Hon. Richard J. Montelione: Part Rules Part 99 and DJMP

360 Adams Street, Brooklyn, NY 11201
Chambers Room #462
(718) 500-4012
Courtroom #359
(347) 296-1642

Chambers Room #462
Phone Number: (718) 500-4012

Courtroom #359
Number: (347) 296-1642

Court Attorney: Matthew Grosbard, Esq., Email: mgrosbard@nycourts.gov

Part Clerk: Stephanie Santo, Email: slsanto@nycourts.gov


TEMPORARY RULES IN EFFECT UNTIL FURTHER NOTICE DUE TO THE COVID HEALTH CRISIS

(PLEASE READ THE PART RULES IN THEIR ENTIRETY PRIOR TO CONTACTING CHAMBERS)

The court recognizes the profound changes in the practice of law necessitated by the current health crisis and strives to accommodate counsel and all parties to the extent possible. It is expected that all counsel will be reasonable when there is a request for an adjournment, given the fact that this crisis has directly or indirectly affected the health and welfare of so many in our communities. Many lawyers are still working remotely or are only now beginning to re-occupy their offices. No reasonable request for an adjournment will be denied. At this time, PERSONAL APPEARANCES ARE SUSPENDED.

PART 99 MOTIONS

Until further notice, Part 99 motions will be deemed “submitted” on the return date, but the parties may seek oral argument or the court may schedule it even without a request for oral argument. All oral arguments will be conducted virtually through Microsoft Teams. If an oral argument is scheduled, fully briefed Part 99 motions will be heard during the week the motion is returnable.

If you believe it is crucial in your case to argue the motion, please place on the first page of the motion or on the first page of the opposition papers, under the index number, “REQUEST FOR ORAL ARGUMENT” or if your motion has already been filed, please make a request for oral argument via email to Mr. Grosbard (mgrosbard@nycourts.gov). The court will notify the parties if oral argument will be permitted. When oral argument is permitted, parties will be advised as to the date/time of oral argument. Please note that oral argument does not necessarily have to be held on the same date as the motion’s return date.

If the parties consent to an adjournment of a Part 99 motion, a stipulation of adjournment may be submitted for approval by uploading the stipulation to the court at least 24 hours prior to the return date by e-file and emailing a copy of the consent to the court (mgrosbard@nycourts.gov). The parties should agree to at least an eight-week adjournment. The court may reschedule the motion, if necessary, to another date. The court will permit up to two (2) adjournments for Part 99 motions, and then the motion will be marked “final.”

PART DJMP MOTIONS

Until further notice, unopposed Part DJMP motions will be deemed “submitted” on the return date. Fully briefed Part DJMP motions will be scheduled for oral argument to be conducted via Microsoft Teams. Unopposed Part DJMP motions may be administratively adjourned if there are missing papers, such as a non-military affidavit, affidavit of merit, etc.

If the parties consent to an adjournment of a Part DJMP motion, a stipulation of adjournment may be submitted for approval by uploading the stipulation to the court at least 24 hours prior to the return date by e-file and emailing a copy of the consent to the court (mgrosbard@nycourts.gov). The parties should agree to at least an eight-week adjournment. The court may reschedule the motion, if necessary, to another date. The court will permit up to three (3) adjournments for Part DJMP motions, and then the motion will be marked “final.”

The movant for default judgment is urged to check that proper service of the summons and complaint has been made so as to avoid delay. PLEASE KEEP IN MIND THAT EVEN IF THE COURT HAS HELD AN INQUEST IF UPON FINAL REVIEW BEFORE JUDGMENT IS ENTERED IT IS DETERMINED THAT THE AFFIDAVIT OF SERVICE IS DEFECTIVE THE COURT WILL NOT ENTER A FINAL JUDGMENT UNTIL THE DEFICIENCY IS RESOLVED.

For the convenience of counsel, and self-represented parties, the following is a checklist for obtaining a default judgment but is not exclusive:

Yes

No

N/A

CPLR 3215[f] REQUIREMENTS:

Did plaintiff submit proof of the filing and service of the summons and the complaint or summons and notice (CPLR 3215[f])?

