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Civil Term - Part Rules, Part 37, Courtroom 44


Civil Term - Part Rules for Part 37 in Courtroom 44 [and NOT Courtroom 44A], on the fourth floor, at 88-11 Sutphin Boulevard, Jamaica, New York 11435

JUSTICE SALVATORE J. MODICA

Principal Court Attorney: HOWARD L. WIEDER, ESQ.
Chambers Phone: (718) 298-1604 [MR. WIEDER] [please read below discouraging calling]

Courtroom Clerk: Mr. RAY VEGA
Courtroom Phone: (718) 298-1035 [MR. VEGA]

 

BASIC TEN COMMANDMENTS | GENERAL RULES | SEEKING RELIEF BY ORDERS TO SHOW CAUSE (“OSC”) | BASIC RULES GOVERNING MOTIONS | APPEARANCES | PAPER SUBMISSIONS | MOTIONS TO RE-ARGUE OR RENEW | ADJOURNMENTS | DISCOVERY MOTIONS | BRIEFING SCHEDULES | STATUS OF DECISIONS | INFANT’S COMPROMISE ORDERS || TRIALS | PRE-TRIAL CONFERENCES


1. ALL QUESTIONS REGARDING MOTIONS, ADJOURNMENTS, CALENDAR CALLS, AND SCHEDULING SHOULD BE MADE TO THE PART CLERK AT 718-298-1035, AND NOT TO CHAMBERS.

2. EMERGENCY APPLICATIONS OF PROPOSED ORDERS TO SHOW CAUSE (“OSCs”) MUST CONFORM IN ALL RESPECTS TO 22 NYCRR 202.7(f)

3. DO NOT MAIL IN COURTESY COPY OF PAPERS. THEY WILL BE DISCARDED. ON THE RETURN DATE, PLEASE BRING IN WORKING COPIES OF ALL EFILED PAPERS, AND WRITE IN THE MOTION SEQUENCE NUMBER CONSPICUOUSLY ON TOP OF THE NOTICE OF MOTION.

4. The failure to write in the motion sequence number on all working copies of papers will result in the clerks not being able to record the results of any decision rendered and will result in motions appearing to remain undecided, although, in fact, decisions may have been rendered.

5. ALL PROPOSED OSCs MUST BEAR THE MOVANT’S OR MOVANT’S COUNSEL EMAIL ADDRESS SO THAT CHAMBERS CAN SCAN THE SIGNED ORDER IMMEDIATELY TO MOVANT SO THAT MOVANT CAN BEGIN EFFECTUATING SERVICE OF THE SIGNED AND CONFORMED PAPERS.

6. Please notify the Court, especially while a motion is sub judice, if the action has been settled and discontinued and/or that the dispute underlying the motion has been resolved. If you resolve the motion or action while a motion is before Justice Modica, please inform the Court in writing by email to Mr. Wieder at hwieder@nycourts.gov, with a cc to opposing counsel

7. ON ALL DISCOVERY MOTIONS, THE LAWYER APPEARING MUST BE FULLY FAMILIAR WITH ALL THE FACTS OF THE CASE.

8. Part 37 is not a submissions part. Personal appearance is required.

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GENERAL RULES

Part 37 is a very busy IAS Part and is constrained to operate without a personal secretary to the Judge. Therefore, your adherence to the following basic rules is necessary for the proper administration of justice. First, only when absolutely necessary, you can send any question to Chambers by contacting Howard L. Wieder, Esq., Principal Court Attorney to Justice Salvatore J. Modica, at: hwieder@nycourts.gov .

Please do not send any e-mails to any of the Judge’s e-mail addresses. You will receive a response. Any attachment must be scanned with your e-mail. You must send “cc” copies of your e-mail to all opposing parties. Do not attempt an ex parte e-mail.

Chambers does NOT have a fax machine. And, given that the Court does not have a secretary of any kind, telephone calls are strongly discouraged. Leaving messages on the Chambers telephone answering machine is strongly discouraged.

