Perhaps I’m revealing too much about my abilities in a prior life to balance academic and social priorities, but does anyone else remember the “not less than X pages” page requirements for high-school and college term papers and the corresponding font, margin, and line-spacing tricks for getting the assignment over the finish line?

attorney competition

Well, it would appear that lawyers – being the “remarkably insecure and competitive group of people” that they are – suffer from the opposite affliction.  According to a recent proposal from the Commercial Division Advisory Council to amend Commercial Division Rule 17 concerning length of papers, “attorneys have incentives to unfairly squeeze additional content into the allotted pages” and “have developed techniques to ‘cheat’ the limit.”

The Advisory Council’s proposal to amend Rule 17 seeks to eliminate the unfair and disingenuous “incentives” and “techniques” currently utilized by attorneys through the implementation of word rather than page limits on their submissions to the court.

The current Rule 17 provides that “(i) briefs or memoranda of law shall be limited to 25 pages each; (ii) reply memoranda shall be no more than 15 pages and . . . ; (iii) affidavits and affirmations shall be limited to 25 pages each.”

The Advisory Council’s Rule 17 proposal “substitutes word limits in place of the page limits set forth in the current rule:  7000 words (currently 25 pages) in briefs, memoranda of law, affidavits and affirmations; and 4200 words (currently 15 pages) in reply memoranda.”

I’ve seen enough decisions expressly referencing Rule 17 over the years to suggest that the Justices of the Commercial Division would support the change.  Just two months ago, in Domingo v Bidkind, LLC, Manhattan Commercial Division Justice Saliann Scarpulla admonished the defendants’ counsel for “fail[ing] to adhere to the page limits provided in Commercial Division Rule 17 in this motion and in another related action.”  Others, like former Kings County Commercial Division Justice Carolyn E. Demarest, have instituted “appropriate penalties” for Rule 17 violations – including, for example, in her Aish Hatorah NY, Inc. v Fetman decision from 2015 where she flat-out “disregarded” the latter 27 pages of a 52-page brief in support of a motion to renew and reargue.  Former Westchester County and Manhattan Commercial Division Justices Alan D. Scheinkman and Richard B. Lowe, III issued similar penalties number of years ago in Reilly Green Mountain Platform Tennis v Cortese and LaRosa v Arbusman.

According to the Advisory Council, word limits, which are more precise and uniform in application, better serve the purpose and spirit of Rule 17 – namely, to “encourage attorneys to focus on strong, concise arguments, and ensure that judges and opposing counsel are not overwhelmed with meandering, repetitious briefs.”

Word limits on papers submitted in the Commercial Division also would conform to appellate brief-writing parameters currently operative in the First and Second Departments, which require parties to certify in writing that their submissions comply with the applicable word-count requirements.

Anyone interested in commenting on the proposed amendment to Rule 17 may do so by sending or emailing their comments to John W. McConnell, Esq. (rulecomments@nycourts.gov), Counsel, Office of Court Administration, 25 Beaver Street, 11th Floor, New York, NY  10004.

For the fifth installment of this blog’s ongoing “Check the Rules” series, we feature the individual practice or part rules of the Justices of the Kings County Commercial Division, particularly those recently instituted by Hon. Sylvia G. Ash.

As hyperlinked within any number of past posts on this blog, the Commercial Division’s official webpage – which encompasses all eight of its statewide locations, including the busy metro counties of New York, Queens, and Kings – provides users with county- and judge-specific practice information, including individual rules and procedures for many of its Justices. Check the Rules

Notably, however, the link to the Kings County Commercial Division, which contains separate links to bibliographical and contact information for its two Justices, Hon. Sylvia G. Ash and Hon. Lawrence Knipel, does not link to the individual rules for either Justice. Their rules can be found elsewhere on the NYCOURTS.GOV site, specifically here (Justice Knipel) and here (Justice Ash).

