Note: What Follows Are Former Rules Of The Commercial Division In New York County; They Are No Longer In Effect.
Rule 19-a Modified Effective June 1, 2004
All of the following Rules, with a few exceptions, are applicable in the Parts of all Justices sitting in the Commercial Division, Supreme Court, NY County. Rules that have been adopted by fewer than all Justices are identified in the Basic Information section that follows immediately hereafter. Also, following the text of each such non-uniform Rule appear the names of the Justices who have adopted that Rule. Absent such a designation, Rules are uniform throughout the Commercial Division Parts. In addition, non-commercial cases assigned to Justice Helen E. Freedman (Part 39) are governed by Appendix B hereto.
Information on the operations of the Division, including motion submission procedures in the Motion Support Office Courtroom, can be obtained from the Division’s Operating Statement, which is available on the Division’s home page on the Unified Court System Internet website and in the Commercial Division Support Office (Room 148). Information on developments in individual cases, including changes in appearance dates and the issuance of decisions, can be obtained by e-mail notification from the court system’s case tracking service. Information is also available from private services.
JUSTICES OF THE DIVISION -- BASIC INFORMATION
HON. HERMAN CAHN HON. HELEN E. FREEDMAN
Part 49, Room 232 Part 39, Room 208
Motions: Mon., 2 PM Motions: Thurs., 2 PM
Conferences: Daily, 9:30 AM Conferences: Tues., 9:30 AM
(646)386-3306 (646) 386-3275
Individual Rules: Rule 25 (b) Individual Rules: Rule 25 (a), 26,
[For non-commercial cases see Appendix B]
HON. BERNARD J. FRIED HON. IRA GAMMERMAN (JHO)
Part 60, Room 540 Part 27, Room 242
Motions: Thurs. Motions: Mon.-Thurs., 4 PM
Conferences: Conferences: Mon.-Thurs., 4 PM
Mon., Tues., & Fri. (646) 386-3265
(646) 386-3310 Individual Rules: Rules 6, 25 (a), 26, 27
The court will provide times for appearances; Appendix A
Please inquire of the Part clerk.
Individual Rules: 25(b)
HON. RICHARD B. LOWE HON. KARLA MOSKOWITZ
Part 56, Room 218 Part 3, Room 248
Motions: Wed., 9:30 AM Motions: Thurs., 9:30 AM
Conferences: Tues., 9:30 AM Conferences: Tues., and Thurs., 9:30 AM,
(646) 386-3262 11 AM and 2 PM
Individual Rules: Rule 25 (a), 32-a (646) 386-3300
Individual Rules: Rules 10, 25 (b), 26,
HON. CHARLES E. RAMOS
Part 53, Room 238
Motions: Tues., 9:30 AM
Conferences: Mon. & Thurs., 9:30 AM
Individual Rules: Rules 25 (b), 36, 37
Appendices C and D
The following Rules govern cases in the Commercial Division. However, in any case filed by electronic means, these Rules shall apply to the extent not inconsistent with Section 202.5-b of the Uniform Rules for the Trial Courts.
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. It is important that counsel be on time for all scheduled appearances.
Rule 1-a. Admissions Pro Hac Vice. An attorney who seeks to be or is admitted pro hac vice shall comply with Section 520.11 of the Rules of the Court of Appeals. See also Section 602.2 of the Rules of the Appellate Division, First Department. In addition, attorneys who seek to be admitted pro hac vice in a Commercial Division case shall comply with the following requirements:
(a) Applications Without Consent. An applicant who seeks admission without the consent of all other parties to the case shall bring on a motion by notice of motion or, in the event of urgent circumstances, by order to show cause. The applicant shall submit the following in support of said application:
(i) An affidavit/affirmation in support by an attorney who is a member in good standing of the Bar of the State of New York and is the attorney of record in the case for the party for whom the applicant wishes to appear.
(ii) An affidavit in support by the applicant. In this affidavit, the applicant shall include a statement that he/she has become familiar with the standards of professional conduct imposed upon members of the New York Bar and relevant statutes, rules and procedures and will abide by them and is in good standing as an attorney in the state, territory, district or foreign country in which he/she was admitted. The applicant shall also specify the number of times he/she has appeared in the courts of New York State pro hac vice and whether he/she is currently doing so. If the attorney has been sanctioned for violation of New York statutes, rules or standards of professional conduct in any of these other cases, the affidavit shall so note and provide a summary of the circumstances.
