RULES (POLICIES) OF JUSTICES WITH IAS CASELOAD
THIRD JUDICIAL DISTRICT RULES
Case Initiation and Assignment Process
Albany County Supreme Court - Commercial Division
Albany Motion Terms
All Election Law Cases
Proceedings under Article 81 of the Mental Hygiene Law
Expert Disclosure Rule
TRIAL ACTIVITY RULES
CASE INITIATION AND ASSIGNMENT PROCESS
A litigant shall first pay for an index number and a Request for Judicial Intervention in the County Clerk's Office in the county of the venue of the case and then file in the Chief Clerk's Office the Request for Judicial Intervention. The chief clerk shall assign a consecutive number to each request for judicial intervention. This will become the case identification number. The index number, the request for judicial intervention number and the assigned justice's name shall appear on all subsequent papers filed with the court. With the exception of those matters specified for Special Assignments, all contested matters will be assigned to an IAS justice. If there is any question, the clerk shall refer the matter to a justice for determination.
The District Administrative Judge will:
a) Make case assignments when judges are disqualified;
b) Reassign cases if IAS Justice will be absent for a lengthy period;
c) Assign cases to Acting Justices of the Supreme Court and Judicial Hearing Officers; and
d) Adjust assignment patterns to insure equal distribution of cases.
Motion Filing Fee: In general, any filing subsequent to the commencement of an action which is designated as a motion or cross-motion requires the payment of a filing fee to the County Clerk’s Office prior to submission to the Supreme Court Clerk’s Office for referral to the assigned judge. The fee is assessed regardless of whether an application is made by notice of motion, order to show cause or ex parte. No fee will be charged upon the filing of a motion for poor person status on in conjunction with an application which served to commence an action or special proceeding. In the event a motion is received by the court unaccompanied by proof of payment to the County Clerk, the Supreme Court Clerk’s Office will telephone the submitting party to advise that the application will be held pending receipt of the filing fee only until the return date of the motion. If proof of payment is not submitted to the Supreme Court Clerk’s Office by the return date (ex parte applications will be held ten days), the papers will be returned by mail with a notification that the motion has been removed from the court’s calendar and that it must be re-noticed and re-filed with the court along with the requisite filing fee. Inquiries concerning the applicability of the motion fee to a proposed filing may be directed to the Supreme Court Clerk’s Office.
All motions shall be returnable before the assigned justice. Supreme Court Justices are sitting at "All Purpose Terms of Court" at all times, therefore all motions, except for certain matters in Albany County as specified below, brought on by notice of motion or by order to show cause will be made returnable on any day, Monday through Friday, as chosen by the movant in compliance with the CPLR. Parties shall submit all papers in a timely fashion as required by the CPLR by delivering them or mailing them directly to the Supreme Court Clerk’s office (see Section 202.8 of Uniform Rules for Supreme and County Courts [22 NYCRR 202.8]), except that motions and other applications subject to a filing fee shall first be presented to the County Clerk’s Office for payment of the requisite fee and then subsequently filed with the Supreme Court Clerk’s Office.
All motions made returnable in a county other than the county of the venue of the case shall be forwarded by the chief clerk of that court to the chief clerk of the county of the venue of the case to be submitted to the justice assigned to the case as herein provided except that where a motion is brought pursuant to CPLR 5221(a)(4) seeking the enforcement of a judgment (i.e., contempt of court) in a county in which the judgment debtor resides, is employed, or has a place of business, which is a county other than that where the judgment was initially entered, the motion shall be put on a county court motion calendar of the county where it was made returnable, provided an index number and RJI number have been obtained in the county of original venue. Upon determination of the application, all papers will be returned for filing to the county of original venue and the case remitted for further proceedings as may be necessary.
All motions are deemed “submitted” on the return date and no appearances are required by the parties. A party may request oral argument on a motion by indicating such request on the first page of the notice of motion, order to show cause, or answering papers in the area across from the caption of the action/proceeding. In the event oral argument is requested, the parties should not appear on the return date. At the discretion of the assigned judge and upon the granting of a request for oral argument, the parties will be notified by chambers of the scheduled time and place at which argument will be heard. Where a motion is brought on by order to show cause, the court may set forth in the order that appearances and/or oral argument are required on the return date of the motion.
An application for the issuance of an order to show cause to punish for contempt shall be made directly to the assigned justice or judge who signed the judgment or order which is the subject of the contempt application. In a situation where there is no assigned justice or judge, the chief clerk shall, upon receipt of a request for judicial intervention (if one is required), assign a justice or judge and the applicant shall then make the application directly to the assigned justice or judge. If the assigned justice or judge is unavailable, any other justice or judge may issue the order to show cause, returnable before the assigned justice or judge, at a date and time when the assigned justice or judge will be available.
