COMMERCIAL PART 12 – PRACTICES AND PROCEDURES
360 Adams Street
Brooklyn, New York 11201
Part Clerk/Courtroom Phone: (347) 401- 9127
Chambers Phone: (347) 296 -1458
Principal Law Clerk: Hajin Suh, Esq.
Assistant Law Clerk: Runyu (Rain) Hu, Esq.
Part Clerk: Talia Jacoby
Updated: September 28, 2023
Motions: Thursdays. Oral arguments are only upon request. There are no appearances, physical or virtual, on motions/order to show causes unless previously arranged with chambers. If any party requests oral argument, argument must be IN PERSON on the return date. The court will provide a specific time for parties to appear. Request for oral argument must be made by email to email@example.com at least three days before the motion’s return date.
Motion Adjournments: Requests must be made three days prior to the return date. Motions that are on for the first time may be adjourned via stipulation. Any further adjournments require court approval and are generally only granted upon good cause shown.
Pre-Trial Conferences: Conducted virtually as scheduled by the court. Generally, pre-trial conferences are scheduled two weeks prior to the trial date. The court expects compliance with Commercial Division Rules 27 and 28 which directs that parties, ten days prior to such conference: (1) make all motions in limine; and (2) agree upon the exhibits that will be offered into evidence without objection and pre-mark same.
Preliminary, Compliance, and Status Conferences: Conducted virtually as scheduled by the court.
Settlement Conferences: Conducted in-person as scheduled by the court. In certain circumstances, court can accommodate the parties virtually.
1. General Matters
- Commercial Division Rules: These practices are intended to implement the Commercial Division Rules with which counsel should be fully familiar (Uniform Rules for the New York State Trial Courts, 22 NYCRR § 202.70). These Rules are available at http://ww2.nycourts.gov/rules/trialcourts/202.shtml#70. Counsel should pay particular attention to Rule 1 concerning appearance by counsel with knowledge and authority. Rule 1 provides in part: “[c]ounsel . . . must be fully familiar with the case . . . and fully authorized to enter into agreements, both substantive and procedural, on behalf of their clients” (emphasis added).
- Timely Notice of Settlement of Cases or Issues. In order to conserve scarce court resources, counsel shall notify the court, as soon as practicable, by conference or email to chambers, of the settlement of active cases or pending motions.
2. Filing of Papers and Courtesy Copies
- E-Filings. All cases in the Commercial Division must be electronically filed through the New York State Courts E-Filing (NYSCEF) system. All parties to the case are required to keep their contact info on e-file current. Conferences and arguments, when necessary, will be scheduled by the court using the information in e-file.
- Exhibit Labeling. Each exhibit whether appended to an affidavit or otherwise should be e-filed separately with a descriptive title (Designation of a document as simply “Exhibit A” does not satisfy this requirement), and with motion sequence number.
3. Preliminary, Compliance and Status Conferences.
- Please consult Commercial Division Rules 1 and 8. To access the commercial division preliminary conference order template, please click here.
- All appearances are virtual unless otherwise specified by the court. Parties will receive an email with a Teams link and call-in information. Court permission is needed to adjourn any scheduled appearance. Requests shall be e-filed no later than two (2) business days in advance of the scheduled appearance. Requests submitted after the deadline will be denied absent a showing of good cause.
5. Communicating with the Court.
- Litigants may communicate with the court by email or telephone. Calls should be made to the Part 12 Clerk.
- Any party wishing to communicate with chambers by telephone shall conference the other parties on the line before placing the call to the court.
- E-Mail. The court may use e-mail to communicate with counsel regarding scheduling or to make certain inquiries. Counsel shall not use e-mail to make arguments.
- Please note: No attorney in chambers may communicate with a litigant ex parte, nor will he or she assist litigants in the practice of law, such as by advising as to how to interpret a particular rule or law.
6. Confidentiality Orders.
- Rule 11-g shall apply to requests for orders regarding the exchange of confidential information. The form of Stipulation and Order for the Production and Exchange of Confidential Information as set forth in Appendix B to the Rules of the Commercial Division and available at https://www.nycourts.gov/LegacyPDFS/RULES/trialcourts/202.70(g)%20-%20Rule%2011-g%20(attachment).pdf
- Any request for a confidentiality order shall be accompanied by a statement of counsel that the proposed order strictly follows the text of Appendix B. Parties seeking to deviate should follow Rule 11-g (b).
7. Document Sealing Procedures.
- Parties wishing to submit documents to the court which have been deemed confidential shall provide notice to the party who designated those documents confidential at least five (5) business days before filing the documents at issue. Within three (3) business days of such notification, the parties shall meet and confer. If, after discussion, counsel concludes that the proposed redactions meet the standards for sealing, counsel may proceed by way of stipulation that articulates facts sufficient to support a finding of good cause and stating the conclusion reached. The stipulation shall be submitted to be so ordered. If a party objects to a document being filed unsealed and unredacted, that party may move by Order to Show Cause giving proper reasons to seal and good cause therefore, pursuant to 22 NYCRR section 216.1.
