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Civil Term - Part Rules, Part 33, Courtroom 122

Justice Leonard Livote
88-11 Sutphin Blvd.
Jamaica, NY 111435
Chambers Ph: (718) 298-1615
Courtroom Ph: (718) 298-1043
Fax: 718-298-1158
Law Secretary: Kevin Morrissey
Secretary: Sharon Davidson
Court Clerk: Robert Perez

Preliminary Conference | Compliance Conference | Settlements and Discontinuaces | Trials | Settlements and Discontinuances | Infant's Compromise Orders | Uncontested Matrimonials



All such inquiries must be made to Motion Support (718-298-1009) or to the Ex Parte Office (718-298-1018), or to the Clerk of the Part (718-298-1043 ).



The words “COMMERCIAL DIVISION” shall be clearly and conspicuously marked on the Notice of Motion or Order to Show Cause by the moving party for the appropriate cases.

*****Appearances on all motions are mandatory on the submission date of motion as each motion may be conferenced.


PART 33 Motions: As of April 20, 2018

1. Motions shall be heard on Tuesdays at 9:30 a.m. There will be two calls of the motion calendar. The second call of the calendar will be held at 10:30 a.m.

2. The moving papers on non E filed cases shall be filed in the Motion Support Office at least five business days prior to the scheduled return date in order to be placed on the Part 33 commercial division motion calendar for the day noticed. Working copies of E-filed motions are to be delivered to the courtroom on the first return date of motion at the calendar call. No motion relating to disclosure will be accepted without an affirmation of good faith as required by 22 NYCRR §202.7.

3. Answering papers, including cross-motions, affirmations in opposition and reply affirmations, will be accepted only on the return date in the Part. THE COURT WILL NOT CONSIDER PAPERS SENT TO CHAMBERS OR TO THE PART AFTER SUBMISSION OF THE MOTION, NOR CROSS-MOTIONS THAT DO NOT HAVE PROOF OF PAYMENT OF THE APPROPRIATE FEE (CPLR §8020(a)).

4. Appearance of counsel and pro se litigants is MANDATORY on all disclosure motions (i.e. Motions to Vacate and Strike a Note of Issue, Motions to Strike Pleadings, Motions to Preclude). The motions will be heard for all purposes in the Part on the return date. On that date, the motion will be conferenced by the Justice or his Law Clerk with the expectation that the issues will be resolved by stipulation. Papers will not be accepted from calendar service inasmuch as a personal appearance by counsel and pro se litigants is required.

5. Appearance of counsel and pro se litigants is also MANDATORY on all Orders To Show Cause, and motions which seek to continue or vacate a temporary restraining order or to extend the time to file a note of issue. Again, papers will not be accepted from calendar service in as much as a personal appearance by counsel and pro se litigants is required.

6. Applications for adjournments on consent, or otherwise, will be entertained only at the call of the calendar, and will not be entertained by mail, e-mail, fax or by telephone. Applications for an adjournment will be granted as a matter of right for the first time on. Counsel must make every effort to notify their adversaries of their intention to seek an adjournment.

7. The Court further directs that any attorney appearing on a case for any purpose MUST be familiar with the case, ready and authorized to resolve any and all issues.

Adjournments of first time on substantive ( i.e. non discovery ) motions will be allowed upon written stipulation of all parties which must be presented at the calendar call. No stipulations will be accepted by fax, mail or e-mail.



All motion papers submitted shall be in compliance with 22 NYCRR §202.5, concerning papers filed with the court. In addition to the requirements of 22 NYCRR §202.5, all pages are to be numbered and all paragraphs are to be numbered. All exhibits are to be proceeded by a numbered exhibit tab which protrudes from the stack of papers. All submissions are to be securely fastened so as to prevent the papers from separating from each other and becoming lost. FAILURE TO COMPLY WITH THE REQUIREMENTS OF THIS SECTION MAY RESULT IN REJECTION OR DENIAL OF THE OFFENDING SUBMISSION.
Any party annexing a deposition transcript in excess of one hundred (100) pages as an exhibit to a motion, shall submit such transcript on a disc, in lieu of paper, with the motion.

Any party who files a motion and/or opposition thereto pursuant to the NYS Courts Electronic Filing (“E-filing”) shall provide this Court with working copies of the documents filed electronically, which shall be submitted to the Clerk of this part on the first noticed return date of the motion. If working copies are not submitted on the first return date of the motion the motion may be marked off without prejudice. Each working copy shall include, firmly affixed thereto, a copy of the Confirmation Notice received from the NYSCEF site upon the electronic filing of such document (22 NYCRR §202.5-b(d)(3)(ii)).