(iii) A Certificate in Good Standing or similar document from the jurisdiction of admission issued within the preceding 30 days and demonstrating that the applicant is in good standing in that jurisdiction.
(b) Applications on Consent. If the application is on consent of all parties, the applicant shall submit a stipulation signed by all parties in lieu of a notice of motion/order to show cause, a proposed order in the form set forth in Appendix E to these Rules, and the papers set forth in Items (i) through (iii) in the preceding subdivision of this Rule.
[Effective Date: February 9, 2004]
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. Counsel are reminded that, effective July 14, 2003, the defendant must file a stipulation of settlement or stipulation of discontinuance. The original stipulation shall be filed with the County Clerk (Room 160, fee $ 35).
Rule 3. Cases Marked Off Calendar. Unless otherwise directed, a stipulation is required to restore to the trial calendar (for post-note-of-issue cases) or to active status (for pre-note-of-issue cases) all cases that have been "marked off," together with an attorney’s affidavit explaining the default.
Rule 4. Papers by Fax. Division Justices do not accept papers of any sort by fax unless indicated otherwise by the Justice in advance in a particular case.
Rule 5. Information on Cases. Information on future court appearances can be found on the court system’s Future Court Appearance site (at http://www.courts.state.ny.us). Information on developments in individual cases, including changes in appearance dates and the issuance of decisions, can be obtained by e-mail notification from the court system’s case tracking service, eTrack. Information is also available from courthouse terminals or the New York Law Journal, as well as from private services. The Clerk of the Part in question can also provide information about scheduling in the Part (trials, conferences, and arguments on motions in the Part). Counsel should not telephone Chambers. Where circumstances require exceptional notice, it will be furnished directly by Chambers or the Part. Decisions of the Division are made available on the Division’s home page on the Unified Court System’s Internet website
Rule 6. Special Part 27 Calendar Number. Every case in Part 27 will be assigned a special Part calendar number. This is done to facilitate efficient handling of all matters and to enable both courtroom and Chambers personnel to respond to inquiries. Counsel will be advised of this number at the first conference or initial contact with the court. This number must be placed conspicuously on all files. Any communication with the court or any papers filed must contain the Part calendar number. No communication or paper will be considered by the court unless the Part calendar number is indicated. Adopted by: Justice Gammerman.
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 disposition of such motion (if not mooted by that disposition). Requests for preliminary conferences in unassigned cases should be filed in the Commercial Division Support Office (Room 148)(accompanied by a copy of the pleadings). 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.
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 at conference appearances any motions that have been submitted and are outstanding.
Rule 10. Submission of Information, Part 3. 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 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. Adopted by: Justice Moskowitz.
Rule 11. Discovery Schedule. The preliminary conference will result in the issuance by the court of a case scheduling order, as indicated in the Division’s Operating Statement. Where appropriate, the order will contain specific provisions for early means of disposition of the case, such as (i) directions for submission to the Alternative Dispute Resolution Program of the Commercial Division, (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. 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 target trial date.
Rule 12. Stay of Discovery. In Part 49: The making of a motion pursuant to CPLR 3211 or 3212 shall not stay the production of documents. CPLR 3214(b). While these types of motions are pending, all other discovery requests will be handled on a case-by-case basis. In all other Parts: These motions shall not stay disclosure unless the Justice directs.
Rule 13. 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. Uniform Rule 202.27.
Rule 14. 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 except in extraordinary circumstances and only upon approval of the court, which shall be requested in advance of the deadline. Non-compliance with a case scheduling 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 expeditiously after 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 15. Disclosure Disputes. Counsel must consult with one another in a good faith effort to resolve all disputes about disclosure. See Uniform Rule 202.7. 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.
Rule 16. Adjournments of Conferences. The adjournment of conferences is allowed as follows:
Cahn, Fried, JJ.: Adjournments permitted for good cause; contact Chambers by conference call.
Freedman, Moskowitz, Ramos, JJ.: No adjournments permitted.
Gammerman, J.: Adjournments permitted for good cause; contact the Clerk of the Part.
Lowe, J.: One adjournment only permitted on a showing of good cause. The adjournment may not exceed 30 days.
Rule 17. 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, or in a concluding section of a memorandum of law, the exact relief counsel seeks. 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). In addition, counsel shall attach copies of all pleadings to a motion, regardless of its nature, when the motion is accompanied by a Request for Judicial Intervention in which assignment to the Commercial Division is sought. Counsel should always 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 12-point, on 8 ½ x 11 inch paper, bearing margins no smaller than one inch. CPLR 2101; Uniform Rule 202.5(a). The print size of footnotes shall be nine-point. Rules of the Appellate Division, First Department, Section 600.10(a).
