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Trials


Concerning: Filing of the Note of Issue / Changes to the Caption or Trial Status / Settlement Discussions /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 with the County Clerk and 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. Counsel should refer to the Part’s rules (posted on this website under “Justices - Local Rules”).


B. ORDERS AFFECTING THE CAPTION OR TRIAL STATUS

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. Counsel must bring them to the attention of the County Clerk and the relevant Clerk's Office, as will normally be provided for in the court’s order. See CPLR 8019 (c). 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 a hard-copy case or via NYSCEF in an e-filed case. In a hard-copy case, the General Clerk’s Office may be served by e-mail as provided in Section J (2) of the E-Filing Protocol on the “E-Filing” page on this website. To serve the County Clerk in a NYSCEF case, use E-Filing Forms EF-23 for an amendment of the caption and EF-22 for other situations. For service on the General Clerk’s Office in an e-filed case, serve via NYSCEF as explained in the E-Filing Protocol (Section J (2)).


C. SETTLEMENT CONFERENCES AND ASSIGNMENT OF CASES FOR JURY TRIAL

The following procedures will be implemented after the filing of the note of issue and a jury demand in General Assignment, City, Motor Vehicle, and Transit cases, and in Asbestos matters.

As explained here, cases (other than Asbestos matters) will generally be processed as follows after the filing of the note of issue and jury demand:

- - Transit cases will be referred to the Transit Authority Settlement Part for intensive settlement discussions
- - non-Transit cases will be sent to Early Settlement Conferences
- - cases that do not come to settlement in the Early Settlement Conference will be sent to the Judicial Mediation Part or Last Clear Chance Conference Part (City cases) for an intensive settlement effort led by a Justice
- - cases that are not settled in the Judicial Mediation Part, the Last Clear Chance Conference Part, or the Transit Authority Settlement Part will be sent to the Administrative Coordinating Part (Part 40 TR) for immediate jury selection and trial assignment

1) General Assignment and Motor Vehicle Cases

In the General Assignment inventory (which category excludes City, Transit, Commercial Division, matrimonial, Motor Vehicle, and medical malpractice cases), cases in which a note of issue and jury demand have been filed will be referred to an Early Settlement Conference Part (Part ESC 1)(Miles Vigilante, Esq.) in Room 422 at 60 Centre Street (646-386-3689).

After the filing of the note of issue and jury demand, Motor Vehicle cases will be referred to an Early Settlement Conference Part (Part ESC 2)(Samuel Wilkenfeld, Esq.) in Room 103 at 80 Centre Street (646-386-3683).

Counsel will be notified when a case is first scheduled for an Early Settlement Conference appearance through e-Track, the court system’s e-mail notification service. Counsel in all cases pending in New York County Supreme Court should subscribe to the e-Track service, which is free of charge. The e-Track address is: https://iapps.courts.state.ny.us/webcivil/etrackLogin

Messrs. Vigilante and Wilkenfeld will endeavor to settle these cases. Only counsel fully familiar with and authorized to settle shall appear at these conferences.

Cases that are not resolved in the Early Settlement Conference Parts will be referred to the Judicial Mediation Part (Part J-Med), where they will undergo an intensive settlement effort presided over by Justice Judith R. McMahon. Conferences in the Judicial Mediation Part will be conducted in Room 422 at 60 Centre Street (646-386-3722). Attorneys will be notified of the first appearance in a case in Part J-Med at the last Early Settlement Conference and/or through e-Track.

All counsel attending Judicial Mediation conferences must have familiarity with all aspects of the case. Further, counsel attending the conferences must either (i) have full authority to discuss settlement and enter into settlement agreements, or (ii) ensure that the client is present at the conference or is immediately available by telephone. A demand, if not already provided, must be provided to the defendant(s) in advance of this conference so as to facilitate discussion at the conference.