If the Court directs that an order be settled or submitted on a motion in an E-filed case, the proposed order and any proposed counter-order shall be filed with the court on-line with proof of service. Working copies of all proposed orders MUST be submitted to the Motion Support Office before an order can be reviewed by the Court. As appropriate, the Clerk may make changes on the proposed order/counter-order by hand.


Preliminary Conference

A preliminary conference shall be scheduled (1) automatically by the court within 45 days after filing a request for Judicial Intervention, pursuant to 22 NYCRR 202.12(b), or (2) upon filing a written Request for a Preliminary Conference with the Clerk's Office (Room 140) in compliance with 22 NYCRR 202.12(a) or an appropriate notice is filed in malpractice or certiorari cases pursuant to 22 NYCRR 202.56 and 202.60.

All Preliminary Conferences will be held on TUESDAYS at 9:30 a.m. at the Preliminary Conference Part, Room 314, at the Jamaica Courthouse located at 88-11 Sutphin Boulevard, and they are presided over by the court-appointed referee, unless otherwise directed by the court. Failure to appear at the scheduled preliminary conference may result in discovery being ordered ex-parte or any other appropriate sanction including preclusion or dismissal ordered. Any inquiry pertaining to a preliminary conference shall be made to the Preliminary Conference Part at (718) 298-1046, NOT CHAMBERS.

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Compliance Conference

Compliance Conferences shall be held on the date scheduled in the Preliminary Conference Stipulation and Order. Compliance Conferences shall be held before Justice Ritholtz, in Room 313 at the Jamaica Courthouse, located at 88-11 Sutphin Boulevard, Jamaica, NY 11435. Any inquiry pertaining to a Compliance Conference shall be made to the Compliance Conference Part at (718) 298-1093, NOT Part 33 CHAMBERS.

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Settlements and Discontinuances

If an action is settled, discontinued or otherwise disposed of, counsel shall immediately inform the Court by submission of a letter directed to the Clerk of Part 33. All Stipulations of Discontinuance must be accompanied by proof of payment for the appropriate fee. CPLR §8020(d)(1).

Infant's Compromise Orders
Before submission of an Infant's Compromise Order, counsel shall obtain from the Clerk of Part 33 an Infant's Compromise checklist to ensure the submission of all necessary information and documentation. Infant's Compromise Hearings will be scheduled by the Court and the plaintiff will be informed of the Hearing date. Proof of payment of any appropriate fee is required.

There must be current, admissible medical proof accompanying the petition.

Uncontested Matrimonials

Any corrections to matrimonial papers that were directed by Part 33, either by a Notice of Defect or Memorandum Order must be submitted directly to Justice Livote, Part 33, 88-11 Sutphin Blvd., Courtroom 122, Jamaica, NY 11435, in accordance to the requirements and dates set forth in either the Notice of Defect /or Order of this Court.

Any corrections to a rejected set of matrimonial papers received from the Matrimonial Clerk must be submitted to the Matrimonial Clerk at 88-11 Sutphin Boulevard, Jamaica, NY, 11435.

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1. Be Prepared: Prior to jury selection, counsel is cautioned to ascertain the availability of all witnesses and subpoenaed documents. Plaintiff’s counsel shall requisition the file to the Courtroom as soon as possible after assignment of the case to this Part.
The attorney (s) shall advise the Court of any special needs, e.g. an easel, blackboard, shadow box, television, subpoenaed materials, etc. It is counsel’s responsibility to notify the Court Officer, in advance, so as not to delay the progress of the trial.

Interpreter: If you have a non-English speaking party or witness(es) that requires an interpreter, pursuant to 22 NYCRR §217.1(a), the attorney(s) shall be prepared to advise the Court of the need for an interpreter for any party or witness.

2. Marked Pleadings Plus: Plaintiff’s counsel shall furnish the Court with copies of:

a. “Marked” pleadings as required by CPLR 4012;

b. A copy of any statutory provisions in effect at the time the cause of action arose upon which either the plaintiff or defendant relies;

c. The Bill(s) of Particulars;

d. All expert reports relevant to the issues. Counsel for both parties shall provide to the Court:

e. A chronological summary of all expert witnesses will be offered into evidence together with a glossary of terms that are used or are expected to be used by the expert witness but are typically unfamiliar to a lay person;

f. A chronological list of all dates relevant to the matter on trial;

g. A list of all witnesses to be called and all reports, depositions and written statements which may be used to either refresh a witness’ recollection and/or cross-examine the witness;

h. If any part of a deposition is to be read into evidence (as distinguished from mere use on cross-examination) you must, well in advance, provide the Court and your adversary with the page and line number of all such testimony so that all objections can be addressed prior to use before the jury.