A couple of Justice Ash’s new rules are worth noting, particularly with respect to motion practice and pre-trial conferencing:

Motions. Justice Ash’s motion calendar, which is designated for Wednesday mornings, consists of two separate calendars – a “general motion calendar” and, to the delight of many practitioners, an “oral argument motion calendar,” which consists only of motions that have been fully briefed and submitted to the court in hard-copy format in advance of the calendar call. As a general rule, “Justice Ash will only hear arguments on motions that are on the oral argument motion calendar.” The bifurcated nature of Justice Ash’s motion calendar – particularly the oral argument motion calendar – presumably will facilitate rulings from the bench, which litigants interested in prosecuting and defending their commercial cases expeditiously no doubt will welcome.

Pre-trial Conferences. Justice Ash’s pre-trial conference calendar, which is designated for Thursday mornings, also is two-fold in nature. At the first pre-trial conference, the court will set a “firm trial date” – generally “three to five months out” – as well as a date for the second pre-trial conference. At the second pre-trial conference, parties must submit witness lists, exhibit books, motions in limine, and pre-trial memoranda, and their failure to do so “will result in an adjournment of the second pre-trial conference as well as the trial.”

Speaking of updates and resources, the webpage for New York’s electronic filing system (NYSCEF), also frequently hyperlinked on this blog, recently was updated to include the following resources:

  • Forms for general use in the Supreme Court, Appellate Division, Court of Claims, and Surrogate’s Court, and for specific use in particular counties;
  • A PDF Checker allowing practitioners to validate acceptable documents for proper e-filing on the NYSCEF system;
  • A statewide list of Authorized Courts and counties for e-filing;
  • Links to Rules and Legislation concerning e-filing, including the Electronic Filing Rules for the Appellate Division, the Uniform Rules for the Trial Courts, and related Amendments and Administrative Orders; and
  • Links to News & Events concerning new features and functions on the NYSCEF system, including production build notes for practitioners, clerks, and administrators alike.

 

In one of our very first posts on this blog – entitled “First Things First:  Check the Rules!” – we reported on some updates in March of this year to Manhattan Commercial Division Justice Eileen Bransten’s individual practice rules.  We took the opportunity then to remind Commercial Division practitioners, in light of the frequency with which Commercial Division judges update their individual rules, to make a point of regularly checking the rules of those judges to whom their cases have been assigned.

Justice Bransten rules

Case in point:  Justice Bransten recently updated her practice rules for the second time this year.

Subscribers to CourtAlert, a New York case-tracking service, may recall receiving an email alert in early November, notifying practitioners that Justice Bransten had updated her practice rules as of October 27, 2017, and recommending that practitioners working on cases assigned to Part 3 download her newly-updated rules and forward them on to all other attorneys working on such cases.  A handy comparison with Justice Bransten’s prior rules highlights the following updates:

  • Status Conference Order Form:  In addition to providing Part 3 order forms for Preliminary and Compliance Conferences, Justice Bransten’s practice rules provide a New Model Status Conference Stipulation and Order form – which, as far as we can tell, is a first-of-its-kind in the Commercial Division.  The stated purpose of the form is “to assess the progress the parties have made and to determine what items are outstanding and what needs to be done to ensure that discovery is completed and the Note of Issue is filed in a timely fashion.”

The 33-page, comprehensive order form covers the waterfront, including but not limited to prior conferences and appearances; an updated description of the surviving claims and amounts demanded; general progress reports on document discovery and depositions, including any proposed new dates for completion; specific reports on electronic discovery and privilege logs; anticipated expert discovery, if any; and a status report on any progress toward settlement, including through the use of ADR.

Apropos to a number of recent posts on this blog, Justice Bransten’s new Status Conference order form makes specific reference to, and offers detailed descriptions of, virtually all the newer Commercial Division Rules that have been rolled out in recent years.

  •  Discovery Dispute Procedure:  In accordance with Commercial Division Rules 14 and 24, Justice Bransten prefers to resolve discovery disputes “through a court conference – not through motion practice.”  Her updated rules now provide for a dispute-resolution process that, in addition to requiring the moving party to submit a pre-conference position letter, permits “[t]he non-moving party to submit a rebuttal letter no later than 3 business days after the moving letter is filed.”  In addition to being e-filed on the NYSCEF system, all pre-conference letters must be submitted in hard copy before the Court will conduct the conference.
  • Motion Exhibits:  With respect to all motion submissions, Justice Bransten’s updated rules now specify that “Plaintiff shall use lettered exhibits [and] Defendant is to use numbered exhibits.”
  • Pre-Trial Submissions:  Finally, with respect to the parties’ pre-trial submissions, particularly the identification of witnesses, Justice Bransten’s updated rules make a point of clarifying that “[t]he Court need only be advised of witnesses each party will call as part of their case-in-chief [and] reserves the right to permit rebuttal witnesses upon application from the parties.”

**Nota Bene** – Once again, we would be remiss not to mention an upcoming Commercial Division-related event, particularly one concerning rule changes, sponsored by the Commercial & Federal Litigation Section of the New York State Bar Association.  On Thursday, January 18, 2018, the NYSBA will be sponsoring a webcast CLE entitled “Amendments to the Commercial Division Rules 2018:  A Renaissance in Commercial Litigation Practice.”  The CLE will cover recent rule changes concerning, among other areas, expert disclosure, limitations on depositions, non-party electronic discovery, and privilege logs.

Disclosure of Electronically Stored Information (“ESI”) has become a staple in commercial cases.  Of course, with the vast number of documents and ESI being reviewed and the increased complexity in the review process, the risk of inadvertent production of privileged information is at its highest.  The inadvertent production of privileged material often leads to lengthy, costly litigation, the consequences of which can be disastrous to litigants. 

While the most efficacious approach for addressing privilege waiver as a result of inadvertent disclosure would be an amendment to the CPLR, there’s no telling whether the Legislature will pass such an amendment, or when.  Accordingly, the subcommittee of the Commercial Division Advisory Council (the “Subcommittee”) has proposed an “interim measure” to address these concerns.  Specifically, the Subcommittee proposed a new amendment to Commercial Division Rule 11-g (which addresses confidentiality orders in the Commercial Division) to incorporate specific “privilege claw-back” language into the confidentiality order.  Parties employing the language would agree to:

  • Implement and adhere to reasonable procedures to prevent the disclosure of privileged information;
  • Take reasonable steps to correct errors when protected information is inadvertently produced;
  • Return or destroy copies of inadvertently produced protected information upon request of the producing party;
  • Neither challenge the producing party’s document review procedure or its efforts to rectify the production error, nor claim that the return of the protected information has caused the receiving party to suffer prejudice.

This language is consistent with existing New York case law regarding inadvertent privilege waiver, which provides that the inadvertent production of documents does not constitute a waiver if: (i) the producing party had no intention of producing the document; (ii) the producing party took reasonable steps to ensure that the document was not disclosed; (iii) the producing party took prompt action to rectify the inadvertent production; and (iv) the party receiving the inadvertently produced document would not suffer prejudice by having to return the document.  See, e.g., AFA Protective Sys., Inc., v City of New York, 13 AD3d 564, 565 [2d Dept 2004].

The proposed amendment seeks to protect litigants from the inadvertent disclosure of protected information and reduce the number of disputes arising from inadvertent productions.  And, by incorporating language consistent with New York case law, the proposed amendment ensures that the parties take steps necessary under New York law to avoid an inadvertent waiver and take prompt action to rectify the inadvertent production if it occurs.

There’s a little over a month left to chime in on this important proposed amendment.  Persons wishing to comment on the proposal should e-mail their submissions to rulecomments@nycourts.gov or write to: John W. McConnell, Esq., Counsel, Office of Court Administration, 25 Beaver Street, 11th Floor, New York, New York 10004.  Comments must be received no later than January 16, 2018.

