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Kings County - Brooklyn

Former Kings County Commercial Division Rules

Note: What Follows Are Former Rules Of The Commercial Division In Kings County; They Are No Longer In Effect.

General Rules | Conferences | Motions | Trials


Rule 1. Appearance by counsel with knowledge and authority. Counsel who appear in the Commercial Division must be fully familiar with the case in regard to which they appear and fully authorized to enter into agreements, both substantive and procedural, on behalf of their clients. Failure to comply with this rule may be regarded as a default and costs and sanctions may be imposed. Counsel must appear on time for all scheduled appearances.

Rule 2. Settlements and discontinuances. If an action is settled, discontinued, or otherwise disposed of, counsel shall immediately inform the Court by submission of a copy of the stipulation or a letter directed to the clerk of the Part. Filing a stipulation with the County Clerk will not suffice to effect a settlement, discontinuance or disposition.

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Rule 3. Preliminary conferences. A preliminary conference will be held within forty-five days of assignment of the case to a Commercial Division judge. Where a Request for Judicial Intervention is accompanied by a motion that may dispose of all or any part of the action, the preliminary conference shall take place within thirty days following the date of the decision of such motion (unless the decision on the motion disposed of the case). Said decision shall include a date for the preliminary conference if appropriate. Adjournments of a preliminary conference may be requested by submission of a written stipulation within 45 days of the filing of the RJI The adjournment of a conference is at the discretion of the court and may be permitted for good cause shown.

Rule 4. Consultation among counsel prior to preliminary and compliance conferences. Counsel for all parties shall consult prior to a preliminary or compliance conference about (i) resolution of the case, in whole or in part, and (ii) discovery and any other issues to be discussed at the conference. Counsel shall make a good faith effort to reach agreement on these matters in advance of the conference.

Rule 5. Familiarity with outstanding motions. Counsel must be prepared to discuss and/or orally argue at conference appearances any motions that are outstanding.

Rule 6. Discovery schedule. The preliminary conference will result in the issuance by the court of a case scheduling order. Where appropriate, the order will contain specific provisions for early means of disposition of the case, such as (i) directions for submission of the matter to Alternative Dispute Resolution, (ii) a schedule of limited-issue discovery in aid of early dispositive motions or settlement or (iii) a schedule for dispositive motions before disclosure or after limited-issue disclosure. The order will also contain a comprehensive disclosure schedule, including dates for the completion of impleader and discovery, motion practice, a compliance conference if needed, and a date for filing the note of issue.

Rule 7. Non-appearance at a conference. The failure of counsel to appear for a conference may result in an order directing dismissal, the striking of an answer and an inquest or direction for judgment, or other appropriate sanction. (CPLR 3216, Uniform Rule 202.27)

Rule 8. Adherence to discovery schedule. Parties shall strictly comply with discovery obligations by the dates set forth in all case scheduling orders. No extensions of such deadlines shall be allowed unless specifically authorized by the court. If any party fails to comply with such order, an appropriate sanction may be imposed against that party pursuant to CPLR 3126 or Part 130 of the Rules of the Chief Administrator.

Rule 9. Disclosure disputes. Counsel must consult with one another in a good faith effort to resolve all disputes about disclosure. If counsel are unable to resolve a disclosure dispute, the aggrieved party shall contact the clerk of the part or the judge’s law secretary to arrange a conference. Said conference shall be scheduled within 5 business days. Counsel may request a conference by telephone if that would be more convenient and efficient than an appearance in court. Counsel shall have the right to bring a formal motion to compel disclosure or for sanctions or other relief, but only after complying with this rule.

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Rule 10. Form of motion papers. To facilitate the framing of a decision and order, the movant shall specify, clearly and comprehensively, in the notice of motion, order to show cause, or in the concluding section of a memorandum of law, the exact relief counsel seeks. Counsel must attach copies of all pleadings and other documents as required by the CPLR and as necessary for an informed decision on the motion. Counsel should always use tabs when submitting papers containing exhibits. Copies must be legible. If a document to be annexed to an affidavit or affirmation is very voluminous and only discrete portions are relevant to the motion, counsel may attach excerpts and submit the full exhibit separately. Documents in a foreign language shall be properly translated. CPLR 2101(b). Whenever reliance is placed upon a decision or other authority not readily available to this court, a copy of the case or of pertinent portions of the authority shall be submitted with the motion papers. Motion papers shall comply with Part 130 of the Rules of the Chief Administrator. Papers shall be double spaced and contain print no smaller than ten-point, on 8 X 11 inch paper, bearing margins no smaller than one inch.

Rule 11. Sur-reply and post submission papers. The CPLR does not provide for sur-reply papers. In addition, the presentation of papers or letters to the court after submission or argument of a motion is not permitted. Opposing counsel who receive a copy of materials submitted in violation of this rule should not respond in kind.

