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Trials


Concerning: Filing of the Note of Issue / Changes to the Caption or Trial Status / Assignment of Cases for Trial / Summary Jury Trials / Jury Selection / Subpoenaed Records

A. FILING OF NOTES OF ISSUE

A note of issue must of course be filed in order to place a case on the calendar for trial (CPLR 3402 (a)), including inquests or framed issue hearings before a Justice (but not for hearings conducted by a Referee). The fees for filing a note of issue and jury demand must be paid to the County Clerk through the New York State Courts Electronic Filing System in e-filed cases or, in hard-copy cases, in person in Room 160 at 60 Centre Street (fees are $ 30 (where the RJI has previously been paid for) and $ 65 respectively). The fees must be paid in cash, by Visa, Mastercard, or American Express credit or bank card, by an attorney's check made payable to the New York County Clerk, or in the form of a U.S. postal money order made payable to the New York County Clerk. An attorney's check will be accepted if it is from a New York attorney, provided that words such as "Attorney at Law" or "Esq." appear thereon, together with the attorney's address and phone number. Other checks must be certified.

After payment of the filing fee, a note of issue must be filed with the General Clerk's Office through NYSCEF in an e-filed case. When the filing is made with NYSCEF and the fee paid, the system will forward the document to the General Clerk’s Office. In a hard-copy case, the note of issue must be filed in duplicate, one with the County Clerk and the other with the General Clerk’s Office. The note of issue must be accompanied by a certificate of readiness, an affirmation of counsel reciting compliance with any preliminary conference order, a copy of such order, and, in a hard-copy case, an affidavit of service. Uniform Rule 202.21 (a). The certificate of readiness requires the filer to state that there has been compliance with any order issued pursuant to Uniform Rule 202.12. Rule 202.12 (I) provides that a matter to which that rule applies is not ready for trial unless there has been compliance with the provisions of that rule and any order issued pursuant to it.

If an attorney wishes to file a note of issue when a deadline for the filing thereof, such as one set forth in a preliminary conference order, has passed, the clerk's office will seek authorization from the assigned Justice to accept it; the court can authorize a late filing by endorsement on the note (a notation of "OK to file by " with a signature by the Justice will suffice); or the parties may seek an extension from the court by presenting a stipulation for "so ordering." In light of Differentiated Case Management deadlines, counsel should not assume that extensions, even by stipulation, can be had without good cause.


B. ORDERS AFFECTING THE CAPTION OR TRIAL STATUS

If a motion affecting the caption or the trial status of a case (e.g., a motion to correct a caption, to substitute a party, to amend, to strike a note of issue, to restore to the trial calendar, or to obtain a preference) is granted, the prevailing attorney must serve a copy of the court’s order on both the County Clerk and the General Clerk's Office in hard copy in a hard-copy case or via NYSCEF in an e-filed case. Because the court issues over 30,000 decisions on motions each year and many long form orders as well, neither the County Clerk nor the court's Clerk’s Offices can read all decisions/orders searching for judicial directives on these matters. Counsel must bring them to the attention of the County Clerk and the relevant Clerk's Office. See CPLR 8019 (c). Both the County Clerk and General Clerk's Office must be served with copies of orders regarding captions, etc. since each office maintains computer records on cases in our court, but these records are not connected to one another.


C. ASSIGNMENT OF CASES FOR TRIAL

1) General Assignment and Motor Vehicle Cases

In the General Assignment inventory (which category does not include City, Commercial Division, matrimonial, and medical malpractice cases), and in the Motor Vehicle inventory, upon the filing of the note of issue, cases will be referred to the court’s Neutral Evaluation Program (informally known as “Mediation”), where an effort will be made to settle them. The procedures used in this process and for assignment for trial in the event a settlement is not reached there are as follows.

When the note of issue is filed the case will remain in the name of the assigned IAS Justice. Referral to Mediation will occur as soon after the filing of the note of issue as is practical.

Recently, a number of post-note cases were referred to Mediation. These were cases in which a note of issue has been pending since prior to September 30, 2012. These cases were scheduled for a conference in Mediation to be conducted by a Neutral Evaluation Attorney (Miles Vigilante, Esq. or Samuel Wilkenfeld, Esq.). If the cases are not settled, they will be referred by the Attorney to the Administrative Coordinating Part (Part 40)(Hon. George J. Silver, Administrative Coordinating Judge) for assignment for trial and jury selection.

As to post-note General Assignment and Motor Vehicle cases in which the note of issue was filed after September 30, 2012, the cases shall be processed as follows. The cases will be scheduled initially for a conference in Mediation 1 or 2 called the Early Settlement Conference. Settlement of these cases will be explored with counsel at this stage. There shall be only a single appearance in a case referred to the Early Settlement Conference. Settlement at this point may be beneficial to counsel and the clients inasmuch as these cases otherwise shall be pending for some time before being reached for trial.