A justice who signs an order to show cause which contains a stay or temporary restraining order may, if appropriate, require a hearing on short notice to determine if the stay or TRO should be continued until the return date before the assigned justice.
Prior to the submission of a notice of motion relating to disclosure or a bill of particulars, the parties must make a good faith effort to resolve the matter in question and submit an affirmation attesting to this good faith effort. The affirmation of good faith effort to resolve the issues raised by the motion shall indicate the time, place and nature of the consultation and the issues discussed and any resolutions, or shall indicate good cause why no such conferral with counsel for opposing parties was held. An assigned justice may dismiss a motion for failure to demonstrate that such effort was made with leave to renew the motion after such effort has been demonstrated.
(See, Section 202.12 of Uniform Civil Rules for the Supreme and County Courts.)
Any available Supreme Court Justice present may perform the following functions. The chief clerk's office will assist in the referral of these matters to the appropriate justice.
a) Hold Mental Health Hearings (except for Albany County);
b) Impanel Supreme Court Trial and Grand Juries and receive Grand Jury Reports;
c) Entertain Orders to Show Cause;
d) Entertain Temporary Restraining Orders;
e) Hear requests for emergency medical services;
f) Entertain Infant Settlements;
g) Entertain bail applications;
h) Handle Writs of Habeas Corpus;
i) Perform marriages;
j) Handle emergency-type matters.
In any county, during periods when no Supreme Court Trial Term is in session in that county, any county-level judge may perform such functions if permitted by law.
ALBANY COUNTY SUPREME COURT-COMMERCIAL DIVISION
The Commercial Division of the Albany County Supreme Court exercises jurisdiction over selected business and commercial disputes in which the amount at issue generally involves damage claims in a minimum amount of $25,000. as well as claims for unspecified amounts where the value of the commercial asset(s) in dispute exceeds $25,000. A separate publication promulgating the rules and criteria relating to the filing and management of Commercial Court cases in this part may be obtained from the Albany County Supreme Court Clerk’s Office. Also, § 202.70 of the Uniform Civil Rules of the Supreme and County Courts sets forth statewide rules effective January 17, 2006.
ALBANY MOTION TERMS
There shall be a Mental Hygiene Calendar each Thursday and a Motion Term on each Friday in the Supreme Court, Albany County. The Friday Motion Term shall include all Article 78 Proceedings involving New York State and proceedings commenced pursuant to Article 14 of the Civil Service Law (including applications for injunctive relief made pursuant to Section 209-a of the Civil Service Law). All non-State Article 78 proceedings commenced in Albany County shall be assigned at random on the "wheel" to the IAS Justices to whom Albany County cases are assigned. Generally, parties will be granted only one adjournment for the Friday Motion Term. Requests for an adjournment of the proceeding or an extension of time in which to submit papers must be made in writing to the Supreme Court Clerk’s Office for referral to the assigned judge for consideration. Upon the request and consent of all parties to an Article 78 proceeding, a petition may be “marked off” the calendar and re-noticed for a subsequent motion term. When a motion to dismiss the petition in an Article 78 is denied by the assigned judge, the matter shall be re-noticed to be heard before the same assigned judge.
ALL ELECTION LAW CASES
All proceedings commenced pursuant to Article 16 of the Election Law shall be made returnable in the county in which the decision sought to be reviewed was made. In the event a hearing is required to determine a proceeding under the Election Law, the IAS Justice may, in the exercise of discretion, transfer the matter to a trial term in the county in which the proceeding is pending.
All orders to show cause bringing on a proceeding under the Election Law shall be made returnable within ten (10) days (or sooner if necessary) and all arguments, hearings and decisions shall be expedited to insure that appeals from the trial court can be heard in a timely fashion according to the schedule set annually by the Appellate Division, Third Department.
PROCEEDINGS UNDER ARTICLE 81 OF THE MENTAL HYGIENE LAW
All applications for orders to show cause bringing on a proceeding for the appointment of a guardian pursuant to the Mental Hygiene Law shall be accompanied by a Request for Judicial Intervention and shall be made returnable before the IAS Justice assigned to that proceeding.
EXPERT DISCLOSURE RULE
Except as otherwise directed by the Court, a party who has the burden of proof on a claim, cause of action, damage or defense shall serve its response to an expert demand pursuant to CPLR 3101(d) on or before the filing of the Note of Issue. Such party has until the filing of the Note of Issue to serve such response regardless of how early the demand is made. Any opposing party shall serve its answering response pursuant to CPLR 3101(d) within 60 days after the filing of the Note of Issue. Any amended or supplemental expert disclosure shall be allowed only with the permission of the Court. Unless the Court directs otherwise, a party who fails to comply with this rule is precluded from offering the testimony and opinions of the expert for whom a timely response has not been given.