Rule 18. Length of Papers. Unless otherwise permitted by the court for good cause, briefs or memoranda of law are limited to 30 pages each. Affidavits and affirmations are limited to 25 pages each.
Rule 19. 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 will be returned unread. Opposing counsel who receives a copy of materials submitted in violation of this Rule should not respond in kind.
Rule 19-a. Statements of Material Facts on Motion for Summary Judgment. [ Effective until May 31, 2004 ]
(a) Upon any motion for summary judgment other than a motion 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.
(b) The papers opposing a motion for summary judgment other than a motion 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.
(c) All material facts set forth in the statement required to be served by the moving party will be deemed to be admitted for purposes of the motion unless controverted by the statement required to be served by the opposing party.
(d) 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.
[Effective date: April 1, 2002][Revised May 3, 2002, Effective June 1, 2002; revision inserted references to CPLR 3213]
19-a. Statements of Material Facts on Motion for Summary Judgment. [Effective June 1, 2004 ]
(a) Upon any motion for summary judgment other than a motion pursuant to CPLR 3213, 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. Failure to submit such a statement may constitute grounds for denial of the motion.
(b) The papers opposing a motion for summary judgment other than a motion pursuant to CPLR 3213 shall include a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party, and, if necessary, additional paragraphs containing a separate, short and concise statement of the additional material facts as to which it is contended that there exists a genuine issue to be tried.
(c) Each numbered paragraph in the statement of material facts required to be served by the moving party will be deemed to be admitted for purposes of the motion unless specifically controverted by a correspondingly numbered paragraph in the statement required to be served by the opposing party.
(d) Each statement by the movant or opponent pursuant to subdivision (a) and (b) hereof, including each statement controverting any statement of material fact, must be followed by citation to evidence submitted in support of or in opposition to the motion.
[Effective date: April 1, 2002][Revised May 3, 2002, Effective June 1, 2002; revision inserted references to CPLR 3213][Revised April 28, 2004, Effective June 1, 2004; revision inserted underscored material and made certain deletions].
Rule 20. 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 21. Temporary Restraining Orders. Absent extraordinary circumstances, the court will not issue a temporary restraining order 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 22. Courtesy Copies. Courtesy copies should not be submitted. However, parties in cases assigned to Part 53 may elect to submit courtesy copies of motion papers provided such submissions are on a diskette in WordPerfect 5.1, Novell WordPerfect 6.1 or Corel WordPerfect 8 format.
Rule 23. Oral Argument. Unless otherwise directed, notice will be given as to motions that shall be orally argued and those arguments will take place at the time and on the day indicated above in the Basic Information section. Motions seeking provisional remedies usually should be brought on by way of order to show cause and will generally be argued. Counsel should not request argument of motions by separate correspondence. When argument is scheduled, counsel must appear to argue or the motion may be denied on default or otherwise disposed of notwithstanding any papers previously submitted. Testimonial hearings will not take place on the motion days listed above. Calendars of motions to be argued in the Parts of the Division can be found on the Future Court Appearance System (see Rule 5) and are published on the morning of the return date and on the day before in the New York Law Journal under each Part.
Rule 24. Adjournment of Oral Argument. Adjournment of oral argument is allowed as follows:
Cahn, J.: Once, by stipulation or all sides in person.
Freedman, Fried, Gammerman, JJ.: For exceptional cause only.
Lowe, J.: One adjournment only permitted on a showing of good cause. The adjournment may not exceed 30 days.
Moskowitz, J.: Once, by written stipulation submitted to the Part at least 24 hours prior to the argument date.
Ramos, J.: Only one permitted.
Rule 25. Pre-Motion Conference/Teleconference.
(a) Motions in Parts 27, 39 and 56. Counsel have the right to make a motion without permission of the court. However, it is requested, in the interests of expedition and the minimization of expense, that counsel, prior to making a motion for any relief in Parts 27 and 39 or with regard to discovery in Part 56, advise the court of an intention to do so. It is requested that counsel do this by submitting a letter (no more than two pages) setting forth the nature of the motion and, in summary form, the basis for the relief to be sought. A copy of the letter shall be sent to all counsel. The court may attempt to resolve the matter by in person or telephonic conference. All counsel will be notified of the schedule for any such conference.