If the cases do not reach settlement in the Early Settlement Conference, they shall be reassigned to and placed on a General Waiting List, which is to be distinguished from the City Cases Waiting List discussed below. These cases will be placed on the General Waiting List in calendar number order and will advance on the List in that order.

After some time on the General Waiting List, the cases shall be referred to Mediation 1 or Mediation 2 for a full-scale settlement effort by a Neutral Evaluation Attorney and then, if settlement is not reached, set down for trial at an early date. This procedure shall take place as follows.

As cases reach the top of the General Waiting List, they shall be referred to Mediation 1 or Mediation 2. Only counsel fully familiar with the case and authorized to settle shall appear in Mediation. More than one Mediation session may be scheduled when in the opinion of the Neutral Evaluation Attorney doing so appears likely to be productive.

If a case in Mediation is not resolved therein after the Mediation process has reached what the Neutral Evaluation Attorney determines to be its conclusion, the Evaluation Attorney shall set the case down for jury selection on a date certain in the Administrative Coordinating Part (Part 40)(Justice Silver, ACJ). In fixing the jury selection date the Neutral Evaluation Attorney shall consult with counsel for all parties at the final Mediation session as to a date that shall be convenient for them. Since the jury selection date shall be a firm one, as explained below, counsel must bring their schedules with them and consult them at the final Mediation appearance. The Part 40 appearance date (the jury selection date) shall be set forth in a stipulation at the final Mediation appearance.

As has long been the fact, the function of Part 40 is to coordinate the placement of cases for trial with an available Justice, whether the Justice originally assigned to the matter or another, and to refer them to the Jury Room for jury selection. Counsel should be prepared on the date of the appearance in Part 40 to inform the Administrative Coordinating Judge of the anticipated length of the trial. The Part 40 appearance date (the jury selection date) shall be a firm date. Counsel must be ready to proceed to jury selection and trial on that date. Accordingly, attorneys should have already contacted their witnesses and prepared for trial. In view of the nature of the appearance and the fact that the Part 40 appearance date will have been fixed a significant time in advance with the concurrence of counsel, no adjournments of that date shall be permitted except in the case of a medical emergency affecting an attorney or his or her client or other reason of comparable gravity.

If circumstances of a particular case warrant it, the Administrative Coordinating Judge may discuss the possibility of settlement with counsel in a case in Part 40. Despite such possibility, counsel must be ready to proceed to jury selection on the date of the appearance in Part 40.

Attorneys can obtain information regarding the referral of a case from the General Waiting List to Mediation, appearance dates in Mediation, and all other appearance dates in any of their cases from the individual file for the case in question in the Supreme Court Records On-Line Library (Scroll), an application that is a joint project of the court and the County Clerk of New York County. Scroll can be located at the “Case Information” link on the website of this court (at www.nycourts.gov/supctmanh). There is no charge to use Scroll.

In addition, attorneys can receive prompt e-mail notification of the referral of a matter to Mediation 1 or Mediation 2, the date fixed for the appearances therein, and all other appearance dates, as well as other developments in their cases, through E-Track, the court system’s case tracking and notification service, which can be accessed at

https://iapps.courts.state.ny.us/webcivil/etrackLogin

There is no charge for the E-Track service.

Cases scheduled for Neutral Evaluation and for Part 40 will also be listed on calendars in the New York Law Journal. Please note that the court will not send notice of the scheduling of a matter in Mediation or in Part 40 by mail. Counsel should consult Scroll, E-Track, or other method to follow scheduling for their cases.

2) City Cases

When the note of issue is filed in a City case, the matter will be reassigned from a City Part to the City Case Waiting List. Promptly after the filing of the note of issue in such a case, a conference will be scheduled before a Neutral Evaluation Attorney (Samuel Wilkenfeld, Esq.) in Mediation 2. Notification of this conference can be obtained through E-Track, the appearance will be noted on a calendar in the Law Journal and the conference date will be recorded in Scroll. At this conference, an examination will be made of settlement prospects. Only counsel fully familiar with the case and authorized to settle it may appear at a Mediation conference. Numbers of cases come to settlement at this stage and counsel should therefore be prepared to discuss settlement in detail at this conference and should bring the file with them. The parties will also be called upon to review the state of discovery, which obviously should have been completed by then. The court will confirm that the parties have received all discovery that was required, including that the City has in its file documents necessary to thorough settlement discussions, such as the relevant map in a slip and fall case. To the extent that any items may not have been furnished by one side to the other, appropriate directives will be made. It is important that this be done so that settlement discussions can be pursued with all parties having in hand the information needed to evaluate the case and consider settlement and so that the case can proceed smoothly to trial in the event that settlement is not reached.

At the end of this conference in any City case in which the Neutral Evaluation Attorney concludes that further discussions in Mediation 2 are unlikely to be productive, the case will be scheduled for a Last Clear Chance Conference, which shall take place before the Administrative Coordinating Judge, Hon. George J. Silver (Part 40 City). After the initial conference in other City cases, those in which the Neutral Evaluation Attorney believes that further discussions in Mediation may be productive, the case will be adjourned in Mediation 2 to explore settlement further. If after such further discussions a settlement is not reached in Mediation 2, these cases will be scheduled for a Last Clear Chance Conference before Judge Silver (Part 40 City).