- Please note that documents filed with the court will not be sealed merely on the ground that they are subject to a confidentiality agreement (see Mosallem v Berenson, 76 AD3d 345, 350 [1st Dept 2010]). Counsel should consult MBIA Insurance Corporation v Countrywide Home Loans, Inc. (No. 602825/08, 2013 WL 450030 12013 NY Misc LEXIS 367 [Sup Ct New York County, January 3, 2013] [“MBIA Sealing Order II”]), Mosallem (76 AD3d at 348); and Mancheski v Gabelli Group Capital Partners (39 AD3d 499, 602 [2d Dept 2007]) for instructions on limits imposed on sealing. Typically, the Court will be interested in redacting only discrete passages containing potentially confidential information as opposed to the wholesale sealing.
- The sealing motion should be accompanied by unredacted versions of the relevant documents as exhibits with the proposed redacted versions submitted as a subject of that exhibit (i.e. original documents provided as Exhibit “1”; document with proposed redactions provided as Exhibit “1a”). The exhibits are to be hand-delivered to the court so they can be reviewed in conjunction with the motion and are not to be e-filed. This is the only exception to the requirement that all submissions be e-filed.
- The motion to seal should be accompanied by a spreadsheet or chart jointly created by the parties indexing: a) the title of the documents to be sealed; b) the proponent of the request to seal; c) the reason the document should be sealed and/or redacted; and d) any objection to the request together with the basis therefor.
- Although the parties are free to exchange documents that are the subject of a sealing motion prior to a ruling on a motion, no motion papers should be filed referencing or annexing the documents which are the subject of the motion until the motion is decided. No exceptions.
- Please note that once a matter proceeds to trial, all sealing orders shall automatically be vacated unless the court expressly orders otherwise.
8. Discovery Related Matters.
- Discovery Disputes. Under Commercial Division Rules 14 and 14-a, counsel should attempt to resolve discovery disputes through good faith efforts. Pro forma exchange of objections without meaningful efforts to compromise do not satisfy these rules. If, after good faith efforts, the parties are unable to resolve or narrow the items in dispute, the aggrieved party may contact the court by letter (no more than three pages in length) or telephone (with all counsel participating) to arrange a Rule 14 conference.
- E-Discovery. Appendix A to Commercial Division Rules relating to disclosure of electronically stored information applies to both parties and non-parties (see Rules 11-c and Rule 8-b).
- Stays of Discovery. Unless otherwise directed by the court, discovery is not stayed upon the filing of a dispositive motion.
- Third-Party Disclosure. No court order is required before seeking document disclosure of a non-party. Any subpoena served on a non-party shall be simultaneously served on all parties and within five (5) days of compliance therewith, each party shall be given notice of receipt and of availability for inspection and copying, specifying the time and place thereof, CPLR 3120 (3). See also Guidelines at Appendix A to Commercial Division Rules.
9. Inquest Procedures.
- A submission in support of an inquest should include:
- An affidavit from a person with knowledge of the facts setting forth how damages are computed.
- Attorney’s affirmation setting forth a brief recitation of the facts and the grounds for liability. The affirmation should also discuss the damages incurred.
- Exhibits should be submitted in support of all requests for damages. For example: (i) if the requested relief is attorney’s 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; (ii) if the relief is for lost profits, financial statements for comparative time periods should be provided.
- Whatever counsel believes would assist the court, including affidavits from experts (e.g. accountants, appraisers, etc.).
- Proof of service shall be filed, indicating that all papers and exhibits submitted to the court were served on opposing parties.
- Proposed findings of fact and a proposed order should be e-filed.
- Papers in opposition should follow the format set forth above.
- For inquests not granted on default, submitted evidence shall be limited to causes of action as to which liability was found.
10. Motion Practice.
- Adjournments. Motions on the calendar for the first time may be adjourned by stipulation of the parties. Do not choose an adjourn date longer than 30 days without consent of court. All stipulations to adjourn shall be accompanied by a briefing schedule. Fully briefed papers are due one week prior to the return date. All other adjournments must be sought by application to the court.
- Motion Sequence Numbers shall appear on motion papers, including the notice of motion, memos of law, exhibits, affirmations, settled orders, and all correspondence pertaining to the motion.
- Discovery is not stayed during the pendency of any motion unless the court directs otherwise.
- Papers served on counsel pursuant to an Order to Show Cause shall be served in a manner that results in receipt by 5:00 PM on the date specified unless the court directs otherwise.
- Oral arguments are by request only.
11. Requests for Admission Pro Hac Vice.
- Requests for admission pro hac vice, including requests made by stipulation, shall be accompanied by an affirmation in support by a member of the Bar of the State of New York, an affirmation from the applicant, and a recent certificate of good standing for the applicant. The affirmation must also disclose whether the applicant has ever been, or is presently, subject to disciplinary proceedings. Click on the following PDF link for a copy of the order form: