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Civil Term - Part Rules, Commercial Division


Commercial Division Attorney's Affirmation Form

Guidelines | General Rules | Conferences | Motions | Trials

 

Guidelines

The following are guidelines for assignment of cases to Queens County Supreme Court, Commercial Division. These guidelines apply to Request for Judicial Intervention (RJI) filed on commercial cases on or after November 7, 2005.

In general, the Commercial Division of the Queens County Supreme Court will entertain commercial and business disputes in which a party seeks compensatory damages totaling $50,000 or more (exclusive of punitive damages, interests, costs and attorney fees).

A RJI which is marked "Commercial" and is accompanied by a "Commercial Division Certification" will initially be assigned to the Commercial Division. By filing the "Commercial Division Certification ", a party gives a brief description of the subject matter of the lawsuit, e.g., "shareholder derivative action " and certifies that he/she believes that the case meets the eligibility requirements set forth below. The certification must be annexed to the RJI at the time of the filing.

Due to caseload considerations, the Commercial Division is empowered to transfer cases out of the Commercial Division which, in its judgment, do not fall within the eligibility requirements set forth below. A Commercial Division Justice may order a transfer notwithstanding that a party has described the case as “commercial” on its RJI.

Consistent with these guidelines, actions and proceedings, which are designated to be eligible for assignment to the Commercial Division, shall be reviewed by the Commercial Division Part to determine whether the matter shall be assigned to or retained in the Commercial Division. The principles set out below will guide the exercise of this authority. Parties should adhere to these principles when designating a case type on the RJI. (See Paragraph D – for documentation which should accompany the RJI).

(A) The monetary threshold of the Commercial Division, exclusive of interest, costs, disbursements and counsel fees, is $50,000.00.

(B) Actions in which the principal claims involve the following will presumptively be retained in the Division, provided that the monetary threshold is met;

(1) Breach of contract or fiduciary duty, fraud, misrepresentation, business tort (e.g., unfair competition) or statutory and /or common law violation arising out of business dealings ( e.g., sales of assets or securities, corporate restructuring, partnership, shareholder,, joint venture, and other business agreements, trade secrets and restrictive covenants and employment agreements which are not principally claims for discriminatory practices);

(2) Transactions governed by the Uniform Commercial Code (exclusive of those concerning individual co-op units);

(3) Transactions involving commercial real property, including Yellowstone injunctions and excluding actions for the payment of rent only;

(4) Shareholder derivative actions - without consideration of the monetary threshold;.

(5) Commercial class actions - without consideration of the monetary threshold;

(6) Commercial bank and financial institution transactions;

(7) Internal affairs of business organizations or liability to third parties or officials thereof;

(8) Environmental insurance coverage litigation;

(9) Commercial insurance coverage litigation ( e.g., Directors and Officers and/or Errors and Omissions coverage);

(10) Dissolution or liquidation of corporations, partnerships, limited liability companies, limited liability partnerships and joint ventures - without consideration of the monetary threshold;

(11) Applications to stay or compel arbitration and affirm or disaffirm arbitration awards and related injunctive relief pursuant to CPLR Art. 75 involving any of the foregoing enumerated commercial issues - without consideration for the monetary threshold.

(C) The following will be transferred out of or not retained in the Commercial Division even if the monetary threshold is met;

(1) Suits to collect professional fees;

(2) Cases seeking a declaratory judgment as to insurance coverage for personal injury or property damage;

(3) Residential real estate disputes, including landlord-tenant matters and commercial real estate disputes involving the payment of rent only;

(4) Proceedings to enforce a judgment regardless of the nature of the underlying case;

(5) First-party insurance claims and actions by insurers to collect premiums or rescind non-commercial policies;

(6) Malpractice by attorneys, accountants or actuaries;

(D) The determination as to whether a case should be retained in the Commercial Division will be made at the Preliminary Conference. In the discretion of the Commercial Division Justice assigned, if a matter does not fall within these guidelines for Commercial Division adjudication, it shall be transferred to a non-commercial part. For this purpose and as an aid to the Court in determining a case’s Commercial Division eligibility, counsel shall annex the Commercial Division Attorney’s Certification, together with a copy of the pleadings, to any submission accompanying an RJI. Retained cases will remain in the Commercial Division. Counsel who submit a statement justifying Commercial Division designation of special proceeding pursuant hereto shall check the “Other Commercial” box on their RJI; not the “Special Proceedings” box.