“The expert discovery rules are promulgated so no party will be ‘sandbagged’ or surprised by another expert’s opinion” – Manhattan Commercial Division Justice Eileen Bransten

Several weeks ago, we reviewed some of the newer Commercial Division Rules and reported on a couple of recent decisions from Justice Shirley Werner Korneich of the Manhattan Commercial Division applying one of those Rules, Rule 11-c, concerning nonparty electronic discovery.  We follow up this week as promised with a look at another recent new-rule application from the same court.

Earlier this year, Justice Eileen Bransten, whose similarly-insightful decisions also are regular fodder for this blog, addressed issues concerning expert disclosure under Commercial Division Rule 13(c) in Singh v PGA Tour, Inc.Sandbagger

In Singh, the plaintiff, a professional golfer and member of the defendant PGA Tour, sued the Tour alleging that he had been humiliated by an arbitrary administration of the Tour’s anti-doping program and that the Tour wrongfully withheld his prize monies.  Singh had used a product called “deer antler spray” between seasons to address knee and back problems.  Sports Illustrated later posted an article about the spray on its website, referencing Singh’s use and suggesting that he had used it in violation of the Tour’s drug policy.  Singh responded by providing the Tour with a bottle of the spray for testing.  The initial results were negative for steroids but positive for a separate prohibited substance called “IGF-1.”  The Tour suspended Singh and held his 2013 prize money in escrow.  Singh challenged the Tour’s determination in arbitration.

The World Anti-Doping Agency, from which the Tour adopted its list of prohibited substances, subsequently determined that deer-antler spray was not a prohibited substance.  As a result, the Tour dropped its disciplinary action against Singh, and the arbitration was discontinued on the eve of the hearing.  Singh then sued the Tour in the Manhattan Commercial Division.

In the course of expert discovery in the Supreme Court action, Singh submitted a second, expert “reply report,” which the Tour challenged under Commercial Division Rule 13(c) as “impermissibly including new opinions which were not included in the first report.”  Specifically, Singh’s expert reply contained certain newly-obtained “consumer data” leading Singh to conclude that the “Tour suspension reduced the favorable criteria that marketing executives would use in their decision-making process in evaluating Singh’s viability as a spokesperson/endorser/advocate.”

Rule 13(c) mandates that an expert report contain, among other things, “a complete statement of all opinions the witness will express and the basis and the reasons for them,” as well as “the data or other information considered by the witness in forming the opinion(s).”  Quoting from The Chief Judge’s Task Force on Commercial Litigation in the 21st Century, Justice Bransten noted in her decision that “this rule was promulgated in an effort to harmonize the disclosure rules of our state and federal courts,” and that the Commercial Division looks to the Federal Rules of Civil Procedure “for guidance on expert disclosure issues.”  Federal Rule 26(a)(2)(B) mandates that an expert report contain the same statement, data, and information cited above, and Federal Rule 37(c)(1) provides that if a party fails to do so, “the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at trial.”

Justice Bransten granted the Tour’s motion to strike Singh’s expert reply, finding that “the new analysis, information, opinion and data contained within Plaintiff’s Reply Expert Report violates Commercial Division Rule 13(c) and FRCP 26.”  Noting the “egregiousness of the belated disclosure,” Justice Bransten cautioned Commercial Division practitioners that Rule 13(c) does not provide for “an opportunity for a party to ‘correct’ the deficiencies and omissions made in an initial expert report — including addition of new data and opinions, particularly when that data was available to the expert at the time the initial report was issued” or for an expert “to say what he neglected to say in his opening report.”

The rules of golf prohibit a player from “sandbagging” or deceiving others about their knowledge, intentions, and abilities.  As Justice Bransten’s recent decision in Singh v PGA Tour, Inc. makes clear, the same goes for the Commercial Division Rules regarding expert disclosure.

**Nota Bene** – Readers interested in hearing from Commercial Division Justices directly on lessons to be drawn from the implementation of some of these new rules and rule-changes should register for the upcoming Bench & Bar Forum sponsored by the NYSBA Commercial & Federal Litigation Section.  The program, entitled “True Innovation and Efficiency: New York County Commercial Division Justices Discuss the Success of the New Commercial Division Rules,” is scheduled for the evening of November 27th at Foley & Lardner LLP.

