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Nassau County


Former Rules of the Justices of the Commercial Division


Note: What Follows Are Former Rules Of The Commercial Division In Nassau County; They Are No Longer In Effect.



[Revised October 2002]
(Explanation of Changes)

[New Rule 19-a Adopted Effective January 1, 2003]

All of the following Rules are applicable in the  Commercial Parts of the Supreme Court, Nassau County. Rules that have been adopted by an individual Justice are identified as such.

Justices of the Division -- Basic Information

Hon. Leonard B. Austin, Part 19
Laustin@courts.state.ny.us
Law Secretary: Fred Hirsch, Esq. 
Personal Secretary: Karen L. Tripolone
Clerk: John Ferguson 
Courtroom Phone: (516) 571-2719
Chambers Phone: (516) 571-2683
Fax Number: (516) 571-0131

Hon. Ira B. Warshawsky, Part 16
Iwarshaw@courts.state.ny.us
Law Secretary: JoAnn P. Browne, Esq.
Personal Secretary: Barbara Cornell
Clerk: Theresa Skubina
Courtroom Phone: (516) 571-2970
Chambers Phone: (516) 571-3351
Fax Number: (516) 571-0163

Commercial Division Special Referees:

Frank Schellace:  (516) 571-2725
Fschella@courts.state.ny.us

Thomas Dana:  (516) 571-1476
Tdana@courts.state.ny.us


I - GENERAL RULES

Rule 1. Appearances by Counsel with Knowledge and Authority. Counsel who appear in the 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. Failure to comply with this Rule will be regarded as a default and dealt with appropriately. See Rule 12. It is important that counsel be 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 by submission of a copy of the stipulation or a letter directed to the Clerk of the Part. Filing a stipulation of discontinuance with the County Clerk does not suffice.

Rule 3. RESERVED FOR FUTURE USE.

Rule 4(a.) Papers by Fax. Division Justices do not accept papers by fax unless indicated otherwise by the Justice in advance in a particular case. Letters sent by fax should not be followed by hard copy unless requested.

(b.) Papers submitted by e-mail. Counsel are requested to submit memoranda of law by e-mail or on a "floppy disk" along with original and courtesy copy.

Rule 5. Information on Cases. Information on future court appearances can be found at the court systems future appearance site. Decisions can be found on the Nassau Division’s Home Page of the Unified Court System’s Internet Website: www.courts.state.ny.us/comdiv or in the New York Law Journal. The Clerk of the Part in question can also provide information about scheduling in the Part (trials, conferences, and arguments on motions). Where circumstances require exceptional notice, it will be furnished directly by Chambers. Counsel who wish to receive a copy of a decision may submit a stamped, self-addressed envelope with their motion papers (not separately).

Rule 6. RESERVED FOR FUTURE USE.


II - CONFERENCES 

Rule 7. Preliminary Conferences; Requests. A preliminary conference will be held within 45 days of assignment of the case to a Commercial Division Justice, unless impracticable for unusual reasons. Where a Request for Judicial Intervention is accompanied by a dispositive motion, the preliminary conference shall take place within 30 days following the decision of such motion (if not mooted). Requests for preliminary conferences in unassigned cases should be filed in Clerk’s Office, Room 152. In assigned cases, counsel should contact the Clerk of the Part if the court itself does not direct a conference in a decision or otherwise. Notice of the Preliminary Conference date will be sent by Chambers.

Rule 8. Consultation Among Counsel and with the Client Prior to Preliminary and Compliance Conferences. 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. It is also suggested that counsel, prior to a conference, determine by consultation with the client the availability and schedules of witnesses at least five weeks in advance.

Rule 9. Familiarity with Outstanding Motions. Counsel must be prepared to discuss and/or orally argue at conference appearances any motions that have been submitted and are outstanding.

Rule 10. Submission of Information. At the preliminary conference, counsel shall 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 11. Discovery Schedule. The preliminary conference will result in the issuance by the court of a case scheduling order. Where appropriate, the order will contain specific provisions for means of early disposition of the case, such as (i) directions for submission to the Alternative Dispute Resolution Program, (ii) a schedule of limited-issue discovery in aid of early dispositive motions or settlement, or (iii) a schedule for dispositive motions before disclosure or after limited-issued disclosure. Unless otherwise ordered, dispositive motions shall be made within 60 days of the certification conference. The order will also contain a comprehensive disclosure schedule, including dates for the completion of impleader and discovery, motion practice, a compliance conference if needed, a date for filing the note of issue, and a date for a pre-trial conference and a trial date.

