General Rules:
No telephone calls are to be made to chambers inquiring as to status of orders to show cause, orders, judgments or any other applications. All such inquiries are to be made to the matrimonial support office (room 140) in person.
ANY CALLS SHOULD BE DIRECTED TO THE CLERK OF PART 52 at (718) 298-1218. Phone calls to the Clerk of the Part will only be accepted from 9:30 a.m. until 1:00 p.m. and from 2:00 p.m. until 5:00 p.m.
NO CALLS SHOULD BE PLACED TO CHAMBERS UNLESS AT THE INSTRUCTION OF THE COURT.
The failure of one or both parties to comply with the following Part Rules will result in the appropriate sanctions permitted under applicable law and court rules.
The calendar for all matrimonial matters, including motions, preliminary conferences and trials, shall be called promptly at the times indicated below with a second call immediately following the first.
Unless otherwise directed by the Court, appearance of counsel and their clients is mandatory on all matrimonial matters including, but not limited to motion calendar calls, preliminary conferences. compliance conferences, pre-trial conferences and all other Court-ordered conferences.
Notices of substitution of counsel shall be filed with the Part clerk, in addition to any other filing that is required. A “substitution of counsel” to a pro se litigant is a withdrawal of counsel that may be accomplished only in accordance with CPLR §321.
Counsel who appear must be fully familiar with the action on which they appear and must be authorized to enter into both substantive and procedural agreements on behalf of their clients. Attorneys appearing “of counsel” to an attorney of record are held to the same standard.
The failure of any counsel or any party to appear for a scheduled conference may be treated by the Court as a default and shall be dealt with in a manner permitted by Section 202.27 of the Uniform Rules or, after considering the respective financial circumstances of the parties, by awarding reasonable attorney’s fees to the appearing party from a non-appearing party or counsel whose presence was not excused by the Court.
Adjournments
ABSOLUTELY NO ADJOURNMENTS WILL BE GRANTED OVER THE TELEPHONE.
Consent adjournments may only be based upon submission of a written stipulation presented to the Court at least one day prior to the calendar call via fax to 718-298-1159, and must be approved by the Court. Such consent will be granted only when the moving attorney can assure the Court that no prejudice will be created to the client and when a legal reason is included in the stipulation. All adjourned dates shall be determined at the convenience of the Court.
All other applications for adjournments of motions or conferences will be entertained only at the call of the calendar.
Counsel must notify their adversary of any intention to seek an adjournment, and, if possible, to obtain consent of all parties.
Preliminary Conference
Unless otherwise ordered by the Court, Preliminary Conferences shall be held on dates convenient to the Court at 9:30 a.m. Counsel and their clients must appear at the preliminary conference. Failure to appear may result in costs or sanctions being imposed against the defaulting party.
Pursuant to Section 202.16[1][f] of the Uniform Rules for the Trial Courts, each party is required to submit to the Court, no later than 10 days prior to the conference, a properly certified net worth statement, a copy of the retainer agreement, and the following:
- statements of net worth;
- all paycheck stubs for the current calendar year and the last paycheck stub for the immediately preceding calendar year;
- all filed state and federal income tax returns for the previous three years including both personal returns and returns filed on behalf of any partnership or closely held corporation of which the party is a partner or shareholder;
- all W-2 wage and tax statements, 1099 forms, and K-1 forms for any year in the past three years in which the party did not file state and federal income tax returns;
- all statements of accounts received during the past three years from each financial institution in which the party has maintained an account in which cash or securities are held;
- the statements immediately preceding and following the date of commencement of the matrimonial action pertaining to: (A) any policy of life insurance having a cash or dividend surrender value; and (B) any deferred compensation plan of any type or nature in which the party has an interest including, but not limited to, Individual Retirement Accounts, pensions, profit-sharing plans, Keogh plans, 401K plans and other retirement plans.
Absent submission of a fully completed net worth statement by the moving party, financial relief will be denied without prejudice.
Before the call of the preliminary conference calendar, counsel and/or pro-se litigants will begin completing the preliminary conference order. All parties attending preliminary conferences, at the discretion of the Court, may be directed to meet with the Court’s law secretary prior to their appearance before the Court.
In every case, preliminary conferences must be conducted within 45 days after assignment of the action. Absolutely no requests for adjournments of preliminary conferences beyond the 45 day period will be entertained without filing of an affirmation of “no necessity” pursuant to 22 NYCRR Part 202.