Two recent amendments to the Commercial Division Rules, designed to encourage alternative dispute resolution, will go into effect on January 1, 2018.ADR

The amendment to Rule 10 requires counsel to certify that they have discussed with their clients the availability of alternative dispute resolution options in their case. Specifically, counsel will be required to submit a statement at the preliminary conference, and at each subsequent compliance or status conference, certifying that counsel has discussed the availability of ADR with the client and stating whether the client is “presently willing to pursue mediation at some point in the litigation.”

If the parties indicate their willingness to mediate, the Rule 11 amendment will require counsel to jointly propose in the preliminary conference order a date by which the mediator shall be selected.

The new amendments ensure that the option to pursue mediation is communicated to parties at a relatively early stage in the case, before substantial legal fees are incurred in discovery and motion practice, and before parties become too steadfast in their respective positions. Moreover, by requiring counsel to discuss with their clients the possibility of ADR, the amendments provide a mechanism by which counsel can candidly discuss with their clients the “pros and cons” of ADR in a way that does not signal weakness or lack of confidence in their position.

The amendments to Rules 10 and 11 are in line with federal court local rules which similarly require counsel to discuss the possibility of ADR with their clients and adversaries (see e.g. S.D.N.Y. Local Rule 83.9(d) [“In all cases . . . each party shall consider the use mediation . . . and shall report” to court]; W.D.N.Y. Local Rule 16(b)(3)(B).

The new amendments do not in any way alter Rule 3 of the Commercial Division Rules, which permits the court to direct, or counsel to seek, the appointment of a mediator at any stage of the action.

 

As we have come to expect, the Commercial Division Advisory Council periodically makes recommendations to amend and/or supplement the Rules of the Commercial Division, many of which are eventually adopted following a solicitation process for public comment by the Office of Court Administration.

In 2015, as a host of new Commercial Division rules and amendments were being rolled out, the NYSBA Commercial and Federal Litigation Section sponsored several panels throughout the metro-area to discuss the impact of the new rules on the various county bar associations.  At the time, Commercial Division practitioners and judges alike were still figuring out how and under what circumstances the new rules – concerning, among other things, interrogatory limitations, categorical privilege logs, nonparty electronic discovery, and expert disclosure – would be applied in their cases.  It’s been a couple years, so let’s take a look at some recent decisions to see how some of these rules are being applied.

Manhattan Commercial Division Justice Shirley Werner Kornreich, whose thoughtful decisions are no strangers to this blog, has at least twice this year addressed Commercial Division Rule 11-c concerning nonparty electronic discovery.  Under Rule 11-c and the corresponding guidelines found in Appendix A to the Rules of the Commercial Division, “[t]he requesting party shall defray the nonparty’s reasonable production expenses” – including, for example, “fees charged by outside counsel and e-discovery consultants” and “costs incurred in connection with the identification, preservation, collection, processing, hosting, use of advanced analytical software applications and other technologies, review for relevance and privilege, preparation of a privilege log . . . , and production.”

Recently, in Gottwald v Sebert, Justice Kornreich addressed Rule 11-c in the context of a motion to compel production of documents by a nonparty public-relations firm hired by pop star, “Kesha” Sebert, in connection with her allegations of sexual assault, battery, and harassment against her former manager and producer, “Dr. Luke” Gottwald.  Justice Kornreich granted Dr. Luke’s motion, assessing any burden on the PR firm as “minimal,” given that “hit count caps can be used to keep costs reasonable”; that hit counts for the limited time period in which the firm was involved “should be minimal or nonexistent”; and that Dr. Luke “must reimburse [the firm] for the reasonable costs of . . . review[ing] documents for responsiveness to the subpoena, and log[ging] those that are purportedly privileged.”

Earlier this year, in Bank of NY v WMC Mtge., LLC, Justice Kornreich addressed Rule 11-c in the context of motions to quash nonparty subpoenas in a RMBS put-back case.  In denying the motions, Justice Kornreich similarly assessed the burden on the nonparties as “relatively minimal,” given that the defendant serving the subpoenas “will have to defray the [nonparties’] reasonable document collection, review, and production costs, including certain legal fees.”