Rule 12. Non-Appearance at a Conference. The failure of counsel to appear for a conference shall be dealt with by an order directing dismissal, the striking of an answer and an inquest or direction for judgment, or other appropriate sanction. 22 NYCRR §§130-1.2 and 202.27.

Rule 13. 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. Non-compliance with such an order will have the following consequences, at a minimum. If any party fails to produce documents in timely fashion, an appropriate sanction may be imposed against that party pursuant to CPLR 3126. If a party seeking an examination before trial fails to proceed with it on the date or by the deadline fixed, that party will be held to have waived it. If a party fails to submit to an examination as scheduled, either that party will be precluded from introducing testimony at trial or another sanction will be imposed, upon submission of an affidavit of non-appearance within ten days of the non-appearance. If no such submission is timely made, the party seeking the deposition will be held to have waived it. If a party seeks documents as a condition precedent to a deposition and the documents are not produced by the date fixed, the party seeking disclosure must ask the court to intervene on penalty of waiving the deposition.

Rule 14. Disclosure Disputes. Counsel must consult with one another in a good faith effort to resolve all disputes about disclosure. See 22 NYCRR 202.7. Except as provided in Rule 24 hereof, if counsel are unable to resolve a disclosure dispute in this fashion, the aggrieved party shall contact the Clerk of the Part to arrange a conference. Counsel should request a conference by telephone if that would be more convenient and efficient than an appearance in court. Counsel shall retain the right to bring a formal motion to compel or for sanctions or other relief, but only after complying with the foregoing procedure (Rule 24) and complying with a motion schedule set by the court.

Rule 15. Adjournments of Conferences. Adjournments on consent are permitted for good cause where notice of the request is given to all parties. Contact the Clerk of the Part. Adjournment of a conference will not change any subsequent date in the Preliminary Conference Order. Adjournment of a dispositive motion or certification conference may only be done by Chambers.


III - MOTIONS 

Rule 16(a.) Form of Motion Papers. So as to facilitate the framing of a decision and order, the movant shall specify, clearly and comprehensively, 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 (especially on motions pursuant to CPLR 3211 and 3212). Counsel should use tabs when submitting papers containing exhibits. Copies must be legible. If a document to be annexed to an affidavit or affirmation is very voluminous and only discrete portions are relevant to the motion, counsel shall 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, be double-spaced and contain print no smaller than ten-point, on 8 1/2 x 11 inch paper, bearing margins no smaller than one inch. CPLR 2101; 22 NYCRR 202.5(a). The print size of footnotes shall be nine-point. Only memoranda of law, without exhibits, may be submitted as courtesy copies in accordance herewith.

(b.) Proposed Orders. When appropriate, proposed orders should be submitted with motions, e.g., motions to be relieved, pro hac vice admissions, open commissions, etc.

Rule 17. Length of Papers. Unless otherwise permitted by the court for good cause, 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 not made in the memoranda in chief. Affidavits and affirmations are limited to 25 pages each.

Rule 18. Sur-Reply and Post-Submission Papers. Counsel are reminded that the CPLR does not provide for sur-reply papers, however denominated. Nor is the presentation of papers or letters to the court after submission or argument of a motion permitted. Absent express permission in advance, such materials shall not be read. Opposing counsel who receives a copy of materials submitted in violation of this Rule should not respond in kind.

Rule 19. Orders to Show Cause. Motions should be brought on by order to show cause only when there is genuine urgency (e.g., applications for provisional remedies), a stay is required or a statute mandates so proceeding. Absent permission, reply papers should not be submitted on orders to show cause.

Rule 19-a. Statements of Material Facts on Motion for Summary Judgment.

[EFFECTIVE DATE: January 1, 2003]

(i) Upon any motion for summary judgment, other than motions pursuant to CPLR 3213, there shall be annexed to the notice of motion a separate, short and concise statement of the material facts as to which the moving party contends there is no genuine issue to be tried. Failure to submit such a statement may constitute grounds for denial of the motion.