(E) An order transferring a matter out of the Commercial Division is an Administrative matter not subject to review or appeal.

(F) If a case is assigned to a non-commercial part because the filing attorney did not designate the case as “Commercial”, any other party to the action may apply for a transfer of the case into the Commercial Division subject to the approval of the Administrative Judge. A case may also be transferred to the Commercial Division on the ground that it is related to one then pending in the Commercial Division.

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General Rules

Rule 1. Appearance by Counsel with Knowledge and Authority.
Counsel who appear in the Commercial Division must be fully familiar with the case in regard to which they appear and fully authorized to enter into agreements, both substantive and procedural, on behalf of their clients. Copies of the pleadings must be brought to each conference. Failure to comply with this rule may be regarded as a default and dealt with appropriately. Counsel must appear on time for all scheduled appearances.

Rule 2. Settlements and discontinuances.
If an action is settled, discontinued, or otherwise disposed of, counsel shall immediately inform the Court. Attorneys shall also submit a copy of the stipulation with proof of payment of fees and a letter directed to the clerk of the Part. Filing a stipulation with the County Clerk will not suffice to effect a settlement, discontinuance or disposition.

Rule 3. Information on Cases.
Information on future court appearances can be found on the court system’s future court appearance site (www.nycourts.gov/ecourts). The Clerk of the Part in question can also provide information about scheduling in the Part ( trial, conferences, and arguments on motions). Where circumstance require exceptional notice, it will be furnished directly by Chambers.

Rule 4. Form of Papers
All papers shall comply with Part 130 of the Rules of the Chief Administrator, CPLR 2101 and 22 NYCRR 202.5(a). The print size of footnotes shall be no smaller than nine-point.

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Conferences

Rule 5. Consultation among counsel prior conferences.
a) Counsel for all parties shall consult prior to a preliminary or compliance conference about (i) resolution of the case, in whole or in part, and (ii) discovery and any other issues to be discussed at the conference. Counsel shall make a good faith effort to reach agreement on these matters in advance of the conference.
b) Prior to the preliminary conference, counsel shall confer with regard to anticipated electronic discovery issues. Such issues shall be addressed with the court at the preliminary conference and shall include but not be limited to (1) implementation of a data preservation plan; (2) identification of relevant data; (3) the scope, extent and form of production; (4) anticipated cost of data recovery and proposed initial allocation of such cost; (5) disclosure of the programs and manner in which the data is maintained; (6) identification of computer system(s) utilized; (7) identification of the individual(s) responsible for data preservation; (8) confidentiality and privilege issues; and (9) designation of experts.

Rule 6. Preliminary Conferences.
A preliminary conference will be held within forty-five days of the filing of an RJI and shall be held in the centralized Preliminary Conference Part. At the Preliminary Conference, the parties shall bring a copy of the pleadings and complete the Preliminary Conference Order for Commercial Cases. The dates set forth and provisions in the order shall be enforced.

Rule 7. Familiarity with Outstanding Motions.
Counsel must be prepared to discuss any motions that have been submitted and are outstanding at conference appearances and have the authority to make binding stipulations regarding those issues.

Rule 8. Submission of Information
At any conference, counsel shall be prepared to furnish the court with the following: (i) a complete caption, including the index number; (ii) the name, address, telephone, e-mail address and fax numbers of all counsel; (iii) the dates the action was commenced and issue joined; (iv) a statement as to what motions, if any, are pending and before whom; and (v) copies of any decisions previously rendered in the case.

Rule 9. Discovery Schedule.
The Preliminary Conference will result in the issuance by the court of a Preliminary Conference Order. Where appropriate, the order will contain specific provisions for early means of disposition of the case, such as (i) a schedule of limited-issue discovery in aid of early dispositive motions or settlement and/or (ii) a schedule for dispositive motions before disclosure or after limited-issue disclosure. The order will also contain a comprehensive disclosure schedule, including dates for the completion of impleader and discovery, motion practice, a compliance conference and a date for filing the note of issue.

Rule 10. Compliance Conference
A Compliance Conference will be held approximately ninety days before the Note of Issue is due, on a Tuesday, in the part of the assigned Commercial Division Justice. The parties shall bring a copy of the pleadings, Preliminary Conference Order and complete a Compliance Conference Order. The dates set forth and the provisions in the order shall be enforced.

