A few weeks back, my colleague Chris Clarke reported on the response of the New York court system to the commercial chaos arising out of the COVID-19 pandemic, including in the court system generally, the Appellate Division, and of course, the Commercial Division.
Among other developments, Chris’s post highlighted Chief Administrative Judge Lawrence K. Marks’s March 15 statewide Memorandum — which postponed until further notice all “non-essential” court functions as part of a “continuing and evolving effort to assure the operation of the courts in the safest possible manner for the public and our employees in this time of medical emergency” — as well as his March 19 Administrative Order — which “strongly discouraged” in-person litigation or other actions “inconsistent with prevailing health and safety directives relating to the coronavirus health emergency.”
Recent decisions throughout the state, including in New York County, suggest that courts are adhering to these directives, particularly as it relates to discovery.
For example, the day after Judge Marks’s Administrative Order, the Supreme Court in Brielmeier v Legacy Yards Tenany, LLC granted a motion to compel a post-Note of Issue IME and allowed the parties to further adjourn the IME — already more than two years delinquent due to “law office failure” — by an additional 60 days “if the IME cannot be conducted due to the COVID-19 pandemic.”
A week later, in Galas v. Thor 1231 Third Ave. LLC, New York County Supreme denied a pre-mature motion for summary judgment and directed the parties to proceed with depositions — with the caveat that “to the extent that the parties are unable to conduct their depositions as scheduled in their last conference order due to the current COVID-19 (coronavirus) crisis, they may reschedule them at the next conference.”
Elsewhere around Foley Square, certain SDNY judges have developed standing orders dealing with the crisis that are being adopted and issued in dozens of cases across the board.
For example, District Judge Lewis J. Liman , as well as Magistrate Judges Katherine H. Parker and Barbara Moses — in light of the federal government’s ongoing efforts “to minimize person-to-person contact” — have been issuing the following standing order concerning depositions:
ORDERED, … that all depositions in this action may be taken via telephone, videoconference, or other remote means, and may be recorded by any reliable audio or audiovisual means…. For avoidance of doubt, a deposition will be deemed to have been conducted “before” an officer so long as that officer attends the deposition via the same remote means (e.g., telephone conference call or video conference) used to connect all other remote participants, and so long as all participants (including the officer) can clearly hear and be heard by all other participants.
District Judge P. Kevin Castel, for his part, has been issuing a standing order directing that all upcoming court conferences “will be held by teleconferencing” and requiring all plaintiffs’ counsel to “contact all defendants’ counsel to provide defense counsel with call-in information; [and] email the call-in information to [Judge Castel].”
Taking the award for the “Most Humane Standing Order,” however, is Magistrate Judge Ona T. Wang, whose order not only insists on the now all-too-familiar “shelter-in-place” protocol…
ORDERED, that counsel shall conduct work remotely. This includes, but is not limited to, client meetings, work meetings, and hand deliveries of courtesy copies to the Court (courtesy copies can be sent via email or mail)
… but also expresses a certain sensitivity to what may be going on in the personal lives of litigants during this crisis…
ORDERED that if any party or counsel has any private, personal, familial or medical concerns that they need to share with the Court that would necessitate further orders, counsel may email [Judge Wang] ex parte provided that they advise the other parties that they will be contacting the Court ex parte.
A final note of caution with regard to this recent trend of coronavirus compassion from the courts:
Lest any litigant be tempted to take advantage of the slack cut by these decisions and orders, one would be well-advised to heed the recent admonishment from District Judge Kenneth M. Karas in Koch v Preuss following an appeal from the dismissal of a bankruptcy proceeding for lack of prosecution:
Appellant’s attempt to invoke the recent coronavirus pandemic to excuse his failures over the past eleven months is, frankly, appalling. Over the past few days, this Court has granted every request for an extension or telephone conference with which it has been presented based on the coronavirus. The Court is acutely aware of the hardships and dislocations associated with the current pandemic, and the Court has assumed good faith by those making related requests. Appellant’s request, however, is different. While the coronavirus outbreak is recent, appearing in the United States and coming to public attention within the last month, Appellant’s failures have been lengthy, repeated and ongoing for nearly a year…. In sum, Appellant cannot excuse his longstanding failure to prosecute his appeal by retroactively capitalizing on a recent crisis.