Do not ask questions that you can get information elsewhere, as dates when a case appears for a Preliminary Conference [Justice Modica does NOT handle PCs of his cases], or in the Compliance Conference Part [718-298-1089], or whether there is a decision on the motion [try Motion Support Office, 718-298-1009, for such information].

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SEEKING RELIEF BY ORDERS TO SHOW CAUSE (“OSC”)

1. When submitting an OSC, you must provide the movant’s e-mail address so that a copy of the signed OSC will be sent to you by e-mail. Failure to include your e-mail address visibly will be grounds alone for denying the OSC without prejudice to re-filing.

2. In most instances, the Court will require that you make service on opposing counsel and any other interested or affected person by either FedEx or DHL overnight service. Please be sure to include that in your order of specifying “either FedEx or DHL overnight.”

3. On Orders to Show Cause to withdraw as counsel, if granted, the Court will usually permit a stay of only thirty (30) days for the litigant to find new counsel. Only if the movant demonstrates exceptional circumstances, the Court will permit a stay of sixty (60) days. The movant should include in the proposed OSC a proposed TRO that stays the case. If a case is already scheduled in the Trial Scheduling Part (“TSP”), the Court will most likely reject any proposed OSC for withdrawal of counsel.

4. On mortgage foreclosure cases, where the Court has already granted a post-judgment stay of execution, and then denied the ultimate relief of vacating the judgment, any effort by the movant for a serial application(s) of a stay will be rejected.

5. OSCs to vacate the note of issue will not be granted where the action is already scheduled on the TSP calendar. In such an instance, the proposed application will likely be denied without prejudice to making oral application for the relief sought before the Presiding Justice at TSP.

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BASIC RULES GOVERNING MOTIONS


All motions shall be made returnable and heard on Mondays [other than Mondays that are court-observed legal holidays] at 10:00 a.m. in Courtroom 44, on the fourth floor, at the Courthouse located at 88-11 Sutphin Blvd., Jamaica, New York 11435.

Justice Modica urges that your e-mail address, especially of the movant, be placed on the papers so that the Court may reach you if there is a question or to let you know if the Court needs to schedule oral argument on a non-discovery motion at a later date.

Failure to notice a motion in compliance with the designated day, time, and location above WILL LIKELY result in the motion being “Marked Off” calendar without prejudice. Designating the time at 9:30 a.m. will not be regarded as a substantial defect, but designating the time as 10:30 a.m. will most definitely be considered as a major defect requiring that the motion be marked off.

There will be a second calendar call IMMEDIATELY FOLLOWING THE FIRST CALL. The First Call is done simply to check lawyers in.

ALL DISCOVERY-RELATED MOTIONS REQUIRE A PERSONAL APPEARANCE BY A LAWYER WITH KNOWLEDGE AND AN ABILITY TO ENTER INTO A STIPULATION.

Oral Argument on non-discovery-related motions WILL USUALLY NOT BE HELD. If an argument is required, you will be notified.

The Court may administratively reschedule any application or motion noticed for a holiday or a day on which the part is closed. Information will be available on e-courts. Should the Part administratively reschedule, the movant will be responsible for notifying all parties of the administratively rescheduled date and providing proof of same to the Part on the rescheduled adjournment date.

In any case where a motion is “Marked Off” for non-compliance with the Part Rules such as improper notice, failure to appear in Court as required by the Part Rules, or failure to provide a working copy of an e-filed motion, a new motion for the original relief sought may be filed in accordance with the Part Rules. A motion to Restore, Renew or Reargue is NOT required.

The moving papers on non-e-filed cases shall be filed in the Motion Support Office at least five (5) business days prior to the return date on the notice so that it can be placed on the Part 37 motion calendar for that day. The parties shall notify the Court immediately when withdrawing any pending motion or application in the event a matter is settled or discontinued.