Rule 11. Non- Appearance at a Conference.
The failure of counsel to appear for a conference may result in an ex parte discovery order, an order directing dismissal, the striking of an answer and an inquest or direction for judgment, or other appropriate sanction. 22 N.Y. C. R.R. 130-2.1 and 202.27.

Rule 12. Adherence to Discovery Schedule.
Parties shall strictly comply with discovery obligations by the dates set forth in all case scheduling orders. No extensions of such deadlines shall be allowed unless specifically authorized by the court. If any party fails to comply with such order, an appropriate sanction may be imposed against that party pursuant to CPLR 3126 or Part 130 of the Rules of the Chief Administrator.

Rule 13. Disclosure Disputes.
Counsel must consult with one another in a good faith effort to resolve all disputes about disclosure. See N.Y.C.R.R.202.7. Except as provided in Rule 19 hereof, if counsel are unable to resolve a disclosure dispute in this fashion, the aggrieved party shall contact the Court to arrange a conference as soon as practicable to avoid exceeding the discovery cutoff date. Counsel may request a conference by telephone if, subject to the Commercial Division Justice’s discretion, it would be more convenient and efficient than an appearance in court.

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Motions

Rule 14. Form of Motion Papers.
The movant shall specify in the notice of motion, order to show cause, and in a concluding section of a memorandum of law, the exact relief sought. Counsel must attach copies of all pleadings and other documents as required by the CPLR and as necessary for an informed decision on the motion. Counsel must always use tabs when submitting papers containing exhibits. Copies must be legible. If a document to be annexed to an affidavit or affirmation is voluminous and only discrete portions are relevant to the motion, counsel may attach excerpts and submit the full exhibit separately. Documents in a foreign language shall be properly translated. CPLR 2101(b). Whenever reliance is placed upon a decision or other authority not readily available to this court, a copy of the case or of pertinent portions of the authority shall be submitted with the motion papers. Motion papers shall comply with Part 130 of the Rules of the Chief Administrator. Papers shall be double spaced and contain print no smaller than ten-point, on 8 ½ X 11 inch paper, bearing margins no smaller than one inch. CPLR 2101; Uniform Rule 202.5(a).

Rule 15. Length of Papers
Unless otherwise permitted by the court for good cause prior to submission of the motion, briefs or memoranda of law are limited to 25 pages each. Reply memoranda shall be no more than 15 pages and shall not contain any arguments that do not respond or relate to those made in the memoranda in chief. Affidavits and affirmations are limited to 25 pages.

Rule 16. Sur-Reply and Post Submission Papers.
The CPLR does not provide for sur-reply papers. In addition, the presentation of papers or letters to the court after submission or argument of a motion is not permitted. Materials submitted in violation hereof will not be read or considered. Opposing counsel who receive a copy of materials submitted in violation of this rule should not respond in kind.

Rule 17. Orders to Show Cause.
Motions should be brought on by order to show cause only when there is a genuine urgency (e.g., applications for provisional remedies), a stay is requested or a statute mandates so proceeding. Absent permission, reply papers should not be submitted on orders to show cause.

Rule 18. Courtesy copies.
Courtesy copies should not be submitted unless requested.

Rule 19. Advance Notice of Motions
(a) Except for motions filed with the RJI, no motion may be made by any party for any relief without a prior conference on the issue raised by the motion. The moving party must advise the court by telephoning chambers of the nature of the relief sort.
(b) The Court will schedule a telephone or court conference with counsel. Counsel fully familiar with the matter and with authority to bind their client must be available to participate in the conference. The unavailability of counsel for the scheduled conference, except
for good cause shown, may result in granting of the application without opposition and /or the imposition of sanctions.
(c) If the matter can be resolved during the telephone conference, an order consistent with such resolution may be issued and faxed to counsel, or counsel will be directed to forward a letter confirming the resolution to be “so ordered”.
(d) If the matter cannot be resolved, the Court will permit the filing of both moving and opposing papers and render a decision on those papers and on oral argument , if indicated.
(e) On the face of all post-RJI notices of motion and orders to show cause, there shall be an affirmation that there has been compliance with this rule.
(f) Nothing in this rule shall be construed to prevent or limit counsel from making any motion deemed appropriate to best represent a party's interests. However, in order to permit the Court the opportunity to resolve issues before motion practice ensues and to control its calendar, in the context of the discovery and trial schedule, pre-motion conferences in accordance herewith must be held. The failure of counsel to comply with this Rule may result in the motion being marked off the calendar until the Court has an opportunity to conference the matter.