□ 308   □ (1)   □ (2)   □ (3)   □ (4)   □ 310 (Partnership)   □ 310-a (limited partnership)   □ 311-a (limited liability co.), Corp.   □ NYS Sec. of State

Did plaintiff submit admissible proof of the facts constituting the claim by affidavit made by the party (CPLR 3215[f])?

Did plaintiff submit proof of the default by affidavit made by the party or by attorney affirmation (CPLR 3215[f])?

Did plaintiff submit proof of the amount due by affidavit made by the

party (CPLR 3215[f])?

 

 

 

NOTICE REQUIREMENTS:

Did those defendants who have appeared receive at least five days' notice of the time and place of the motion for a default judgment (CPLR 3215[g][l]?

If more than one year has elapsed since the default, have those

defendants who have not appeared receive at least five days' notice of the time and place of the motion for a default judgment (CPLR 3215[g][l)?

 

 

 

ADDITIONAL MAILING REQUIREMENTS - NATURAL

PERSON / CONTRACT ACTION

If the default judgment is being sought based upon the nonappearance of natural person in an action-based upon nonpayment of a contractual obligation, did the plaintiff submit affidavit that additional mailing requirements were complied with?

 

 

 

ADDITIONAL MAILING REQUIREMENTS - DOMESTIC CORP.

- SERVED PER BCL§ 306[b]

If a default judgment based upon non-appearance is sought against a domestic or authorized foreign corporation which has been served on the Secretary of State (BCL§ 306[b]), did the plaintiff submit an affidavit of additional service of the summons by first-class mail has been made upon the defendant corporation at its last known address at least twenty days before the request for entry of judgment (CPLR 3215[g][4][i])?

Did plaintiff submit an affidavit of non-military service?

 

Are the above answers accurate?

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SETTLEMENT DISCUSSIONS INVOLVING MOTIONS OR CASES

The Court is always amenable to a Microsoft Teams or telephone conference to settle a motion or a case. If interested, please reach out to opposing counsel/parties and then email Mr. Grosbard (mgrosbard@nycourts.gov) for further instructions.

RETURN DATES ON PART 99 MOTIONS

All Part 99 motions must be noticed, except for holidays, for the first or third Wednesday of the month at 10:30 A.M. A motion that is not noticed for these dates and times will be administratively rescheduled accordingly.

RETURN DATES ON PART DJMP MOTIONS

All Part DJMP motions must be noticed, except for holidays and otherwise noted, for a Tuesday at 10:30 A.M. A motion that is not noticed for these dates and times will be administratively rescheduled accordingly.

FORECLOSURES/AUCTIONS If you have a case involving a foreclosure, there are currently in effect Administrative Orders that stay such actions except in very limited circumstances. These actions will promptly continue to trial or be resolved post-trial or be resolved by motion once the stay is lifted.

BENCH TRIALS/JURY TRIALS/SUMMARY JURY TRIALS

Any pending jury trials assigned to Justice Montelione are currently adjourned sine die. Counselors should email Mr. Grosbard (mgrosbard@nycourts.govto reschedule the trial no later than 30 days after the courthouse is fully re-opened to the public. No party will be denied their right to a trial by jury, but all parties are expected to adhere to safety protocols. Please read all requirements upon entry to the courthouse which currently requires face masks. Upon entry to the courthouse, counsel, and parties represent to the court and others that in good faith they believe themselves to be in good health.

PART RULES (continued)

1. The local rules are incorporated by reference UNLESS THESE RULES DEVIATE FROM THE LOCAL RULES. All motion papers must comply with the Uniform Rules for Trial Courts and the local rules and if there is an inconsistency, these part rules are controlling. Please refer to: http://www.nycourts.gov/COURTS/2jd/KINGS/Civil/KingsCivilSupremeRules.shtml#Papers.

2. An Order to Show Cause (OSC) with a request for a temporary restraining order, including a request for a temporary stay of an action, will generally not be heard ex parte unless good cause is shown.

3. Opposition papers to an OSC shall be e-filed at least 24 hours before the motion is to be heard. Replies are not permitted unless the court grants an application based on good cause or otherwise directs a reply.

4. Working copies of Notices of Settlement, Judgment after Inquest, or correspondences are to be electronically filed. Any Settlement of an Order or Judgment on Notice filed with the court must contain a copy of the original order directing such settlement is there is a written order.