Justice Kornreich also addressed Rule 11-b (b) concerning the “categorical” versus “document-by-document” approach to logging of privileged materials in Bank of N.Y. Mellon.  Under Rule 11-b (b) (1), specifically, the Commercial Division had expressed a “preference . . . for the parties to use categorical designations, where appropriate, to reduce the time and costs associated with preparing privilege logs.”  Referencing the parties’ prior meet-and-confer on the subject, Justice Kornreich ruled that “a categorical privilege log, in the first instance, will be employed for the sake of cost efficiency,” and that once the defendant serving the subpoenas “is made aware of the hit count totals associated with the [nonparties’] privilege designations,” it may then “elect . . . to pursue such purportedly privileged documents in light of the legal fees necessary to do so.”

Be sure to check back in a few weeks when we take a look at a couple more recent decisions applying some of these newer Commercial Division rules.  In the meantime, Commercial Division practitioners, particularly those on the receiving end of a nonparty subpoena seeking ESI, should be mindful that the rules defraying the costs of e-discovery appear to have minimized the effect of the commonly-asserted “unduly burdensome” objection.

Visitors to this blog may recall our recent posts (here and here) concerning the individual practice rules of Manhattan Commercial Division Justice Bransten and Queens County Commercial Division Justices Gray and Livote.  “Check the rules!”, was the cautionary theme of those posts.

But just how much of a stickler for compliance can one expect a judge to be with respect to the part’s individual rules?  And is there any precedent for enforcement – perhaps even some case law that can be cited by a party affected by a non-compliance?

More and more, counsel are being reminded of the importance of following the rules in the Commercial Division.  In at least two decisions this year, Manhattan Commercial Division Justice Shirley Werner Kornreich gave such reminders to the bar when she admonished the parties for violating her part rules in the context of summary judgment motions.

With respect to motion papers filed in her court, particularly motions for summary judgment, Justice Kornreich’s “Practices in Part 54” clearly require, among other things, that:

·       “all e-filed documents must be OCR Text Searchable PDFs”;

·       all memoranda of law must include “cover pages, tables of contents, and tables of authorities, all three of which are mandatory”;

·       “the parties shall . . . prepare and file one joint Rule 19-a statement of material facts at least three weeks before the summary judgment motion is filed” and that “[i]f the parties cannot agree on a joint statement, no Rule 19-a statement of facts may be filed”; and that

·       “[i]f summary judgment briefs cite to deposition testimony, a complete copy of that deposition transcript must be filed.”

Simple enough, right?  Maybe not.

In Lau v Lazar, which involved cross-motions for summary judgment concerning the ownership and operation of an outpatient surgical center, Justice Kornreich reprimanded the parties for “substantially delay[ing] the court in resolving the instant motions” due to their filing of lengthy briefs that “lack[ed] tables of contents and authorities, that [we]re not text-searchable, and that contain[ed] almost no case law in violation of this part’s rules.”  Justice Kornreich also scolded the parties for “submit[ting] fact statements without citations to the record, forcing the court to piece together the factual background from the parties’ exhibits, which . . . did not include complete deposition transcripts.”

In Arizona Premium Fin. Co., Inc. v American Tr. Ins. Co., which involved cross-motions for summary judgment concerning the return of unearned insurance premiums, Justice Kornreich threw out altogether the defendant’s “proposed statement of material facts, which was submitted in violation of this part’s rules,” because the parties otherwise “were unable to agree on a joint statement of undisputed facts.”

You are remembered for the rules you break“, remarked Gen. Douglas MacArthur.  In the Commercial Division, however, you don’t want to be remembered as the one who broke the rules.  Justice Kornreich’s recent Lau and Arizona Premium decisions serve as another, a best-practices reminder for the Commercial Division practitioner to first “check the rules”, then follow them!