The statutory stay for disclosure [CPLR 3214(b)] upon the service of a dispositive motion under CPLR 3211 shall not apply to the service of these expert responses.
The word “expert” shall include, but is not limited to, any physician, dentist, chiropractor, psychiatrist, psychologist, other health care provider of any specialty, economist, engineer, architect, lawyer, accountant, appraiser, rehabilitation counselor or other person who will testify concerning his/her qualifications and give opinions concerning the issues in the case. However, “expert” shall not include a treating physician or other treating health care provider whose record(s), and report(s) have been timely provided and whose testimony is limited solely to the contents of the records or reports provided. In the event that a treating physician or other treating health care provider is intending to testify as to matters not within the contents of the records or reports provided, then disclosure as an “expert” is required.
This rule shall apply to all actions commenced after April 1, 1999 and to those commenced before that date where a Note of Issue has not been filed.
Any motion by a party to preclude, or limit expert testimony under this rule, must be made as soon as practicable but no later than forty-five (45) days after the party’s receipt of the expert disclosure or the motion will be waived.
This rule does not apply to matrimonial actions.
TRIAL ACTIVITY RULES
DAY CERTAIN ASSIGNMENT PROCESS
An IAS assigned Justice shall manage all cases assigned to the point of trial readiness at which time a Note of Issue shall be filed indicating that the case is ready for trial. The Note of Issue shall be forwarded to the IAS Justice who shall set the matter down for a conference and give the matter a Day Certain. The IAS Justice shall inform the Chief Clerk that the matter has been certified to trial which letter shall also confirm the Day Certain. When any case is certified as trial ready by the IAS Justice, it shall be given a Day Certain.
In determining the particular Day Certain, the IAS Justice shall first ascertain the availability of the specific date from the Chief Clerk's Office which shall maintain a calendar for the purpose of scheduling Days Certain. In Albany County, the maximum number of days certain scheduled shall be ten (10) jury cases on Mondays, six (6) jury cases on Tuesdays and four (4) non-jury cases on Wednesdays. In Rensselaer and Ulster Counties, the maximum number of days certain shall be six (6) jury cases on Mondays, and three (3) non-jury cases on Wednesdays. In Sullivan County, the maximum number of days certain shall be four (4) jury cases on Mondays and three (3) non-jury cases on Wednesdays. In Greene County, the maximum numbers of days certain shall be four(4) jury cases on Mondays and two (2) non-jury cases on Wednesdays during each trial term. In Columbia and Schoharie Counties, the maximum number of days certain shall be four (4) jury cases on Mondays and two (2) non-jury cases on Wednesdays during each trial term.
Prior to the beginning of each Trial Term, the Chief Clerk shall prepare the Day Certain Calendar for that particular term setting forth all appropriate information including the name of the case, date of trial and attorneys representing the various parties. Said calendar shall be provided to the Part 1 Justice at least one day prior to the calendar call.
Applications for adjournment of a scheduled trial date shall be addressed to the IAS Justice until the commencement of the trial term for which the case has been set down for trial. Once a trial term has commenced, applications for adjournment of the trial of a case scheduled to be tried during that trial term shall be addressed to the Part I trial Justice only.
PART I JUSTICE
The Part 1 Justice assigned to each respective county is the duty judge for that particular term. In addition to conferencing each case assigned for trial in advance of the Day Certain, the Part I Justice shall keep in close communication with the Chief Clerk and the Commissioner of Jurors so as to insure that only the necessary number of prospective jurors are called in.
Every effort should be made to have the attorneys involved consider non-jury trials, if appropriate, and the use of Judicial Hearing Officers, as available. The back-up trial justices assigned to each term will be assigned as needed to trials by the Part I Justice. Once the list of back-up trial justices assigned to that term has been exhausted, the Part I Justice shall communicate with the other Part I Justices in the district, or in the alternative the District Administrative Judge, so as to utilize every available back-up trial justice for any particular trial need in the district. Where the need arises and their schedules permit, Part I Justices are also expected to try cases on their Part I calendar. If, after all of the aforesaid options are exhausted, the Part I Justice still cannot find an available trial justice, the District Administrative Judge should be consulted so that all available resources can be considered, including but not limited to the use of available county level judges as Acting Supreme Court Justices on a case-to-case basis.
All ex parte matters, orders to show cause in unassigned cases, and other miscellaneous matters (including welcoming trial jurors) should be referred by the Chief Clerk's office to the Part I Justice.
