Effective February 1, 2021, significant amendments were made to the Uniform Rules for the Trial Courts, 22 N.Y.C.R.R. Part 202. The changes were prompted by the successful implementation of rules, procedures and forms in the Commercial Division. The amendments seek to import and adopt appropriate Commercial Division rules into general practice. Some are almost verbatim; others have been adapted to the nature of general civil practice. Practitioners in the Commercial Division should be very familiar already with the amendments.
It is important to note at the outset that many of the Commercial Division rules are patterned after federal practice and were necessitated in some way by the difficulty in passing CPLR legislation on various issues, including expert disclosure. In fact, there are quite a few practitioners who comment on how the CPLR continues to be “replaced” by rules. Statements that the rules are not meant to supplant the CPLR ring a bit hollow when one sees the expansive reach of the various rules.
Ultimately, the effectiveness of the new statewide rules will depend on the attorneys’ cooperation and the judges’ interest in enforcing them. One of the reasons the Commercial Division rules have seemingly worked so well is because, as noted above, the rule changes were, at least to an extent, motivated by a desire to replicate federal practice, and so many attorneys practicing in the Commercial Division were in favor of the changes. Moreover, the changes have been more incremental in the Commercial Division as opposed to the wholesale adoption process in these amendments. Indeed, consistent themes throughout the rules stress consultation, good faith and informal proceedings. Some of them seem particularly applicable to commercial matters and should be useful in commercial matters that do not meet the Division’s monetary thresholds. Some, however, have limited applicability in a large number of cases in general civil practice, that is, personal injury practice. For example, limitations on interrogatories (25) are usually not an issue since in that area interrogatories are generally not used (a demand for a bill of particulars is the normal course of conduct). Furthermore, limitations on the number (10) of depositions will not generally be an issue.
The limitation on the duration of depositions (seven hours) as a one-fits-all presents difficulties, taking into account the vastly varied nature of how depositions are conducted. For example, whether and how many documents are to be identified at the deposition, whether the deposition is a purely factual one or involves technical or scientific issues, and how many parties are there in the action and whether their respective interests differ, to name a few. And this does not even address the current virtual depositions that carry with them their own complications, some of which necessarily lengthen the deposition. One can only imagine what may happen in the initial implementation of the rules with so many attorneys not familiar with the rules and with limited or no opportunity to seek court assistance, for example, to lengthen a deposition, upon good cause shown.
Finally, note that the new rules sometimes overlap with certain existing rules that do not appear to have been repealed (yet).
Because of space limitations, we will not be able to complete our review here and will continue in the next Law Digest.
Be Prepared and Be on Time! § 202.1: Adding new subdivisions (f) and (g) requiring at each appearance that counsel be familiar with the case and prepared and authorized to resolve issues relevant to the appearance. Failure to comply may result in a default (under Rule 202.27) or a finding of “failure to appear” (under Rule 130.2.1). And counsel should be on time.
Print Type, Margins and Bookmarks. § 202.5(a): Amended by breaking up subsection (a) into subdivisions (1) and (2); adding references to print type and margins (no smaller than 12 point or 8 ½ x 11 inch papers; margins no smaller than one inch; footnote print size no smaller than 10 point); and requiring electronically filed affidavits, affirmations and memoranda of law with 4500 words include bookmarks, listing the document’s contents and facilitating navigation.
Fax and Email Submissions. § 202.5-a: Replacing the existing section with new subsections (a) and (b) dealing with fax-filing and email correspondence in cases not pending in NYSCEF. Papers and correspondence (complying with § 202.5) may only be submitted by fax with the advance approval of the assigned justice. Unless requested, correspondence sent by fax should not be followed by hard copy. 202.5-a(a). The court may permit communication by counsel (with each other and with the court) via e-mail in cases not pending in the NYSCEF and, in the court’s discretion, counsel are to submit memoranda of law by email, or other electronic means (like a flash drive) together with an original and a courtesy copy. 202.5-a(b).
Motions, Relief Sought, Proposed Orders. New § 202.8-a: Entitled “Motion in General.” The precise relief sought should be contained in the notice of motion or order to show cause and in the memorandum of law’s concluding section. Electronically filed, hard copy or working copy motion papers must include copies of all pleadings, other CPLR-required documents “and as necessary for an informed decision on the motion (especially on motions pursuant to CPLR 3211 and 3212).” Tabs should be used for exhibits to hard or working copies. Copies must be legible. Where relevant portions of a voluminous exhibit are discrete, those portions only should be attached, and the full exhibit should be submitted separately. Foreign language documents must be translated as per CPLR 2101(b). A decision, or relevant portion of other authority to be relied upon, not readily available to the court, should be submitted with the motion papers. 202.8-a(a). “When appropriate,” proposed orders should be submitted with the motion. The section provides examples, such as motions to be relieved, pro hac vice admissions and open commissions, but NOT dispositive motions. 202.8-a(b). Unless otherwise ordered by the court, motions cannot be adjourned on consent more than three times or for a cumulative total of more than 60 days. 202.8-a(c). A substantially similar 60-day rule already exists in 202.8(e)(1).
Word Count Limits – You’ve Said Enough! New § 202.8-b: Entitled “Length of Papers.” Unless otherwise permitted by a court, affidavits, briefs and memoranda of law in chief are not to exceed 7,000 words each; for reply affidavits, affirmations and memorandum, the limit is 4,200 words. Arguments in the reply papers should be responsive or relate to those made in the memorandum of law in chief. 202.8-b(a). The word limit is exclusive of the caption, table of contents, table of authorities and signature block. 202.8-b(b). At the end of every affirmation, affidavit, brief and memorandum of law, counsel is to certify the number of words and compliance with the word count. Counsel can rely on the word processing system word count. 202.8-b(c). On an oral or letter application on notice to all parties, the court can permit papers exceeding the word count above, and in that case, the counsel certification should set forth the number of words and certify compliance. 202.8-b(d).