Adopted by: Justices Freedman, Gammerman and Lowe.
(b) Motions in Other Parts. Prior to making any motion in cases assigned to other Justices, counsel shall confer with one another as to whether the parties agree that a pre-motion conference or teleconference would facilitate resolution or limitation of the dispute. If so, the prospective movant shall contact the clerk of the Part and request a conference or, if more convenient and efficient, a teleconference.
Adopted by: Justices Cahn, Fried, Moskowitz and Ramos.
[Modified effective February 9, 2004]
Rule 26. Trial Date; Jury Selection, Parts 3, 27 and 39. Trials in Parts 3, 27 and 39 will be scheduled at least one month in advance. 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. 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. The jury shall be selected in accordance with procedures set forth in an appendix to these Rules. Adopted by: Justices Freedman, Gammerman and Moskowitz.
Rule 27. Trial Schedule, Part 27. In Part 27 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 4:00 p.m., Monday through Thursday and on Friday from 9:30 a.m. to 5:00 p.m. 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. Adopted by: Justice Gammerman.
Rule 28. Estimated Length of Trial. At least five days prior to trial, 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 29. Motions in Limine. At least five days prior to trial, the parties shall make all motions in limine that require rulings prior to trial, except for those not reasonably anticipated in advance. Unless otherwise ordered by the court in advance, the moving and opposition papers on such motions shall be no longer than 10 pages per issue and 5 pages per issue for the reply. These papers shall comply with the limitations as to print size and margins set forth in Rule 17 above.
Rule 30. 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. Each side shall then mark its exhibits to which no objection has been made, with plaintiff using numbers for its exhibits and defendant letters. Each side shall thereafter mark the contested exhibits, continuing the sequence previously used but also marking each exhibit with the letter "Q". At least five days prior to trial, each party shall submit to the court and other counsel a list of the uncontested and the contested exhibits and a copy of the latter. If the latter 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.
Rule 31. 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, 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 32. Pre-Trial Memoranda and Exhibit Book. Counsel shall submit pre-trial memoranda in all complex cases in which doing so will facilitate efficient presentation of proof. Such memoranda shall be submitted no later than five days prior to trial. A single memorandum no longer than 25 pages, with print size and margins as set forth in Rule 17 above, shall be submitted by each side. No memoranda in response shall be submitted. By the same deadline, in all but the most simple cases, counsel shall submit a book of trial exhibits for the court’s use.
Rule 32-a. Pre-Trial Memoranda and Exhibit Book, Part 56. The procedures set forth in Rule 32 shall be followed in Part 56, except that pre-trial memoranda are required in all cases. Adopted by: Justice Lowe.
Rule 33. Scheduling of Witnesses. At least five days prior to trial, each party shall identify in writing for the court and the other parties the witnesses it intends to call on its case in chief, the order in which they shall testify and the estimated length of their testimony.
Rule 34. 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 30, 31, and 33 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.
Rule 35. 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 29-31, and the possibility of settlement. At or before the conference, the court may require the parties to prepare a written stipulation of undisputed facts or, in an appropriate case, a pretrial order.
Rule 36. Procedures for Inquests, Part 53. A party pursuing an inquest in Part 53 shall do so in accordance with the procedures set forth in Appendix D. Adopted by: Justice Ramos.
SETTLEMENTS IN CLASS ACTION CASES
Rule 37. Class Action Settlements, Part 53. The settlement of class actions pending in Part 53 shall be governed by the guidelines set forth in Appendix C. Adopted by: Justice Ramos.
THE JUSTICES OF THE COMMERCIAL DIVISION
Justice Herman Cahn
Justice Helen E. Freedman
Justice Bernard J. Fried
Justice Ira Gammerman (JHO)
Justice Richard B. Lowe III
Justice Karla Moskowitz
Justice Charles E. Ramos
April 28, 2004
[Rules originally issued December 1998]
PARTS 3, 27 AND 39 -- STRUCK JURY SELECTION PROCEDURE
1. Questionnaires shall be completed by all potential jurors.
2. Copies of the completed questionnaires will be provided to all counsel, who shall have no more than 30 minutes to review them.
3. All potential jurors are to be examined. The examination will be initiated by plaintiff's counsel and then by counsel for defendants in the order in which the defendants are named in the caption.
4. Each side shall question the entire panel only once. Each side will be allotted one hour for that examination. A "side" means all plaintiffs as one group and all defendants and impleaded parties as the other.