(ii) The papers opposing a motion for summary judgment, other than motions pursuant to CPLR 3213, shall include a separate, short and concise statement of the material facts as to which it is contended that there exists a genuine issue to be tried.

(iii) All material facts set forth in the movant’s statement of material facts will be deemed to be admitted for purposes of the motion unless controverted by the statement required to be served by the opposing party.

(iv) Each statement of material fact by a movant or opponent must be followed by citation to evidence submitted in support of or in opposition to the motion.

Rule 20. Temporary Restraining Orders. Absent extraordinary circumstances, a temporary restraining order will not be issued unless the applicant has given notice to the opposing parties sufficient to permit them an opportunity, if so inclined, to appear and contest the application.

Rule 21. Courtesy Copies. Courtesy copies should not be submitted unless requested or as herein provided.

Rule 22. Oral Argument. Either party may request oral argument on the face of their papers or in an accompanying letter. The Court will determine whether oral argument will be heard and, if so, counsel and the parties shall appear on the date selected by the Court for oral argument. At that time, counsel shall be prepared to argue the Motion, discuss resolution of the issue(s) presented and/or schedule a trial or hearing.

Rule 23. 60 Day Rule. If sixty days have elapsed after a motion has been finally submitted or oral argument held, whichever was later, and no decision has been issued by the court, counsel for the movant shall send the court a letter alerting it to this fact with copies to all parties to the motion.

Rule 24. Advance Notice of Motions

(a.) Prior to the making or filing of any post-RJI motions, except a motion to be relieved as counsel or for pro hac vice admission, counsel for the moving party shall advise the Court in writing (no more than two [2] pages) on notice to opposing counsel advising as to the issue(s) in dispute and requesting a telephone conference. If a cross motion is contemplated, a like letter notice shall be forwarded to the Court and counsel. Such correspondence shall not be considered by the Court in reaching its decision.

(b.) Upon review of the letter application, the Court will schedule a telephone 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 telefaxed to counsel. At the discretion of the court, such conferences may be held on the record.

(d.) If the matter cannot be resolved, the parties will set a briefing schedule for the motion which shall be approved by the Court. Except for good cause shown, the failure to comply with the briefing schedule may result in the submission of the motion unopposed or the dismissal of the motion, as may be appropriate.

(e.) On the face of all post-RJI motions and orders to show cause, there shall be a statement that there has been compliance with this Rule. The failure to comply with this Rule may result in rejection of the motion, its denial and/or the imposition of sanctions.


IV - TRIALS 

Rule 25. 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 immediately to determine the availability of witnesses. If, for any reason, counsel are not prepared to proceed on the scheduled date, the court is to be notified within five days of the date on which counsel are given the trial date or, in extraordinary circumstances, as soon as reasonably practicable. Failure of counsel to provide such notification will be deemed a waiver of any application to adjourn the trial because of the unavailability of a witness. Witnesses are to be scheduled so that all trial time is completely utilized. Trials will commence each court day promptly at 9:30 a.m. and will proceed on a day-to-day basis from 9:30 a.m. to 4:30 p.m., Monday through Thursday, unless the Court otherwise 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. There shall be no adjournment of a trial except for good cause shown. Actual engagement of trial counsel on trials scheduled more than 60 days in advance will not be recognized. 22 NYCRR 125.1(g).

Rule 26. Estimated Length of Trial. At least five days prior to trial 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 a realistic estimate of the length of the trial.

Rule 27. Motions in Limine. The parties shall make all motions in limine returnable on the scheduled pre-trial conference date. Unless otherwise ordered by the court in advance, the moving and opposition papers, if any, on such motions shall be no longer than 10 pages per issue and 5 pages per issue in opposition. These papers shall comply with the limitations as to print size and margins set forth in Rule 16(a) above.

Rule 28. 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 date, each side shall then mark its exhibits to which no objection has been made. All exhibits not consented to shall be marked for identification only (ID). At least five 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 exhibits reflecting "in EV." or "ID only". If the trial exhibits are exceptionally voluminous, counsel shall consult the Clerk of the Part for guidance. The Court will Rule upon the 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. This Rule shall be coordinated with Rule 30(b).