Compliance Conference:
Compliance calendars shall be held on dates convenient to the Court promptly at 9:30 a.m. Counsel attending the conference must be fully familiar with and authorized to settle, stipulate or dispose of such actions. Counsel and their clients must appear at the compliance conference. Failure to appear may result in costs or sanctions being imposed against the defaulting, party. Before the call of the compliance conference calendar, counsel and/or pro-se litigants will begin completing the compliance conference order.
Motions:
The Part 52 motion calendar is now available on Monday through Friday. However, the bar is again reminded that motions filed on pending matters absent exigent circumstances will be calendared for the case’s next adjourned date. Unless otherwise ordered by the Court; counsel and their clients must appear on all motion calender calls.
Only one adjournment of any motion will be permitted by the Court, absent exceptional circumstances. Any subsequent adjournment requires a personal appearance by the attorney to explain the exceptional circumstances. The first adjournment will be permitted to be on written stipulation signed by all parties. All stipulations must contain the signature of the attorney consenting to the adjournment. A form, which contains only the name of the firm on a stipulation will not be accepted. All adjourned dates shall be determined at the convenience of the Court.
All motions, unless marked submitted by the Court, must be initially conferenced with the Court’s law secretary prior to argument or submission to the Court.
Cross-motions seeking no relief other than the denial of the relief requested in the motion will not be recognized as motions with respect to which a reply may be submitted.
Reply papers shall not set forth new factual claims, legal arguments or requests for relief that were not within the scope of the papers that initiated the motion or the opposition papers. Unless the Court grants leave in advance, sur-replies and other post-reply papers will not be considered.
Motions may be withdrawn in writing or on the record in open court. Any motion that is pending upon the settlement of the case will be deemed to be withdrawn, unless explicit provision is made for its preservation.
Where appearances of the parties and counsel are required and an oral decision is rendered from the bench, the parties shall either submit a proposed order or purchase a transcript of the decision, the cost of which will be divided equally between the parties unless the Court directs otherwise, which, after having been signed and “so ordered” by the Court shall serve as the written order for appellate purposes. All proposed orders, including transcripts to be “so ordered” must be noticed for settlement. In accordance with Section 202.48( c ) of the Uniform Rules, any proposed counter-order must be served upon counsel not less than two days (plus five days for service by mail) prior to the settlement date.
All exhibits must be clearly tabbed; references to specific decretal paragraphs of judgments or paragraphs or pages of stipulations must be specifically tabbed and highlighted by the movant. Motions not consistent with this rule will be rejected and returned to counsel.
No motion regarding discovery may be made without the prior approval of the Court. Pursuant to Section 202.27 of the Uniform Rules, counsel must consult with each other in a good faith effort to resolve any dispute regarding discovery or compliance with discovery deadlines before requesting that issue be resolved by the Court. In the event that counsel are unable to resolve such dispute in this fashion, the party seeking relief from the demand or deadline or to compel compliance shall immediately advise the Court of the dispute by faxing a letter not exceeding two pages in length. A copy of the letter shall be faxed to opposing counsel contemporaneously with the fax to the Court. Any response by letter, also not exceeding two pages in length, shall be made by fax, with a copy to opposing counsel, within 48 hours. Upon reviewing the submissions, the Court will schedule a telephone conference, schedule a Court conference, or grant permission to make a written motion and set a briefing schedule. Any such request shall be made within a reasonable time after the cause for the dispute arose. The failure to do so may result in the objection being deemed waived or the request being deemed abandoned and discovery being deemed complete as of the date on which discovery is required to be complete, as may be appropriate.
Any application for post-judgment relief must be by order to show cause. The proposed order to show cause should provide for service on the opposing party in the manner required for the commencement of a special proceeding, and shall not provide for service on the opposing party’s prior attorney unless the supporting papers establish that such attorney has authority to accept such service. Any post-judgment motion involving custody or visitation shall provide for the reappointment of and service upon previously appointed law guardian. Such reappointment will be in the discretion of the Court given the relevant circumstances and the respective financial conditions of the parties.
Submission of Papers
Opposing papers, cross-motions, reply papers, and the like, may be submitted at the call of the calendar in the courtroom. The Court will not consider papers sent to chambers or the Part after submission. Failure of the movant or their duly authorized attorney to appear on any motions will result in the motion being dismissed. A party in opposition to any of the aforementioned types of motions who fails to appear will risk having the motion summarily granted. If a motion has been brought by order to show cause, the movant must submit the affidavits of service on the return date. To minimize litigation costs and court appearances, all motions that are filed subsequent to a previously calendered court date for that case, except under exigent circumstances, will be calendered for the previously agreed upon adjourned date.
NO EXCEPTIONS SHALL BE MADE TO THIS RULE.
The provisions of 22 NYCRR 202.16(k) regarding papers on pendente lite motions will be enforced.