The discussions in a case in Part J-Med constitute the last opportunity prior to jury selection to settle the matter under judicial auspices. If a case is not settled in Part J-Med, the matter will be referred to the Administrative Coordinating Part, Part 40 TR, for jury selection and trial at an early date in the future. The attorneys will be given an opportunity to select a trial date that will be convenient for them and their witnesses. At the final appearance in Part J-Med, attorneys must bring information about their schedules and those of their witnesses, including expert witnesses, so as to allow for the selection of an appropriate appearance date in Part 40 TR. The date so fixed will be a firm one, as explained hereafter. Immediately after the last J-Med conference, counsel must notify all witnesses, including expert witnesses, of the trial date fixed and of the fact that the trial date is a firm one. These procedures will ensure that the court can place cases for trial expeditiously and efficiently and that counsel can prepare for trial in an efficient manner in reliance upon the schedule fixed.

2) Administrative Coordinating Part (Part 40 TR) - -
Jury Selection and Assignment for Trial

The functions of the Administrative Coordinating Part (Part 40 TR, Justice Judith R. McMahon, presiding) are to send cases out for jury selection and to refer them to an available Part for trial. These things will be done on the date of the scheduled appearance in Part 40 TR. As noted above, that 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, well before that date 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 TR appearance date will have been fixed a significant time in advance with the concurrence of all 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 emergency of comparable gravity or where a jury is out in another case, or where an affidavit/affirmation of actual engagement is submitted in compliance with Part 125 of the Rules of the Chief Administrator. Immediate notification of an intention to make a request for adjournment based on the foregoing shall be provided to all other counsel on the case. As explained above, counsel should address the scheduling needs of themselves and their witnesses, including expert witnesses, at the last appearance in Part J-Med or the Transit Authority Settlement Part, shall immediately thereafter notify all witnesses of the trial date and that it is a firm one, and should not seek an adjournment because of scheduling concerns on the trial date in Part 40 TR.

Counsel must be prepared on the date of the appearance in Part 40 TR to inform the Administrative Coordinating Judge of the anticipated length of the trial. No settlement discussions will be undertaken in Part 40 TR. Counsel who wish to discuss and achieve settlement of a trial-ready case must do so in an Early Settlement Conference Part, the Judicial Mediation Part, or the Transit Authority Settlement Part.

Part 40 TR is located in Room 422 at 60 Centre Street (646-386-3095). The calendars will be called promptly at 9:30 AM so that attorneys will be able to proceed to the Jury Room as quickly as possible on the morning of the appearance.

3) City Cases

After a note of issue and jury demand have been filed in a City case, the case will be referred to Early Settlement Conference Part 2 (Room 103 at 80 Centre Street). An effort will be made by Mr. Wilkenfeld to settle these cases.

City cases in which settlement is not achieved in the Early Settlement Part will be scheduled for a final settlement conference, the Last Clear Chance Conference. This conference will take place before Justice George J. Silver in the Last Clear Chance Conference Part (Part LCC) in Room 1227 at 111 Centre Street.

When a Last Clear Chance Conference is to be scheduled, Mr. Wilkenfeld in Early Settlement Conference Part 2 will discuss with counsel a date for the Conference that will be suitable for all counsel. Therefore, at the last Early Settlement Conference counsel must have their schedules with them and those of their witnesses, including expert witnesses, and must consult them when the date of the Last Clear Chance Conference is being fixed.

The Last Clear Chance Conference represents the final opportunity prior to jury selection to try to settle the case under judicial auspices with a representative from the Comptroller’s Office. Therefore, all counsel attending these conferences must have familiarity with all aspects of the case. Counsel attending these conferences in the Last Clear Chance Conference Part must either (i) have full authority to discuss settlement and enter into settlement agreements, or (ii) ensure that the client is present at the conference or is immediately available by telephone. A demand, if not already provided, must be provided to the defendant(s) in advance of this conference so as to facilitate discussion at the conference.

If the case is not settled at the Last Clear Chance Conference, no further settlement discussions will be held. The case will next appear on the calendar of the Administrative Coordinating Part (Part 40 TR City), and will be sent out by Justice McMahon for jury selection and trial. At this appearance in Part 40 TR City there will be no settlement discussions. Adjournments will not be permitted except under the very limited circumstances set forth in Section 2 above.

4) Transit Cases

After a note of issue is filed in a Transit case, the case will be referred and reassigned to the Transit Authority Settlement Part (Part 40 TASP) for settlement discussions conducted by Hon. Sherry Klein Heitler and/or Steven Helfont, Esq. and with a representative of the Transit Authority. These conferences will take place in Room 408 at 60 Centre Street, 646-386-3281. Counsel will be notified of the appearances in Part 40 TASP through e-Track.