5. After no more than two hours of examination, counsel are to report to the court for the purpose of exercising both challenges for cause and peremptory challenges. Those potential jurors not excused as a result of the exercise of a challenge for cause will be challenged by each counsel exercising a peremptory challenge in an alternating manner. For example, in a case involving only one plaintiff and one defendant, plaintiff's attorney will exercise one challenge, defendant's attorney will exercise one challenge, plaintiff's attorney will then exercise a second challenge, defendant's attorney will then exercise a second challenge, etc. In cases involving multiple parties, the challenges will be exercised by counsel in the order in which their clients’ names appear in the caption. 6. If after the exercise of all challenges for cause and peremptory challenges there are fewer than 8 to 10 jurors remaining, those jurors remaining shall be sworn and the procedures set forth in paragraphs one through five above will be repeated.
7. After the exercise of challenges, the remaining 8 to 10 jurors shall be sworn as the jury panel with alternates to be selected by lot immediately prior to deliberation.
RULES FOR NON-COMMERCIAL CASES -- PART 39
Unless otherwise specified below, the Rules of the Justices of the Commercial Division apply to all of Justice Freedman’s cases, whether or not they are Commercial Division cases. Please note that Justice Freedman does not allow adjournments of conferences in commercial cases (Commercial Division Rule 16), will allow adjournment of oral argument in commercial cases for exceptional cause only (Commercial Division Rule 24), and has adopted Commercial Division Rules 21 and 25 (a)(i) & (ii) (regarding temporary restraining orders and advance notice on motions).
(1) For all non-commercial cases: Parties shall not submit ex parte applications, orders to show cause, notes of issue, preliminary conference requests, proposed long form orders, judgments on motions, compromise orders, etc. in these cases to the Commercial Division Support Office. Parties should instead submit their papers to the appropriate offices for non-commercial cases (Rooms 158, 315, etc.)
(2) For N.Y.C. Asbestos Litigation, and New York State Breast Implant, NY State Diet Drug, NY State Latex Glove, and New York State Rezulin Litigation:
(a) These actions are governed by all case management orders promulgated with respect thereto. In the event of any conflict or inconsistency between provisions in the case management orders and the Rules of the Justices of the Commercial Division, the case management order provisions shall prevail.
(b) For these actions, the parties do not need to give advance notice to the Court before making motions.
(c) Oral argument is required for all motions in these actions. Argument is automatically scheduled for the second Thursday following the submission date in the Motion Support Office, in Part 39, Room 208, at 60 Centre Street at 2:00 PM.
(d) No stipulations to adjourn motions will be honored without the prior approval of Chambers.
(e) Counsel should submit courtesy copies to Chambers of (1) motion papers that are submitted after the Motion Support Office submission date and (2) responsive papers to Orders to Show Cause.
(3) For N.Y.C. Asbestos Litigation: Before the scheduled argument date for an asbestos litigation motion, counsel shall confer with each other to determine whether the motion is opposed and will be argued, or whether it will be withdrawn or granted without opposition, or whether the parties shall apply for an adjournment. At least one party to a motion must appear before the Court at 9:30 AM on the scheduled argument date to (i) inform the Court whether the motion will be argued that afternoon, or whether instead it will be withdrawn or granted without opposition or (2) apply for an adjournment on consent.
GUIDELINES FOR SETTLEMENT OF CLASS ACTION CASES
The following are general guidelines for the settlement of Class Actions pending before Justice Ramos. When circumstances warrant, exceptions will be made.
1. All notices to members of the proposed class shall be in plain English. A typical member of the class should be able to easily comprehend each notice. Class counsel must draft such notices consistent with their professional obligation to fully disclose to their clients the significance of the information provided.
2. The issue of class certification is not a matter for stipulation between the parties unless the settlement is without prejudice as provided below in Paragraph 3. Otherwise, a finding that certification of the class is appropriate will be made at an adversarial hearing.
3. Defendants shall not be released by members of the class unless the class member accepts the settlement benefit. The failure to opt out will not result in a release. Unless permitted by this Court, the terms of the settlement shall not require the class members to opt out or take other action to preserve an existing right.
4. Where applicable, the procedure to be followed by class members in applying for the settlement benefit shall be simple and shall not require the class member to provide information or documents not required in the first instance to purchase the product or service other than what is reasonably necessary, such as name, address and proof of purchase (if not otherwise determinable from the parties’ own records). When practicable, the benefit shall be forwarded to the class members in the manner of an account credit or a refund on a product return.