Affirmation of Need
On all motions, including post-judgment, with the exception of those for pendente lite relief, those denominated as emergency matters by the Court, or those covered under the rules for discovery motions, counsel must provide the Court with an Affirmation of Need upon filing of any written motions. Such affirmation should indicate why resort to written motion is necessary to obtain the requested relief, the attempts made to settle the matter without resort to written motion and, if applicable, the necessity to calender a motion on an active case before the next adjourned date. Failure to submit such affirmation will result in the accompanying application being dismissed without prejudice.
Trials:
These rules apply to all trials before the Court as well as those before a judicial hearing officer or referee where an order of reference has been made by this Court.
(A) Trial Dates: Trial dates established by the Court are to be considered firm, subject only to minor adjustments based upon the Court’s availability. Counsel should be prepared to commence the trial at the scheduled time on the scheduled date. Counsel should check with the Part clerk after 2:00 p.m. on the day prior to the scheduled trial date to verify that the Court will be available to commence the trial as scheduled.
Requests for adjournment of a trial date shall be made to the Part clerk in Part 52. Adjournments of trial dates will not be granted except upon a showing of unusual and unanticipated circumstances. As required by Section 202.32 of the Uniform Rules, adjournments requested by reason of the engagement of counsel must be accompanied by the affidavit required by Part 125 of the Rules of the Chief Administrator. Anticipation that the matter will settle is not considered a legitimate basis for adjournment. No adjournment will be granted within the three days prior to the scheduled trial date except upon the most exigent circumstances. Failure to be ready to proceed to trial will result in the case being dismissed, sanctions being imposed or both.
Where the matter has been set for trial for more than sixty (60) days in advance, substitute counsel is required where the attorney of record is actually engaged in an unrelated matter.
(B) Trial Rules: Not later than five days prior to the scheduled trial date, each counsel shall provide to the other and submit to the court:
- marked pleadings in accordance with CPLR Rule 4012;
- a statement, joint if possible, of the relevant facts that are not in dispute;
- a list of witnesses whom the party expects to call at trial, stating the address of each witness and the general subject matter as to which each identified witness is expected to testify;
- a list of all exhibits for each party indicating whether such exhibits are stipulated to be in evidence or marked for identification. As to those exhibits marked for identification, the Court will address their admissibility In limine or during the trial, as may be appropriate;
- copies of the exhibits intended to be offered by counsel. At least one day prior to trial, said exhibits are to be pre-marked by the court reporter, with the plaintiff’s exhibits numbered sequentially and the defendant’s exhibits lettered sequentially;
- an updated net worth statement and statement of proposed disposition submitted at the settlement conference;
- a list of all expert witnesses with copies of their reports.
- any other information that the Court has determined to be appropriate in the action.
The Court may, in its discretion, relieve counsel from all or part of these requirements upon a showing that the issues to be tried are sufficiently narrow that the required documents are not necessary or that the interests of justice otherwise require such relief. Such a request will be entertained only at the settlement conference.
Not later than one day prior to the scheduled trial date, each counsel shall provide to the other a statement setting forth any objection to the exhibits identified in the list provided by opposing counsel and the specific basis thereof. Any exhibit as to which no objection is identified shall be admitted into evidence on consent. The failure to provide such statement of objections on a timely basis may be deemed to be consent to the admission of all of the exhibits included in the list submitted by the opposing party.
On the day of trial, both sides shall have available at least four (4) copies of all exhibits which are expected to be introduced into evidence.
On the day of trial, both sides shall have available at least four (4) copies of all deposition transcripts which are expected to be read into the record or utilized on cross examination at the trial.
Counsel are urged to stipulate that any issue relating to an award of counsel and expert fees be resolved by the Court upon the submission of affirmations and other appropriate documentation from counsel.
The Court expects counsel to stipulate to as many facts as possible on matters that are not and should not be in dispute. If it appears during the course of the trial that no bonafide attempt was undertaken to secure such stipulation, the Court will likely recess and delay the trial until there is compliance.
Settlement Conferences:
Note of Issue must be filed prior to the date for the settlement conference. Failure to file Note of Issue may result in the case being dismissed pursuant to CPLR §3216.
With the exception of complex matrimonial actions, no later than six (6) months from the date of the preliminary conference, all cases will be scheduled for final settlement conference. At this conference, all parties must be present and all attorneys participating in said conference must be fully familiar with and authorized to settle such action. The purposes of the settlement conference are to identify the relevant facts that are not in dispute, the relevant facts that are in dispute, and the issues to be determined at trial, to develop a joint statement of relevant facts that are not in dispute, and, if possible, to settle the case. The parties and their counsel should appear at the conference prepared to:
- stipulate to the facts that are not in dispute;
- identify each issue (custody, child support, maintenance, equitable distribution) to be raised at trial;
- identify all items of property that are claimed to be separate and all items of property that are claimed to be marital;
- specify the claimed value of each item of property, marital and separate; and
- discuss the proposed disposition of all or some of the issues that have been identified.