The notification of a withdrawn motion must be instantaneous and be conveyed in an e-mail to Mr. Wieder at hwieder@nycourts.gov .

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APPEARANCES

Any attorney appearing on a case for any purpose MUST be familiar with the case, prepared, and authorized to resolve any and all issues.

Mandatory appearance will be required for an Order to Show Cause, Writ of Habeas Corpus, and all discovery-related motions, including, but not limited to, motions to vacate note of issues, directing compliance, etc.

Whenever a personal appearance is not required, use of calendar service is permitted both to submit papers and to request consent adjournments, which will be strictly limited only to one adjournment (except in extraordinary circumstances of serious illness or death).

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PAPER SUBMISSIONS

All responsive papers must be submitted in person by counsel on the return date of the motion or application. The Part does not accept any responsive papers by mail or by fax.

Papers shall not be accepted prior to the call of the calendar with only one exception: stipulations withdrawing motions or applications. Such stipulations may be submitted on the morning of the return date in person or by service.

No Sur-Reply papers will be allowed, unless so authorized by the Court.

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MOTIONS TO RE-ARGUE OR RENEW

Motions to renew and/or reargue shall contain a copy of the court’s original decision and copies of all papers submitted in support of the original motion.

On any application subject to E-FILE:

Working copies ARE required and must be submitted at the call of the calendar. Failure to present the required working copy at the calendar call will result in the matter being marked off the calendar.

Each working copy must include, firmly affixed to the back of the motion papers and facing outward, (1) a copy of the confirmation notice received from the NYSCEF site upon the electronic filing of such documents and (2) the e-mail addresses of counsel.

A party that has opted out of participation in e-file will file documents in hard copy which will include, on a separate page firmly affixed thereto, the “NOTICE OF HARD COPY SUBMISSION– E-FILED CASE” form, which can be found on the NYSCEF site at https://iapps.courts.state.ny.us

All motion papers, including working copies, shall be securely fastened and shall have protruding exhibit tabs. Non-conforming papers may be rejected by the Court.

All motion papers shall contain the e-mail addresses of all counsel in the event the Court has a question. Chambers has a distinct preference for e-mail communication, and not telephone, so that your e-mail address must be shown on all moving, opposition, and reply papers underneath the signature and on the legal back.

Any e-mail to the Court should be sent to the attention of Mr. Wieder at hwieder@nycourts.gov . You are likely to get a fast response. Calling Chambers is discouraged.

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ADJOURNMENTS

Adjournments on consent will be allowed upon written stipulation ONLY. All stipulations must contain the signature of all attorneys consenting to the adjournment. Stipulations requesting a consent adjournment or withdrawing an application may be submitted during the call of the calendar ONLY and NOT by mail, fax or telephone call.

Only ONE adjournment will be permitted and any additional requests for future adjournments will be considered at the Court’s discretion, and will rarely be granted.

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DISCOVERY MOTIONS

Discovery motions will NOT be adjourned. The moving party on discovery motions should ensure that all parties are notified and present at the calendar call. If any opposing party to a discovery motion fails to appear on the return date of the motion, the Court will make its written determination of the discovery motion upon default.

Please be aware that Justice Modica firmly believes that discovery obligations must be respected. In an appropriate case, pleadings will be struck where there is a repeated and contumacious failure to abide by court orders mandating discovery. See, e.g., 150 Centreville, LLC v. Lin Assocs. Architects, P.C., 151 A.D.3d 912 (2nd Dept. 2017); Coley v. Baez, 2011 WL 66043, 2011 N.Y. Slip Op. 50016(U) (Sup. Ct. Queens County 2011) (Markey, J.).


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BRIEFING SCHEDULES

On the return date of the initial motion, a briefing schedule will be issued with dates for responsive papers. This schedule shall be conveyed verbally or in writing to the attorneys and shall appear on the face of the motion papers. Failure to comply or serve responsive papers in accordance with the briefing schedule shall result in the rejection of those papers on the adjournment date.