All counsel attending these conferences must have familiarity with all aspects of the case. Counsel attending the conferences must either (i) have full authority to discuss settlement and enter into settlement agreements, or (ii) ensure that the client is present at the conference or is immediately available by telephone. A demand, if not already provided, must be provided to the defendant(s) in advance of this conference so as to facilitate discussion at the conference. Counsel must contact Ms. Khahaifa of the Transit Authority (718-694-3991) in advance of the conference to transmit the demand.

Discussions in Part 40 TASP shall provide the last opportunity prior to jury selection to settle a Transit case under judicial auspices. If a case is not settled in Part 40 TASP, the attorneys will be given an opportunity to select a convenient trial date in the near future. A firm date shall be fixed for appearance in the Administrative Coordinating Part, Part 40 TR, for immediate jury selection and referral to a Part for trial. At the final appearance in the Transit Authority Settlement Part, attorneys must bring information about their schedules and those of their witnesses, including expert witnesses, so as to allow for the selection of an appropriate selection and trial date in Part 40 TR. Counsel will be required to complete a form in which the appearance date will be fixed. The date so fixed will be a firm one. Immediately after the last conference, counsel must notify all witnesses, including expert witnesses, of the trial date fixed and of the fact that the trial date is a firm one that shall not be adjourned. These procedures will ensure that the court can place cases for trial expeditiously and efficiently and that counsel can prepare for trial in an efficient manner in reliance upon the trial date fixed.

5) Asbestos Cases

Asbestos cases constitute a unique inventory. These cases may be tried in groups and the issues may be tried in segments. The trials tend to be lengthy and complex. The asbestos inventory is assigned to Justice Manuel J. Mendez (Part 13). Justice Mendez has designated a group of Justices as Asbestos Trial Judges. They are Justices Lucy Billings, Barbara Jaffe, Gerald Lebovits, and Martin Shulman. Asbestos cases that are ready for trial will be assigned to an Asbestos Trial Judge through Part 13.

6) Notification in Trial-Ready Cases

With regard to appearances in the Early Settlement Parts, the Judicial Mediation Part, the Last Clear Chance Conference Part, the Administrative Coordinating Part, the Transit Authority Settlement Part, the Asbestos Part, and Asbestos Trial Parts, information can be obtained from 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 under “Court Resources” on this website. There is no charge to use Scroll.

In addition, as explained in Section 1 above, attorneys can receive, at no charge, prompt e-mail notification of dates fixed for settlement conferences and trial appearances therein, and all other appearance dates, as well as other developments in their cases, through e-Track. This service can also provide e-mail reminders of upcoming appearances to attorneys who request them.

Cases scheduled for settlement and trial appearances will also be listed on calendars in the New York Law Journal.

Counsel should note that the court will not send notice of the scheduling of a matter by mail. Counsel should consult Scroll, e-Track, or other method to follow scheduling for their cases.


D. TRIAL OF NON-JURY CASES

From time to time, the Administrative Judge may assign groups of non-jury cases in which a note of issue has been filed and that have not yet been scheduled for trial to a Blockbuster calendar before her or her designees for mediation. If the cases are not there resolved, they will be assigned for trial.


E. 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


F. 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 relevant Part. Attorneys who are sent to select must appear before Hon. Judith R. McMahon (Part 40TR) to await being called by the Jury Clerk when the Clerk can provide a jury panel. 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.

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.

Once selected, a jury will 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 pursuant to Rule 128.8 (b) of the Rules of the Chief Administrative Judge. 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 do not occur. Once the jury is selected, the Part assigned will proceed with the trial shortly thereafter.

G. SUBPOENAED RECORDS

The court operates a Subpoenaed Records Section (Room 145M), which receives, logs in, and maintains all subpoenaed records on trial-ready cases only. Parties may learn of the arrival of records by consulting the court’s Scroll application. After trial, original records are returned to the person who submitted them and copies are destroyed. If, however, attorneys intend to appeal, they must give notice of that fact since, absent that, copies of records are destroyed once the case is considered to have been disposed of. Where an appeal will be taken and notice thereof is given, all records will be retained pending the outcome of the appeal.

September 2018