When a Last Clear Chance Conference is to be scheduled, the Neutral Evaluation Attorney will discuss with all counsel a date for the Conference that will be suitable for counsel. The date for the Last Clear Chance Conference will be a firm one and it will determine the jury selection date, as explained below, so counsel must have their schedules with them and consult them when the date of the Last Clear Chance Conference is being fixed in Mediation 2. The Last Clear Chance Conference date will be noted in a stipulation form. In addition to that form, notification of this conference can be obtained through E-Track, the appearance will be noted on a calendar in the Law Journal and the Conference date will be recorded in Scroll.

The Last Clear Chance Conference represents the final opportunity to try to settle the case prior to jury selection. Therefore, only counsel fully familiar with the case and authorized to settle it may appear at this Conference. Counsel may wish to have the client present as well. If the case is not settled at the Last Clear Chance Conference, it will appear on the calendar of the Administrative Coordinating Part (Part 40 City) exactly 14 days later, and will, without fail, at that time be sent out for jury selection. At this appearance in Part 40 City for jury selection there will be no further settlement discussions. Absent medical or other similar emergency affecting counsel or the client, adjournments of the Last Clear Chance Conference and the Part 40 City appearance 14 days later will not be permitted. The City has committed to having trial attorneys prepared and ready to proceed to jury selection on the jury selection date 14 days after the Last Clear Chance Conference and to achieve that outcome the deadlines and procedures set forth here must be adhered to by all counsel. Accordingly, counsel must be prepared to discuss settlement at the Last Clear Chance Conference and to proceed to jury selection and trial 14 days later if no settlement is reached at the Conference.


D. SUMMARY JURY TRIALS

For information on summary jury trials, see the following:

STATEMENT OF SUMMARY JURY TRIAL PROCEDURES

PRE-TRIAL ORDER IN GENERAL CASES

PRE-TRIAL ORDER IN MOTOR VEHICLE CASES

 

E. JURY SELECTION

The Court and the County Clerk seek to assure that jurors are selected quickly, but with full and fair opportunity for questioning by counsel; the time of prospective and selected jurors is conserved; and the experience of jury service is as meaningful as possible. See Uniform Rule 202.33.

Attorneys should obtain a jury slip from the Clerk of the Part. Attorneys who are sent to select must appear in the Norman Goodman Central Jury Room (Room 452) or a selection room at 71 Thomas Street (Room 100) or 111 Centre (Room 362 or 1121) promptly. Attorneys directed to appear at the start of a day should be present by 9:30 AM at the latest.

The County Clerk’s jury clerk will assign and reassign jury selection rooms according to the order in which cases appear for selection, the complexity of the cases and the number of attorneys and prospective jurors involved. If there should be a delay in reaching a case, counsel shall remain available until told otherwise to enable the Jury Clerk to report when a selection room becomes available.

The staff of the Jury Room provides jury questionnaires to counsel in advance of the voir dire process. In the past, JHOs frequently supervised jury selection. With the indefinite suspension of the Judicial Hearing Officers program in 2011, selection will be supervised by the Justice assigned to try the case.

The actual process of jury selection shall take place in accordance with Uniform Rule 202.33 and Appendix E of the Uniform Rules for the Trial Courts. For additional information, please consult the pamphlet Implementing New York's Civil Voir Dire Law and Rules (January 2009)(which is accessible at the following address: http://www.nycourts.gov/publications/pdfs/ImplementingVoirDire2009.pdf).

If a juror requests confidentiality or an attorney concludes or is advised by a juror that a response may poison the panel, the attorneys may withdraw the juror from the room or to a place outside the presence of the rest of the panel for further inquiry.

If jury selection continues into the following day, the Jury Clerk will determine the presence of all necessary persons in the selection room. The voir dire will continue at 9:30 AM sharp.

On very rare occasion, a jury may be placed "on TCI" (telephone call-in); that is, jurors will be required to telephone the County Clerk for information about when the case will commence. A jury can remain in this status for only five days. Rule of the Chief Administrative Judge 128.8 (b). If the case does not commence by that point, the jury must be disbanded. Rule 128.8 (a). Obviously, it is important for all concerned that disbandments not occur. Once the jury is selected, the Part assigned will proceed with the trial shortly thereafter. Stacking of juries is prohibited.


F. SUBPOENAED RECORDS

The court operates a Subpoenaed Records Section (Room 145M), which receives, logs in, and maintains all subpoenaed records. Parties may learn of the arrival of records by consulting the computer terminals in the courthouse. After trial, original records are returned to the person who submitted them and copies are destroyed. However, if the case is appealed, all records will be retained pending the outcome of the appeal; the Section should be notified of the intent to appeal.

October 2014