No Sur-Reply, Please. New § 202.8-c: Entitled “Sur-Reply and Post-Submission Papers.” Sur-reply papers (including correspondence) are not permitted without advance express permission. However, counsel can provide a citation to relevant post-submission decisions via letter, without additional argument. Materials submitted in violation of the rule “will not be read or considered” by the court and opposing counsel should not respond to them.
Use the Order to Show Cause Only Where There Is a “Genuine Urgency,” a Stay Is Required or a Statute Requires It. New § 202.8-d: Entitled “Orders to Show Cause.” Orders to show cause are to be used only where there is a “genuine urgency,” for example, on an application for provisional relief, a stay is required or a statute mandates it. Reply papers are not permitted without the court’s advance permission.
Avoid Ex Parte TROs, Unless . . . New § 202.8-e: Entitled “Temporary Restraining Orders.” A temporary restraining order (TRO) is not to be issued ex parte, unless the moving party demonstrates significant prejudice by giving notice or that notice could not be given despite a good faith effort. Thus, unless excused by the court, the applicant is to provide the opposing parties with notice of the time, date and place of the application and copies of the supporting papers “sufficiently in advance to permit them an opportunity to appear and contest the application.” An application for temporary injunctive relief, including (but not limited to) a motion for a stay or a TRO, must contain, in addition to the above, an affirmation demonstrating that notice has been provided, notice could not be provided despite a good faith effort to provide it or there will be significant prejudice to the moving party by giving such notice. The section does not apply to orders to show cause or motions in special proceedings under RPAPL Article 7 or to a DRL 240 request for orders of protection, unless the court orders otherwise. Note that 22 NYCRR 202.7(f), which does not appear to have been repealed, deals precisely with this issue and is similar but not identical to 202.8-e.
Oral Argument. New § 202.8-f: Entitled “Oral Argument.” Every court or court part must adopt a procedure to request oral argument of motions, including whether oral argument is required on all motions or on a case-by-case basis, how counsel is to request argument and if oral argument is allowed, when counsel is to appear. If no procedure is adopted, paragraph (b) applies. 202.8-f(a). Subparagraph (b) provides that a party can request oral argument via a letter accompanying the motion. The court is to provide at least 14 days’ notice, if practicable, of the oral argument date, at which time counsel is to be prepared to argue the motion, discuss the resolution of the issue(s) presented and schedule a trial or hearing. 202.8-f(b). The court can permit oral argument by electronic means. 202.8-f(c). Note that this amendment overlaps 202.8(d), which discusses oral argument.
Statement of Material Facts. New § 202.8-g: Entitled “Motions for Summary Judgment; Statements of Material Facts.” On a summary judgment motion, excluding a CPLR 3213 motion, “there shall be annexed to the notice of motion a separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried.” 202.8-g(a). The opposition papers must include a correspondingly numbered paragraph responding to each statement in the moving papers, and, when necessary, additional paragraphs with its own statements of material facts. 202.8-g(b). The paragraphs in the moving papers are deemed admitted unless the opposing party specifically contradicts them. 202.8-g(c). Each statement (including one that contradicts a statement) must be followed by a citation to evidence submitted in support of or in opposition to the motion. 202.8-g(d).
Appearances at Conferences Via Electronic Means and Adjournments. § 202.10: The existing rule, dealing with appearances at conferences, was amended, removing the reference to telephone conferences but permitting an appearance via electronic means. Adjournments of conferences are permitted upon good cause shown, without impacting any dates in the court order, including PCOs, unless the court directs otherwise.
In the next edition, we will deal with new rules impacting the efficient discovery of ESI from a nonparty (202.11); the interrogatory limit (25, including subparts) (202.20); privilege logs (202.20-a); the 10/7 rule for depositions (202.20-b); producing documents or objecting with particularity (202.20-c); deposing entities on specific matters (202.20-d); strict compliance with discovery deadlines (202.20-e); resolving disclosure disputes informally (202.20-f); rulings at disclosure conferences by non-judicial personnel (202.20-g); pretrial memoranda, exhibits, binders and jury instructions (202.20-h); nonjury trial direct testimony by affidavit (202.20-i); staggered court appearances to increase efficiency (202.23); good faith consultation before preliminary and compliance conferences (also 202.23); settlement conferences, pretrial conferences and undisputed expert testimony (202.26); informing the court promptly when a case is discontinued or otherwise over (202.28); a settlement conference before a justice other than the assigned one (202.29); agreement on pre-marked exhibits at trial (202.34); and witness lists, order of witnesses and length of testimony (202.37).
David L. Ferstendig, currently a member of Law Offices of David L. Ferstendig, New York, was a founding officer of the law firm Breindel & Ferstendig. He litigates a spectrum of civil and commercial matters, including breach of contract, products liability, toxic tort, insurance and reinsurance coverage, jewelers’ block, political risk, environmental liability, trade secret, and professional indemnity. He is also an adjunct law professor at Brooklyn Law School and New York Law School. Ferstendig is a member and past Chair of the CPLR Committee for NYSBA and is editor of the New York State Law Digest.
This article first appeared in NYS Law Digest (no. 723) February 2021, published by the New York State Bar Association. Note: Ferstendig will continue his review in the next issue.