5. Please note that reference to electronically filed papers is not permitted. Where pleadings, prior applications, or prior decisions and orders are required to be annexed to the motion, reference to the electronically filed papers alone is insufficient. All necessary documents shall be annexed (see CPLR 2214 [c]).

6. When oral arguments are permissible, please do not make any oral arguments unless those oral arguments are within the motion papers. If you think the oral arguments which are not within your papers are determinative of any of the issues considered by the court, then you must request an adjournment to include such arguments on a future date.

7. Regarding applications by notice of motion, the CPLR does not provide for sur-reply papers and the court will not accept these papers unless good cause is shown and a request to file those papers is granted. If the reply contains facts not previously provided, the court will not consider such reply. If the original motion was brought by a non-lawyer and the movant retained counsel, an application may be made to supplement the papers or include additional facts in a reply and if the application is granted the court will also allow a sur-reply.

JURY TRIALS

1. If a jury trial is assigned to the justice, the plaintiff must provide the court with marked pleadings, a bill of particulars, and any deposition transcripts anticipated to be used at trial along with proof of service of the deposition pursuant to CPLR 3116(a).

2. All parties must also provide the court with any anticipated PJI closing charges and a proposed interrogatory verdict sheet. If any charges given to the court at the beginning of the trial need to be modified, please inform the court of such modifications before the charging conference. If any proposed charges need to be modified to reflect the specific contentions of the parties, please provide the court with the proposed language.

3. There will be a brief conference to discuss possible settlement, and if settlement discussions are unsuccessful, the matter will proceed to trial. Trials begin promptly at 9:30 A.M. sharp, continue up to the lunch hour (1 P.M.), resume at 2:15 P.M. sharp, continue through the end of the business day, and continues day-to-day, from liability to damages, unless specifically excepted, until the trial is completed.

4. A motion in limine must be made as early as possible and may be made either orally or by letter limited to two pages unless the court directs otherwise. If the trial is scheduled more than 30 days from the date of a conference, any motions in limine must be made at least 15 days before the trial date.

5. Trial exhibits. The court urges the parties to pre-mark the exhibits for identification and to stipulate to the admissibility of evidence where to do so will not compromise any of the rights of the parties.

6. If a trial is assigned to the Justice for scheduling a date certain, all counsel must be aware of the schedules of their respective witnesses. After a trial date is scheduled, a settlement date will be scheduled prior to trial and ALL PARTIES are required to attend the settlement conference. When applicable, counsel must either bring or have ready access to any insurance adjuster. Respective counsel is encouraged to provide the court with cases determining relevant damages.

7. No speaking objections. If you raise an objection during the course of the trial, please use one or two words to describe the grounds for the objection, i.e., “objection-relevance,” “objection-hearsay,” “objection-no foundation.” If you need to make an objection that cannot be stated in one or two words, ask for a sidebar and the court will make a record outside the presence of the jury regarding the grounds for the objection.

8. Please avoid instructing the jurors on the law during jury selection, opening statements, or closing statements.

9. Summary Jury Trials. You can download these rules at the court’s following website: https://www.nycourts.gov/COURTS/2jd/KINGS/Civil/summaryjurytrialrules.shtml.

BENCH TRIALS

1. The court encourages the parties to discuss settlement, but the court will not be involved in such discussions. Upon request, the court will attempt to provide a special master or court attorney to discuss settlement.

2. You may but are not required to provide the court with a trial memorandum in letter form at the beginning of the trial. There is no need or requirement for a post-trial memorandum unless specifically requested by the court.

INQUESTS

1. Adjournments may be requested up to three times (by uploading the request at least 24 hours before the scheduled inquest by e-file and email: mgrosbard@nycourts.gov). The third date will be marked “Final.” Any further requests for an adjournment will only be granted upon a showing of good cause. You may discontinue an inquest with prejudice by e-filing the notice and sending a hard copy to the DJMP courtroom.

2. At least two (2) business days prior to your inquest, if applicable, please provide the court with certified copies of hospital records or other medical records submitted as business records. The court will accept attorney certification of government records if made pursuant to CPLR 2105.

3. Where there are original records, the court may accept copies after comparing the originals to the copies and may return the originals to the party seeking admission of the copies into evidence.

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