Not less than ten days prior to the settlement conference each party shall serve upon the other an updated net worth statement and an annotated statement of proposed disposition in which all of the criteria listed in the statute are provided and counsel’s position stated as to each such criteria for both equitable distribution and maintenance issues as required by Section 202.16(h) of the Uniform Rules. In the event that the Matrimonial action remains unresolved following the conclusion of the pre-trial conference, the matter may, in the Court’s discretion, be adjourned for an additional settlement conference if it appears that the parties are near agreement and setting a firm trial date would create a financial burden upon the parties. Otherwise, the matter will be set for a firm trial date before this Court, a judicial hearing officer, or referee.
Any action, proceeding or issue within an action or proceeding, may be referred to a judicial hearing officer or referee to hear and report or, with the consent of the parties, to hear and determine. In those cases that are so referred, the judicial hearing officer or referee shall perform, within the scope of the order of reference, all functions of the IAS judge under these rules.
Counsel who appear at the settlement conference and are not fully familiar with the facts and or are not authorized to settle shall constitute a non-appearance and subject the party to sanctions under NYCRR 202.27.
Appointment of Neutral Expert Witnesses:
On its own initiative or on consent of the parties, the Court may appoint a neutral expert witness. The Court in its own discretion shall make a direction as to which party or parties shall advance the expert witness’ fee for production of the report and for testifying, subject to reallocation by the Court upon application of either party.
- Where the parties stipulate to the appointment of a neutral expert, they may elect to be bound by the expert’s opinion.
- Where the parties consent to the appointment of a neutral expert but have not elected to be bound by the opinion of the neutral expert, the stipulation must provide that the qualifications of the expert will not thereafter be challenged.
- In the discretion of the Court, the expert’s written report may be used to substitute for direct testimony at the trial.
- The expert reports shall be submitted under oath by the expert who shall be present and available for cross-examination (22 NYCRR 202.16(g)).
Dispositions:
(A) Settlement: A stipulation of settlement may be placed on the record and “so ordered” by the Court on any date that the case appears on the calendar and the parties are present. If an action is settled out of court, counsel shall immediately inform the Part clerk. Upon placing a stipulation on the record in open court or receiving written confirmation that a stipulation of settlement has been executed by all parties, the action will be marked “settled” and placed on the judgment submission calendar.
(B) Judgments: Judgment documents must be submitted within sixty (60) days of the date the action was marked settled or a decision was rendered, unless extended by the Court for good cause shown. The documents will be prepared by the counsel for the plaintiff unless the parties agree in Court or the Court directs otherwise. Judgment documents shall be in accordance with the requirements of Section 202.50 of the Uniform Rules and Appendix B thereto.
Any action in which the judgment documents are not timely submitted will be deemed abandoned pursuant to Section 202.48(b) of the Uniform Rules and may be the subject of a conditional order of dismissal establishing a date on which the action will be dismissed as abandoned unless closing papers are received.
Proposed judgment documents that are rejected for non-compliance with Section 202.50 of the Uniform Rules or any other deficiency must be resubmitted to the Court within thirty (30) days of notice of the rejection. If corrected documents are not submitted by that date, the action will be treated as if no documents had been submitted.
Miscellaneous:
Parties with unemancipated children should be aware that the Court may assign the parties to consult with Andrew Weinstein, MSW, the Court's Family Counseling and Case Analyst (Tel. #:718-298-1224).
Applications to consolidate existing Family Court matters must contain a copy of the Family Court petition and any orders. Application for ex parte orders of protection require the appearance of the client. Ex parte orders of protection are heard immediately. Counsel are reminded to always bring their clients to Court unless previously excused.
Attorneys who have appeared in the matter are to make all appearances until they are relieved by the Court or a Consent to Change Attorneys has been filed with Part 52 and the Clerk of the Court.
The Court functions through the aid and assistance of the courtroom and Chambers staff. They are expected to treat attorneys, litigants and others in a dignified and civil manner, as well they are to be treated in a civil and professional manner.
Counsel and the Law Guardian are reminded that the Law Guardian acts in the role of counsel for the child(ren). As such, the Law Guardian is bound by the same ethical and procedural rules as counsel for the parties. Ex parte communications between the Law Guardian and the Court will not be permitted. |