3. Pre-Marked Exhibits: All trial exhibits should be pre-marked for identification, and copies of a list of exhibits must be given to the Court before the trial actually begins. Failure to comply with this rule may result in sanctions which may include an order precluding the offering of such exhibits at trial. See, Davis Eckert v State of New York, 70 NY2d 633, 518 NYS 2d 957.

4. Pre-Trial Conference: At this conference, counsel is expected to fully comply with the provisions of 22 NYCRR § 202.26.


In accordance with the provisions of 22 NYCRR § 202.26(e):

1. Plaintiff shall submit “marked” copies of the pleadings (“marked” copies of the pleadings means that each pleading is plainly marked to indicate which statements are admitted and which are controverted by the responsive pleading, pursuant to CPLR 4012.

2. Plaintiff shall submit a Verified Bill of Particulars and, if any, a doctor’s report or hospital record, or both, as to the nature and extent of injuries claimed.

3. Any Defendant counterclaiming shall submit a Verified Bill of Particulars and, if any, a doctor’s report or hospital record, or both, as to the nature and extent of injuries claimed, so that the Court receives the documents two (2) business days before the Pre-Trial Conference. Please note that failure to provide the documents as directed may be deemed a default under CPLR 3404. Additionally, at this Pre-Trial Conference, counsel should be prepared:

a. To alert the Court as to all anticipated disputed issues of law and fact, and provide the Court with citations to all statutory and common law authority upon which counsel will rely;

b. To stipulate to undisputed facts and the admissibility of clearly admissible documents and records;

c. To alert the Court to any anticipated in limine motions or evidentiary objections which counsel believes will be made during the course of trial;

d. To provide the Court with a copy of all prior decisions and orders which may be relevant to said in limine applications.

e. To discuss scheduling as well as the number of witnesses to be called at trial, and the estimated length of the trial;

f. To alert the Court as to any anticipated problems regarding the attendance at trial of parties, attorneys or essential witnesses, and any other practical problems which the Court should consider in scheduling;

g. To alert the Court of any anticipated requests for a jury instruction relating to missing witnesses and/or documents;

h. To alert the Court of any anticipated request for apportionment as to alleged culpable non-parties pursuant to CPLR Article 16.

Attendance by Insurance Carriers: Pursuant to 22 NYCRR §202.26(e) a representative to the insurance carrier or any other entity having an interest in any settlement, including those holding liens on any settlement or verdict, shall attend the Pre-Trial Conference in person or shall be available by telephone at that time.

5. Trial Date: A trial date will be scheduled at the Pre-Trial Conference, the attorneys shall be aware of the schedules of any parties, witnesses or experts expected to be called at trial.

6. Failure to appear: Please note that any failure to appear at the scheduled Pre-Trial Conference may be deemed a default by the Court pursuant to 22 NYCRR § 202.27. The failure of a plaintiff or plaintiff’s attorney to appear may result in the dismissal of their action; the failure of a defendant or defendant’s attorney to appear may result in the granting of a judgment of default against the defendant; and the failure of all parties or their attorneys to appear, may result in such other orders as appears just.

7. Subpoenaed Records: If subpoenaed records are received in a digital format (CD, DVD or Drive), hard copies of said records MUST be produced by the party or third-party provider, to be admissible. PDFs or files requiring printing will be not be accepted. One (1) hard copy must be provided to the Court and a hard copy provided to each party in the action.

8. Deposition Transcript: Deposition transcripts must be produced to the Court prior to witness testimony. All deposition transcripts must be produced in hard copy printed on one side only for the Court. No pdfs or files requiring printing will be accepted.

9. Records Requiring Redaction: Each party shall provide proposed redactions prior to seeking admission. The court shall rule on each side’s proposed redactions. Failure to provide proposed redactions shall render the documents inadmissible.

10. No Communication with Jurors: In order to maintain the appearance of total impartiality, once the jury has been selected no one is to communicate in any form at any time with any juror. This includes both verbal and non-verbal communication, including without limitation, nods, shrugs and shaking the head. Do not even say “hello” or “good morning.”

11. Check-In: At the start of each day on trial, check in with the Clerk of the Court and/or Court Officer so that (s)he will be aware of your presence.

12. Trial Objections and Arguments: If a trial lawyer wishes to make an objection, it can be accomplished by standing and saying the word, “objection,” and by adding thereto up to three more words so as to state the generic grounds for the objection, such as “hearsay,” “bolstering,” “leading” or “asked and answered.” If you believe further argument is required, ask permission to approach the bench. This request will almost always be granted. Keep in mind that you will always be given the opportunity to make a full record.