Rule 12. Orders to Show Cause. Motions should be brought on by order to show cause only when there is a genuine urgency. Such urgency include applications for provisional remedies; if a stay is requested or a statute mandates so proceeding. Orders to show cause should be submitted through the ex-parte motion office, 10th Floor North, 360 Adams Street.

Rule 13. Temporary Restraining Orders. Absent extraordinary circumstances, the court will not issue a temporary restraining order unless the applicant has given notice to opposing parties sufficient to permit them an opportunity, if so inclined, to appear and contest the application.

Rule 14. Courtesy copies. Courtesy copies should not be submitted unless requested.

Rule 15. Oral argument and advance notice on motions.

(a) All motions require appearances and oral argument. The date a motion has been scheduled for oral argument will be published in the New York Law Journal on the notice date of the motion. All responsive papers must be filed with the Court by the notice day of the motion. Orders to show cause are argued on the date indicated in the order.

(b) Prior to making any discovery motion, counsel shall confer with one another as to whether a conference or teleconference would facilitate resolution or limitation of the dispute. If so, the prospective movant shall contact the Clerk of the Part or the Judge’s law secretary and request that a conference be scheduled or, if more convenient and efficient, that a teleconference be arranged. A teleconference will be granted at the discretion of the Commercial Division judge.

Rule 16. Post Note of Issue Summary Judgment Motions. No motion for summary judgment may be made more than sixty days after filing a Note of Issue, except with leave of the Court on good cause shown.

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Rule 17. Trial schedule. Trials will be scheduled at least one month in advance. Counsel will be expected to be ready to proceed either to select a jury or to begin presentation of proof on the scheduled date. Once a trial date is set, counsel are to immediately determine the availability of witnesses. If for any reason, counsel are not prepared to proceed on the scheduled date, the court and all opposing counsel are to be notified within five days of the date on which counsel are assigned a trial date.

Rule 18. Estimated length of trial. At least five (5) business days prior to trial or such other time as the court may set, the parties, after considering the testimony of, and, if necessary, consulting with their witnesses, shall furnish the court with an estimate of the length of trial.

Rule 19. Motion in Limine. At least ten (10) days prior to trial, the parties shall make all motions in limine that require rulings prior to trial, except for those not reasonably anticipated in advance.

Rule 20. Pre-marking of exhibits. Counsel for the parties shall consult prior to trial and shall in good faith attempt to agree upon the exhibits that will be offered into evidence without objection. Each side shall then mark its exhibits to which no objection has been made, with plaintiff using numbers for its exhibits and defendant using letters. Each side shall thereafter mark the contested exhibits, continuing the sequence previously used but also marking each exhibit with the letter "Q". At least five (5) business days prior to trial or such other time as the Court may set, each party shall submit to the court and other counsel a list of the uncontested and contested exhibits and a copy of the latter. If the contested exhibits are exceptionally voluminous, counsel shall consult with the Clerk of the Part for guidance. The court will rule upon objections to the contested exhibits at the earliest possible time after consultation with counsel.

Rule 21. Pre-trial memoranda, exhibit book and request for jury instructions.

(a) Counsel shall submit pre-trial memoranda upon request of the court. Such memoranda shall be submitted no later than five (5) business days prior to trial or such other time as the court may set.

(b) Upon request of the court, counsel shall submit a book of trial exhibits for the Court’s use.

(c) Where the trial is by jury, counsel shall provide the court with written requests to charge at the beginning of trial. Where the requested charge is from the New York Pattern Jury Instructions - Civil, (PJI) a reference to the PJI number will suffice. Counsel shall also submit proposed jury interrogatories.

Rule 22. Scheduling and availability of witnesses. At least five (5) business days prior to trial, each party shall identify in writing for the court and the other parties the witnesses it intends to call, the order in which they shall testify and the estimated length of their testimony.

Rule 23. Preclusion. Except for good cause shown, no party shall present the testimony of a witness or exhibits that were not identified as provided in Rules 20, 21 and 22 and not identified during the course of disclosure in response to a relevant discovery demand of a party or an order of the Court.

Rule 24. PreTrial conference. The Court will set a date and time for pretrial conference. Prior to the conference, counsel shall confer in a good faith effort to identify issues not in contention, resolve all disputed questions without need for Court intervention, and settle the case. At the conference, counsel should be prepared to discuss all matters as to which there is disagreement between the parties, including those identified in Rules 19-21, and the possibility of settlement. At or before the conference, the Court may require the parties to prepare a written stipulation of undisputed facts or, in an appropriate case, a pretrial order.

Rule 25. Alternative Dispute Resolution. Upon consent of the parties, a Justice presiding in the Commercial Division may refer appropriate cases to Alternative Dispute Resolution (ADR). In such event, the parties shall fully comply with the rules of the ADR program. A copy of the rules shall, upon issuance of an Order of Reference, be served upon all parties by the Clerk of the Court.

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