If you have ever looked at a contract’s New York choice-of-law provision or a status conference stipulation and thought to yourself, “Who wrote this darned thing?” then now is your chance to weigh in. The Commercial Division Advisory Council has recommended two new forms—a model choice-of-law provision and a model status conference stipulation and order form—and the Office of Court Administration is soliciting public comments. Comments should be emailed to rulecomments@nycourts.gov by August 25, 2017.

Standard New York Choice-of-Law Provision

The proposed sample choice-of-law provision, which would be appended to the Rules of the Commercial Division, is as follows:

THIS AGREEMENT AND ITS ENFORCEMENT, AND ANY CONTROVERSY ARISING OUT OF OR RELATING TO THE MAKING OR PERFORMANCE OF THIS AGREEMENT, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO NEW YORK’S PRINCIPLES OF CONFLICTS OF LAW.

The gentle reader must forgive the ALL-CAPS format of the original proposed text (presumably this provision was intended to be read loudly in a New York accent). This proposed uniform provision is intended to (1) assist drafters who wish to choose New York law to govern disputes; (2) reduce litigation over choice-of-law issues; and (3) showcase New York’s “predictable and sensible commercial law” and thereby increase commercial litigation in New York courts. Whether increased commercial litigation in New York’s courts is a desirable goal may be open to debate, but few would object that litigation over sloppily-drafted choice-of-law provisions should be eradicated to the extent possible.

Model Status Conference Stipulation and Order

The Advisory Council has also recommended the adoption of a revised model status conference stipulation and order for use in the Commercial Division. This revised form, which can be viewed here, was designed to incorporate changes in Commercial Division rules and practice since the form was last revised in October 2015. The proposed form has a new section on expert discovery, contains reminders on the finality of discovery deadlines and the availability of alternative dispute resolution, and allows for greater specificity regarding discovery topics. As a model form it is not mandatory, but insofar as it is used as a guide by judges it provides a comprehensive overview of the discovery topics that a court would need to address.

Several weeks ago, we reported on some recent updates to Manhattan Commercial Division Justice Bransten’s individual practice rules. New York commercial litigators should take note of some recent changes in the Queens County Commercial Division as well.

According to an official announcement from the Queens County Commercial Division, as of April 3, 2017, all Commercial Division motions made before Justices Marguerite A. Grays or Leonard Livote must be made returnable directly before either judge in their respective Commercial Division Parts and on their respective motion days (as opposed to the Queens County’s Centralized Motion Part or “CMP”), with the corresponding Notices of Motion or Proposed Orders to Show Cause bearing the words “COMMERCIAL DIVISION” in boldfaced type.

Justice Grays’s individual practice rules and Justice Livote’s individual practice rules, particularly with respect to Commercial Division motions made before them (again, as opposed to the CMP), are virtually identical. Some specifics worth noting:

• Both judges designate Tuesdays as their motion day, first call at 10:00 a.m.;

• Both judges emphasize the above-referenced “COMMERCIAL DIVISION” marking requirement, cautioning that non-compliance “may result in the motion being calendared in the CMP”;

• Both judges require that all moving papers be filed in hard copy in the Motion Support Office “at least five business days prior to the scheduled return date.” All answering papers, cross-motions, and replies, on the other hand, “will be accepted only on the return date in the Part”;

• Both judges require in-person appearances by counsel or pro se litigants on the return date of all disclosure motions and Orders to Show Cause, cautioning that such “papers will not be accepted from a calendar service”; and

• Both judges require that all applications for adjournment be made in person on the return date. Again, “calendar service or non-attorneys will not be permitted to make applications for adjournments.”

These are welcome distinctions for litigants interested in prosecuting and/or defending their commercial cases expeditiously. Before April 3, 2017, a commercial litigator wishing to make a motion in the Queens County Commercial Division was left to navigate the many and specific procedures of the CMP where motions are seemingly ever subject to the prospect of being “administratively rescheduled,” “marked off,” outright “discarded,” or otherwise delayed because of some other emboldened, highlighted, and/or underscored procedural particularity.