Section 202.eleven: Discovery of Electronically Stored Information from Nonparties (new)

• Parties and nonparties should adhere to the Electronically Stored Information ("ESI") guidelines every bit ready in along the Appendix to the Uniform Court Rules.
• Amendment: The requesting political party shall defray the nonparty's reasonable product expenses in accordance with Rules 3111 and 3122(d) of the CPLR.
  

Department 202.20-b: Limitations on Depositions (new)

• Unless otherwise stipulated to by the parties or ordered past the court: (1) the number of depositions taken by plaintiffs, or defendants, or by third-party defendants, shall exist express to 10; and (2) depositions shall be limited to 7 hours per deponent.
• The deposition of an entity through one or more representatives shall be treated as a single deposition fifty-fifty though more one person may be designated to testify on the entity's behalf.
• Each degradation of an officer, managing director, principal, or employee of an entity who is too a fact witness, every bit opposed to an entity representative pursuant to CPLR 3106(d), shall establish a dissever degradation.
• The court may change these limits for practiced cause shown.
  

Section 202.xx-d: Depositions of Entities; Identification of Matters (new)

• A notice or subpoena may proper noun as a deponent a corporation, estate, etc. or any other legal or commercial entity, and notices and subpoenas directed to an entity may enumerate the matters upon which person is to be examined with reasonable particularity. If the notice/subpoena does not identify a particular officer/director/member/employee but elects to set forth the matters for examination, so no subsequently than 10 days prior to scheduled deposition, the named entity must designate and identify the private(s) and set out the matters on which the private(s) will show.
• If discover/subpoena does identify a specific officer/director/member/employee and elects to set forth the matters for examination, and then: (one) pursuant to CPLR 3106(d), the named entity shall produce the individual so designated unless, no after than ten days prior to scheduled deposition, notified requesting political party that another individual would instead exist produced and the identity, description, title of such private is specified; (2) pursuant to CPLR 3106(d), detect/subpoena that names a particular officer, manager, member, or employee of the entity shall include notice or amendment, served upon such entity the identity, clarification or title of such private; and (3) if named entity cross-designates more than than 1 private, information technology must set out the matters on which each individual volition testify.
• Amendment must advise a nonparty entity of its duty to brand designations discussed on this Rule.
• Individual(s) designated must testify almost information known or reasonably available to the entity.
  

Given the fact that many of these ceremonious dominion changes but reflect the adaptations made by the courts and practitioners during the past twelve months of the COVID-xix pandemic, and besides mimic many of the Commercial Sectionalization and Federal Rules, these new rules and amendments should not be as cumbersome as they may get-go appear. While some of the more technical aspects may take some getting used to (give-and-take counts, electronic bookmarking, etc.), the overarching theme of these revisions is to avoid court intervention. Streamline discovery and limit the problems for courtroom consideration or trial. If there is a dispute, pick up the phone and work it out, then send the courtroom an e-postal service one time resolved.

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Source: https://www.hurwitzfine.com/blog/new-york-civil-practice-update-understanding-administrative-order-270-20-and-the-substantive-changes-to-the-uniform-civil-rules-

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