13. Courtroom Comments and Demeanor: All remarks should be directed to the court. Comments should not be made to opposing counsel. Personal remarks, including name-calling and insults, to or about opposing counsel will not be tolerated. Remember, do not try to “talk over” each other; only one person speaks at a time or the record of the proceeding will be incomprehensible. Simple requests (e.g. a request for a document or exhibit), should be accomplished in a manner which does not disrupt the proceedings or your adversary; If you require a significant discussion with your adversary, such as a possible stipulation, ask for permission to approach the bench. The Court will grant that request, and you will have a chance to present your arguments outside the presence of the jury. In addition, there will be no grandstanding in the presence of the jury, i.e., making demands, offers or statements that should be properly made outside the presence of the jury.

14. Use of Proposed Exhibits: Do not show anything, including an exhibit or proposed exhibit to a witness without first showing it to opposing counsel. If a party claims that this procedure will compromise trial strategy, a pre-offer ruling outside the presence of the jury should first be obtained from the Court.

15. Examination of Witnesses: Do not approach a witness without permission of the Court. Please allow the witness to complete his/her answer to your question before asking another question. Do not interrupt the witness in the middle of an answer, unless it is totally unresponsive in which event you should seek a ruling from the Court. Direct examination, cross-examination, redirect examination and re-cross examination are permitted. However, the Court does not ordinarily permit re-redirect examination and re-cross examination of a witness. Expert Witnesses: No expert witness shall be scheduled to testify on a Friday without the express written consent of the Court.

16. Motions in Limine and Trial Memoranda: These must be submitted to the Court and copied to opposing counsel the day prior to the day of trial when the ruling is sought as to permit the court to research the issue. Oral requests and late requests will not be entertained and will be deemed waived.

17. Jury Charge & Verdict Sheet: At the commencement of the trial, all counsel shall submit to Chambers suggested jury charges and a suggested verdict questionnaire, along with any statutes, regulations or ordinances requested to be read to the jury, in writing or by e-mail, preferably in WordPerfect format as an attachment, to Law Secretary Kevin Morrissey on a CD Rom disk.

The following guidelines are required:

a. All requests to charge, including amendments, shall be made in writing;

b. All requests should be narrowly tailored to fit the specific facts of the case;

c. Amendments shall be permitted at the final charging conference in writing. Except in very limited circumstances, jury charges will be delivered as written in the Pattern Jury Instructions (PJI) without changes. PJI’s shall be listed by number and caption only;

d. If any changes to the PJI are suggested, then the entire proposed charge should be set forth and the changes should be highlighted or otherwise called to the Court’s attention. Citations to appropriate statutory or common law authority must be given in support of suggested non-PJI jury charges or suggested PJI modifications. In addition, unless a marshaling of the evidence is waived, counsel should, at the final charging conference, provide the court with the proposed facts which counsel believes should be marshaled by the court; and the respective contentions of the parties. In medical malpractice cases, alleged departures and contentions must be provided prior to the charging conference;

f. Statutory sections and local regulations that are requested to be included must be provided by statute, section, subsection, rule and regulation.

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Settlements and Discontinuances

In order to discuss settlement with the Court, please provide copies of any pertinent medical reports, IME Reports, if any, economic loss information, if any, and any other information or documents related to liability and/or damages that support your client’s position.

* Many of these rules are designed to allow the trial to proceed without unnecessary interruptions by objections and other matters which can be resolved pre-trial and out of the presence of the jury.

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Contact the Part Clerk concerning all matters pending in Part 33, including Infant’s Compromises.

Part 33, Courtroom 122 and Clerk: (718) 298-1043




Decisions/Orders: For a copy of a decision/order, check e-courts or go to the Queens County Clerk’s Office at 88-11 Sutphin Boulevard.

DO NOT FAX ANY LETTERS/DOCUMENTS to Part 33 unless permission has been granted by Chambers to do so.

Part 33 Tax Certiorari P.C. Calendar:

The Tax Certiorari P.C. and/or Motion Calendar will be called at 9:30 a.m. on the second Monday of each month in Courtroom 122. In the case of a court holiday or closing on any of these Mondays’ please check e-courts to find the new date.


Inquiries as to case or calendar status are to be made to the appropriate Clerk's Office:

Court Clerk - Part 33 (718) 298-1043

Motion Support Office (718) 298-1009

Ex Parte Support Office (718) 298-1018

Preliminary Conference (PC) (718) 298-1046

Compliance Conference (718) 298-1093

Centralized Motion Part (CMP) (718) 298-1728

ALL INQUIRIES concerning motions must be directed to the CENTRALIZED MOTION PART, including all ADJOURNMENTS OF MOTIONS.

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