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Trials

Rule 20. Pretrial Conference.
The Court will set a date and time for pretrial conference. Prior to the conference, counsel shall confer in a good faith effort to identify issues not in contention, resolve all disputed questions without need for Court intervention, and settle the case. At the conference, counsel should be prepared to discuss all matters as to which there is disagreement between the parties, including those identified in Rules 22-25, and the possibility of settlement. At or before the conference, the Court may require the parties to prepare a written stipulation of undisputed facts.

Rule 21 . Trial Schedule.
Counsel will be expected to be ready to proceed either to select a jury or to begin presentation of proof on the scheduled date. Once a trial date is set, counsel are to immediately determine the availability of witnesses. Witnesses are to be scheduled so that all trial time is completely utilized. Trials will commence each court day and will proceed on a day-to-day basis on such days as the Court directs. Failure of counsel to attend the trial at the time scheduled will constitute a waiver of the right of that attorney and his or her client to participate in the trial for the period of counsel’s absence. With respect to trials scheduled more than 60 days in advance, the actual engagement of trial counsel in another matter will not be recognized as acceptable basis for an adjournment of the trial 22 N.Y.C.R.R. 125.1(g).

Rule 22. Estimated Length of Trial and Witnesses.
At the Pre-Trial Conference or such other time as the Court may set, the parties, after considering the testimony of, and, if necessary, consulting with their witnesses, shall furnish the court with an realistic estimate of the length of trial. Each party shall identify in writing for the court and the other parties the witnesses it intends to call, the order in which they shall testify and the estimated length of their testimony.

Rule 23. Pre-Marking of Exhibits.
Counsel for the parties shall consult prior to trial and shall in good faith attempt to agree upon the exhibits that will be offered into evidence without objection. At the Pre-Trial Conference each side shall then mark its exhibits to which no objection has been made, with plaintiff using numbers for its exhibits and defendant using letters. All exhibits not consented to shall be marked for identification only. At least ten business days prior to trial or such other time as the Court may set, each party shall submit to the court and other counsel a list of the uncontested and contested exhibits and a copy of the latter. If the contested exhibits are exceptionally voluminous, counsel shall consult with the Clerk of the Part for guidance. The court will rule upon objections to the contested exhibits at the earliest possible time after consultation with counsel. Exhibits not previously demanded which are to be used solely for credibility or rebuttal need not be pre-marked.

Rule 24. Identification of Deposition Testimony.
Counsel for the parties shall consult prior to trial and shall in good faith attempt to agree upon the portions of deposition testimony to be offered into evidence without objection. The parties shall delete from the testimony to be read questions and answers that are irrelevant to the point for which the deposition testimony is offered. Each party shall prepare a list of deposition testimony to be offered by it as to which objection has not been made and, identified separately, a list of deposition testimony as to which objection has been made. At least ten days prior to trial or such other time as the court may set, each party shall submit its list to the court and other counsel, together with a copy of the portions of the deposition testimony as to which objection has been made. The court will rule upon the objections at the earliest possible time after consultation with counsel.

Rule 25. Pre-Trial Memoranda, Exhibit Book and Request for Jury Instructions.
(a) Counsel shall submit pre-trial memoranda at the Pre-Trial Conference or such other time as the Court may set. Counsel shall comply with CPLR 2103(e). A single memorandum no longer than 25 pages, with print and margins as set forth in Rule 14, shall be submitted by each side. No memoranda in response shall be submitted.
(b) Counsel shall submit an indexed binder or notebook of trial exhibits for the Court's use. A copy for each attorney on trial and the originals in a like binder or notebook for the witnesses shall be prepared and submitted. Plaintiff’s exhibits shall be numerically tabbed and defendant’s exhibits shall be tabbed alphabetically.
(c) Where the trial is by jury, counsel shall, on the Pre-Trial Conference date or at such time as the court may set, provide the court with case specific, written requests to charge. Where the requested charge is from the New York Pattern Jury Instructions - Civil and no modifications are necessary, a reference to the PJI number will suffice. Counsel shall also submit proposed jury interrogatories.

Rule 26. Preclusion.
Except for good cause shown, no party shall present the testimony of a witness or exhibits that were not identified as provided in Rules 22 - 25 and not identified during the course of disclosure in response to a relevant discovery demand of a party or an order of the Court.

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