| Section
125.01 Engagement of counsel.
(a) Engagement of counsel shall be a ground for adjournment
of an action or proceeding in accordance with this rule.
(b) Engagement of counsel shall mean actual engagement on
trial or in argument before any State or Federal trial or
appellate court, or in a proceeding conducted pursuant to
rule 3405 of the CPLR and the rules promulgated thereunder.
(c) Subject to the provisions of subdivision (f) of this
section, where an attorney has conflicting engagements in
the same court or different courts, the affected courts shall
determine in which matters adjournments shall be granted and
in which matters the parties shall proceed. In making such
decisions, they shall, to the extent lawful and practicable,
give priority to actions and proceedings in the order in which
matters are listed below:
(1) child protective proceedings;
(2) criminal proceedings or juvenile delinquency proceedings
wherein the defendant or respondent is incarcerated;
(3) proceedings based on acts which constitute felonies;
(4) proceedings based on acts which constitute misdemeanors;
(5) matrimonial actions and proceedings; and
(6) civil actions and proceedings, including proceedings
conducted pursuant to rule 3405 of the CPLR and the rules
promulgated thereunder. Where an attorney's conflicting engagements
include two or more engagements within any one of these categories
of actions and proceedings, as between those engagements the
affected courts shall give priority to those involving jury
trials.
(d) Subject to the provisions of subdivisions (c) and (f)
herein, where an attorney has conflicting engagements, such
attorney must proceed in whichever matter is entitled to
a statutory preference or, if there is none and none of his
or her engagements involves exceptional circumstances, in
the particular matter first scheduled for the date on which
the conflict arises. Matters involving exceptional circumstances
shall be given priority over all others, except those entitled
to statutory preference. A court may find exceptional circumstances
where: (1) there are four or more attorneys engaged for a
trial, hearing or appellate argument therein; (2) a party
or material witness will be available for a trial or hearing
therein only on the date on which the conflict arises or
on any subsequent date during the period such trial or hearing
reasonably can be expected to extend; (3) a party or material
witness thereto is afflicted with an illness which, because
of its nature, requires that the trial of the action or
proceeding be held on the date on which the conflict arises;
or (4) a trial therein must be conducted within statutory
time limits and, if trial of the matter is not held on the
date on which the conflict arises, there is a reasonable
probability that the time limit applicable thereto will
elapse.
(e)(1) Each engagement shall be proved by affidavit or
affirmation, filed with the court together with proof of
service on all parties, setting forth:
(i) the title of the action or proceeding in which counsel
is engaged;
(ii) its general nature;
(iii) the court and part in which it is scheduled or, if
it is a proceeding conducted pursuant to rule 3405 of the
CPLR, the court in which the underlying action was commenced;
(iv) the name of the judge or panel chairman who will preside
over it; and
(v) the date and time the engagement is to commence, or
did commence, and the date and time of its probable conclusion.
(2) In determining an application for adjournment on the
ground of engagement elsewhere, the court shall consider the
affidavit of engagement and may make such further inquiry
as it deems necessary, including:
(i) the dates on which each of the actions or proceedings
involved were scheduled for the date on which they conflict;
(ii) whether or not the actions or proceedings involved
were marked peremptorily for trial or were the subject of
some other special marking;
(iii) the number of times each of the actions or proceedings
involved was previously adjourned, and upon whose application;
(iv) if any of the attorneys representing a party to one
of the actions or proceedings involved is a member or associate
of a law firm or office employing more than one attorney,
the number of members or associates of his or her firm or
office also serving as cocounsel or otherwise involved in
such action or proceeding, and their respective engagements
elsewhere; and
(v) if applicable, the period of time each of the actions
or proceedings involved has been on a calendar from which
it has been called.
(f) Where a trial already has commenced, and an attorney
for one of the parties has an engagement elsewhere, there
shall be no adjournment of the ongoing trial except in the
sole discretion of the judge presiding thereat; provided that
the judge presiding shall grant a reasonable adjournment where
the engagement is in an appellate court.
(g) This subdivision shall apply where a date for trial
of action or proceeding is fixed at least two months in advance
thereof upon the consent of all attorneys or by the court.
In such event, the attorneys previously designated as trial
counsel must appear for trial on that date. If any of such
attorneys is actually engaged on trial elsewhere, he or she
must produce substitute trial counsel. If neither trial counsel
nor substitute trial counsel is ready to try the case on the
scheduled date, the court may impose any sanctions permitted
by law.
Historical Note
Sec. filed Jan. 9, 1986; amd. filed Oct. 31, 1994 eff. Oct.
19, 1994. Amended (c) |