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STATUS OF DECISIONS

Copies of motion or application decisions or orders WILL NOT be sent to counsel unless deemed necessary by the Part. Decisions or orders can be retrieved on-line or at the County Clerk’s office located in the Jamaica courthouse, Room 106.

E-mails regarding the status of a motion or application decision will be entertained only for decisions that have been pending for more than 60 days. In that case, the request MUST be in writing, contain the name of the matter, index number, and date the motion was marked submitted.

Further inquiries should be directed to the Motion Support Office at 718-298-1009 or Ex-Parte Support Office 718-298-1018.

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INFANT’S COMPROMISE ORDERS

Applications for Infant Compromise Orders shall be made pursuant to CPLR 1207(a) and shall be supported by the documentation required by CPLR 1208 and 22 NYCRR 202.67. Applications submitted without the appropriate documentation will be denied. Infant compromise hearings will be scheduled by the Court and the parties will be notified of the hearing date by mail or fax.

All counsel desiring the checklist for documents and information that must be submitted should get the checklist and the link for the pdf is contained herein:

ICO CheckList2.PDF

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TRIALS

Plaintiff’s counsel shall requisition all subpoenaed records to the Part 37 courtroom immediately after assignment of the case to this Part. Counsel should ascertain the availability of all witnesses and subpoenaed documents. Any special needs, e.g., interpreter, easels, blackboards, shadow boxes, television, subpoenaed material, etc., must be reported to the Part Clerk, at least 24 hours in advance, so as not to delay the progress of the trial.

All counsel must submit to the Court, prior to the commencement of trial, marked pleadings, a copy of the bill of particulars, a witness list, an exhibit list, proposed jury instructions and a proposed jury verdict sheet. Counsel must also know the availability of all witnesses who they intend to call during trial.

Amendments to the proposed jury instructions and the proposed verdict sheet, shall be permitted prior to the final charge conference. All requested jury charges should be referred to by PJI number and topic. If changes to the PJI are suggested, then the entire proposed charge should be set forth with the changes made highlighted. Citations to appropriate statutory or common law authority must be given in support of proposed non-PJI jury charges or proposed PJI modifications.

To the extent any part of a deposition is to be read into evidence (as distinguished from mere use on cross-examination) counsel must, in advance, provide the Court and counsel for all other parties with the page and line numbers of all such testimony, so that all objections may be addressed prior to use before the jury.

The Court encourages trial exhibits be pre-marked for identification and, where possible, that the parties stipulate to the admissibility of clearly admissible documents and records.

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PRE-TRIAL CONFERENCES

Pre-trial conferences will be held prior to every trial. At these conferences, counsel should be prepared to:

a) Discuss settlement;

b) Advise the Court as to all anticipated disputed issues of law and fact, and provide the Court with copies of all statutory and common law authority upon which counsel will rely;

c) Stipulate to undisputed facts and the admissibility of clearly admissible documents and records;

d) Advise the Court of any anticipated in limine motions or evidentiary objections which counsel intends to make. Motions in limine may be made orally, however they must be supported by a memorandum of law. Any written motions in limine require proof of payment of the appropriate fee. Counsel shall provide the Court and all parties with copies. All prior decisions and orders relevant to any in limine application must be provided to the Court;

e) Advise the Court of any anticipated requests for a jury instruction relating to missing witnesses and/or documents;

f) Advise the Court of any anticipated request for apportionment as to alleged culpable non-parties pursuant to CPLR Article 16;

g) Discuss scheduling and the estimated length of the trial. Counsel should alert the Court as to any anticipated problems regarding the attendance at trial of parties, attorneys or essential witnesses and any other practical problems that the Court should consider in scheduling.

Trials will be conducted on a continuing day-to-day basis until conclusion. No adjournments or delays during trial will be accepted, unless exigent circumstances exist. All actions are generally bifurcated. The Court expects, the parties to be prepared to proceed to trial on damages immediately following a plaintiff’s verdict on liability.

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