The Part I Justice, in the event a particular case assigned a Day Certain is not ready for trial, shall either give the matter a future Day Certain or shall strike the Note of Issue and return the case to the assigned IAS Justice, whichever procedure is appropriate in the Part I Justice's opinion. Under no circumstances will a case be marked over the term without a new Day Certain. Furthermore, no case with a Day Certain shall be put over the term due to the unavailability of a Trial Justice without consultation with the District Administrative Justice. In the event the case is returned to the IAS Justice, that justice shall approve the filing of a new Note of Issue, without costs, when the case is ready for trial and shall assign a new Day Certain. If a jury fee was paid, it will not be required to be paid again.
All Preference cases shall be appropriately designated and the Preference shall be honored by the Part I Justice.
All motions made after a case has been assigned a Day Certain shall be referred to the IAS Justice unless the motion is returnable during the term in which the matter has been assigned a Day Certain, in that event the matter will be referred to the Part 1 Justice for that particular term who may entertain the motion or refer such motion to the IAS Justice. Under those circumstances, the Part I Justice shall decide whether or not to strike the Note of Issue or assign the matter a new Day Certain.
JURY SELECTION IN CIVIL CASES
The Part I Justice assigned to each county, or a Justice or Judicial Hearing Officer designated by the Part I Justice shall preside at the commencement of the voir dire and determine, in his or her discretion, whether in-court supervision should continue over all or a portion of the remainder of the voir dire.
The Part I Justice, or a Justice or Judicial Hearing Officer designated by the Part I Justice shall determine, in his or her discretion, after consultation with the attorneys for the parties where appropriate, the period of time to be afforded each party for jury selection.
The attorneys conducting the voir dire shall utilize juror questionnaires furnished by the Commissioner of Jurors prior to the commencement of the voir dire.
All prospective jurors (six plus the agreed upon number of alternates) will be selected at random from the panel and seated in the jury box. Unless there is consent of all parties and the presiding judge to designate alternates, the jurors selected will not be designated. The attorney for plaintiff will first examine these prospective jurors followed by the attorney for defendant who will then examine them. If there are additional parties, each party will examine the potential jurors in the order they are named in the pleadings.
After the prospective jurors have been examined by counsel for all parties, counsel will advise the Clerk of the Court or the Court of any peremptory challenges on an alternating basis, in the same order as was followed for the examination. (For example, if there are two parties, plaintiff makes the first challenge, then defendant makes the second challenge, then plaintiff makes the third challenge, defendant makes the fourth challenge, etc.). If a party fails to make a peremptory challenge when it is that party’s turn to do so , that party may not thereafter make a peremptory challenge as to that group of jurors.
Once a party has stated that a juror is satisfactory or has failed to exercise a peremptory challenge after having the opportunity to do so, the party cannot exercise a peremptory challenge as to that prospective juror. Challenges for cause may be made at any time.
Any seats vacated because of the exercise of peremptory challenges will then be filled, and the examination of peremptory challenge procedure will be repeated as to the newly seated prospective jurors only. The process will continue until a complete jury has been selected.
After all parties state that the jurors then seated are satisfactory, the jury will be sworn and the trial will commence.
TRIAL RULES AND SPECIAL DIRECTIVES
Prior to jury selection, marked pleadings, copies of the bills of particulars and the demands therefor, discovery responses and the demands therefor, and expert reports shall be presented to the Court.
Prior to jury selection, a list (without the charge) of PJI jury requests citing the section numbers and title of the PJI jury charge should be available to the Court. Other requests shall be typed on separate sheets with appropriate sources or citations. A charge conference will be held prior to summations.
Prior to jury selection, each party shall provide the Court and opposing counsel with a one-page statement of the party’s contentions and a list of witnesses to be called at trial.
Experts who testify at trial must bring with them to Court their entire file and all documents considered in arriving at their opinion(s).
All motions in limine should be in writing and should be prepared and filed at the earliest possible time to the extent that the basis for these motions are know by a party and will arise during the trial of the action.
Exhibits should be pre-marked by the Court Reporter. Counsel shall also confer prior to trial to determine if the admission into evidence of any exhibits will be stipulated, and advise the Court of that prior to trial.
Trial briefs are suggested if intricate evidentiary or trial issues are anticipated.
Verdict sheets: Counsel shall cooperate to prepare an agreed verdict sheet. If that is not possible, then the parties shall submit separate proposed verdict sheets following the suggested forms in the PJI (see PJI Supplement Vol. 1B, 2:275 and 2:301). Each question shall be on a separate page.
For good cause shown, and in the interest of justice, the Court in which an action or proceeding is pending may waive compliance with any of these rules unless prohibited by doing so by Statute or a Rule of the Chief Judge.