5. A summary of counsel's application for fees, which shall include the basis and justification for the calculation, shall accompany any notice of proposed settlement. This is required without regard to the source of the fee payment. No fee shall be approved unless it bears a reasonable relationship to the benefit actually accepted by the members of the class and is reasonable in light of the risk to counsel of no recovery. Fee calculations may not be based on the potential value of the settlement; rather, fee awards will be awarded in light of the benefits actually received by class members.
6. The Court may appoint independent counsel to represent the proposed class members on the question of class certification, fees to be awarded class counsel or any other issue where the Court is unable to determine the relative strengths of the parties' positions, or if the settlement raises questions about collusion or the ability of plaintiffs' counsel to represent the interests of the class.
7. The Court will not "preliminarily" approve any settlement prior to the hearing on fairness.
8. A member of the proposed class may object orally at the fairness hearing or in writing without the need to notify counsel or to file written objections prior to the hearing.
9. Notwithstanding Paragraph 1 above, a copy of these rules must be appended to each notice to class members.
SPECIAL RULES ON SUBMISSION OF INQUESTS
For review of inquests conducted by this Court, a party shall submit the following information or documents to the Court:
1. An affidavit from a person with knowledge of the facts setting forth how damages are computed.
2. Attorney's affirmation setting forth a brief recitation of the facts and the grounds for liability. The affirmation should also discuss the damages incurred by the party.
3. Exhibits should be submitted in support of all requests for damages. For example:
-- if the relief is attorney fees, the attorney's affirmation should attach the billing statements describing the activity, the identity and title of the person performing the activity, time, date, and billing rate.
-- if the relief is for lost profits, financial statements for comparative time periods should be provided.
4. Whenever counsel believes it would assist the Court, affidavits from experts (i.e., accountants, appraisers, etc.) should be submitted.
5. Proof of service must be filed indicating that all papers and exhibits submitted to the Court have been served on opposing parties.
6. A proposed finding of fact and a proposed order for this Court should be submitted, and, if possible, submitted on a computer diskette.
7. Any additional submissions that will be helpful to the Court should be provided.
* Papers in opposition should follow the same format as set forth above.
** For inquests that were not granted on default, do not submit evidence on causes of action that have been previously dismissed or on which no liability was found.
*** Failure to properly document damages will result in the rejection of the inquest.
[Appendix D added October 1, 2002
FORM OF PROPOSED ORDER FOR
PRO HAC VICE APPLICATIONS
At IAS Part_______of the Supreme Court of the State of New York, Commercial Division, County of New York, at the courthouse thereof, 60 Centre Street, New York, New York, on the_________day of___________, 200_____.
Index No._____________ / 200____
Order of Admission Pro Hac Vice
__________________________, Esq., having applied to this court for admission pro hac vice to represent [plaintiff/defendant]_______________________ in this action, and said applicant having submitted in support thereof a stipulation of all parties dated_____________________ , an affidavit of _______________________, Esq., a member of the Bar of the State of New York and attorney of record herein for _______________________, an affidavit of the applicant dated ______________________, and a Certificate in Good Standing from the jurisdiction in which the applicant was admitted to the practice of law, and the court having reviewed the foregoing submissions and due deliberation having been had, it is now therefore
ORDERED that the motion is granted on consent and __________________________, Esq. is permitted to appear and to participate in this action on behalf of ___________________________; and it is further
ORDERED that he/she shall at all times be associated herein with counsel who is a member in good standing of the Bar of the State of New York and is attorney of record for the party in question and all pleadings, briefs and other papers filed with the court shall be signed by the attorney of record, who shall be held responsible for such papers and for the conduct of this action; and it is further
ORDERED that, pursuant to Section 520.11 of the Rules of the Court of Appeals and Section 602.2 of the Rules of the Appellate Division, First Department, the attorney hereby admitted pro hac vice shall abide by the standards of professional conduct imposed upon members of the New York Bar, including the Rules of the Courts governing the conduct of attorneys and the Disciplinary Rules of the Code of Professional Responsibility; and it is further
ORDERED that he/she shall be subject to the jurisdiction of the courts of the State of New York with respect to any acts occurring during the course of his/her participation in this matter; and it is further
ORDERED that said counsel shall notify the court immediately of any matter or event in this or any other jurisdiction which affects his/her standing as a member of the Bar.
[Appendix E added effective February 9, 2004]