Rule 29. 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 testimony is offered. Each party shall prepare a list of testimony to be offered by it as to which objection has not been made and, identified separately and clearly, a list of testimony as to which objection has been made. At least five 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 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 30. Pretrial Conference. The court will set a 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 shall be prepared to discuss all matters as to which there is disagreement between the parties, including those identified in Rules 27-29, 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 31. Pre-Trial Memoranda, Exhibit Book, and Requests 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 size and margins as set forth in Rule 16 above, shall be submitted by each side. No memoranda in response shall be submitted.

(b.) At the pre-trial conference, counsel shall submit an indexed book of trial exhibits for the Court's use. A copy for each attorney on trial and the originals in a notebook for the witnesses. 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, provide the Court with case-specific requests to charge. Where the requested charge is from the New York Pattern Jury Instructions - Civil, a reference to the PJI number will suffice. Counsel shall also submit proposed jury interrogatories. Submissions should be by hard copy and disk or e-mail attachment in WordPerfect 10 format.

Rule 32. Scheduling of Witnesses. At the pre-trial conference, 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 33. Preclusion. Except for good cause shown, no party shall present the testimony of a witness, portions of deposition testimony, or exhibits that were not identified as provided in Rules 28, 29, and 31 hereof and not identified during the course of disclosure in response to a relevant discovery demand of a party or an order of the court.

 

APPENDIX

GUIDELINES FOR ASSIGNMENT OF CASES TO THE COMMERCIAL PARTS

In general, the Commercial Parts of the Supreme Court, Nassau County, entertain complex commercial and business disputes in which a party seeks compensatory damages totaling $ 75,000 or more. Due to caseload considerations, the Justices are empowered to transfer out of the Division cases which, in their judgment, do not fall within this category notwithstanding that a party has described the case as "commercial" on the RJI. 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 (c) for documentation which should accompany the RJI).

(a) The following will presumptively be transferred out of the 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 a personal injury or non-commercial property damage action;

(3) Residential real estate disputes, including landlord-tenant matters;

(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 policies; and

(6) Attorney malpractice actions.

(b) Actions in which the principal claims involve the following will presumptively be retained in the Division provided that the money threshold is met:

(1) Breach of contract or fiduciary duty, fraud, misrepresentation, business tort (e.g., unfair competition), or statutory violation arising out of business dealings (e.g., sales of assets or securities, corporate structurings, partnership, shareholder, joint venture, and other business agreements, trade secrets and restrictive covenants);

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

(3) Transactions involving commercial real property;

(4) Shareholder derivative actions and commercial class actions;

(5) Commercial bank transactions;

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

(7) Malpractice by accountants or actuaries;

(8) Environmental insurance coverage litigation; and

(9) Corporation or Partnership dissolutions.

(c) The determination as to whether a case should be retained in a Commercial Part will be made as soon as a matter is assigned to a Justice. For this purpose, counsel must annex a brief sworn statement justifying the Commercial designation, and a copy of the summons and complaint or summons with notice, if any, to any submission accompanying an RJI. Retained cases will remain in the Commercial Part.

(d) Special proceedings (including applications pursuant to CPLR 3102(c) and (e) relating to CPLR Article 75) and foreclosures are randomly assigned among all Justices in the Supreme Court, Nassau County. Even when parties believe that a special proceeding or foreclosure has a "commercial" character, the "special proceedings" or "foreclosure" portion of the RJI should be completed by the filing party, not the "commercial" section. However, prior to the actual assignment of the matter to a Justice, a party to a commercial special proceeding may apply to the Administrative Judge to override the computer and designate the matter as "commercial" for treatment if it raises issues of extraordinary complexity.

(e) An order of transfer issued by a Justice of a Commercial Part is an administrative matter. A party claiming to have been aggrieved by such an order may seek review by letter application (two pages maximum, with a copy to all parties) to the Administrative Judge. Any such application that is not made promptly after the issuance of the transfer order will be denied as untimely irrespective of its merits. The order of the Administrative Judge is final and subject to no further review or appeal.

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