Over the past year or so, we have made a point of highlighting in the “Check the Rules” series on this blog periodic updates to the individual practice rules of certain Commercial Division Justices, including Justice Eileen Bransten in New York County (twice, in fact), Justices Marguerite A. Grays and Leonard Livote in Queens County, and Justice Sylvia G. Ash in Kings County.

Continuing with this theme of local-rule vigilance, Commercial Division practitioners should take note some recent changes to the individual practice rules of Manhattan Commercial Division Justice O. Peter Sherwood.

Justice Sherwood’s Practices for Part 49, which were revised as of this month, provide some notable additions (and omissions) from his prior rules, which dated back to May 2014 before most of the Commercial Division Advisory Council’s new-rule proposals and amendments were adopted and implemented.

Be Prepared, Be Authorized. Justice Sherwood opens his practice rules with an express and emphatic reminder to attorneys practicing in his Part of the requirements under Rule 1 of the Commercial Division Rules that “counsel . . . must be fully familiar with the case . . . and fully authorized to enter into agreements, both substantive and procedural, on behalf of their clients.” In other words, appearing in Part 49 is no “cattle-call.” Attorneys should have factual command of their cases, as well as the requisite authority to bind their clients.

Separate and Describe Your Exhibits. Justice Sherwood now requires attorneys practicing in his Part who wish to annex exhibits to their correspondence or motion papers to separately e-file their exhibits and designate them with a “descriptive title.” In other words, a simple designation of “Exhibit A” won’t cut it. Attorneys must provide a description (e.g. “Operating Agreement, dated as of September 20, 2018”) so that adversaries and court personnel viewing the docket or other notice of filing can immediately understand what has been filed.

Get Advance Permission to Adjourn Appearances. Justice Sherwood now requires that requests for adjournment be submitted a full two business days in advance of the scheduled appearance. Justice Sherwood conferences his cases on Tuesdays, so that means attorneys must get their requests for adjournment in by no later than Thursday of the prior week.

Check Your E-Mail. Justice Sherwood’s new rules provide that the court may choose to communicate with counsel via e-mail “regarding scheduling matters or to make certain inquiries.” Note, however, that this line of communication only goes one way. It does not mean that attorneys practicing in Part 49 may “initiate communication with the court via email” or “use e-mail to make arguments.”

Complete Party Discovery Before Bothering Non-Parties. Justice Sherwood “strongly encourages” attorneys practicing in his Part to “attempt to confine their requests to parties to the action and resort to third-party disclosure only when it reasonably appears that the information being sought is otherwise unavailable.” Justice Sherwood also requires that all non-party subpoenas be “simultaneously served” on all parties, and that all documents and information produced in response be exchanged among all parties within five days of receipt.

Follow Instructions When Seeking to File Under Seal. Justice Sherwood’s updated practice rules provide specific instructions concerning the filing of documents under seal:

  • Applications to file under seal must be made by Order to Show Cause, which must be preceded by a meet-and-confer regarding the documents proposed for seal.
  • Motions will be considered in light of the limitations imposed under applicable case law, and the movant must propose redactions “as opposed to wholesale sealing.”
  • Any document proposed for seal must be filed in its original, un-redacted form as an exhibit, with the proposed redacted version filed “as a subset of that exhibit.”
  • All motions must be accompanied by a joint index of the documents proposed for seal, including the basis for sealing and any objection thereto.

Finally, as for notable omissions, Justice Sherwood appears to have dispensed with his former requirement – which, as far as I’m aware, was entirely unique to his Part – that  motion submissions also be provided to the court “in .rtf format on a computer disk.”

**Nota Bene** – Attention Kings County Commercial Division practitioners: How much is your case worth? The general practice rules for the Kings County Commercial Division also were updated this month to double the monetary threshold from $75,000 to $150,000.

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You’re a commercial litigator in New York. You’ve just been brought in on a case pending in the Commercial Division before a particular Commercial Division judge.  Or maybe you’ve just received an administrative bounce to a Commercial Division RJI Addendum, assigning your case to a particular Commercial Division judge sitting in the county where you recently filed motion papers or requested a preliminary conference. What’s the first thing you do?  You check the rules, of course.

Obviously, that begins with familiarizing (or re-familiarizing as the case may be) yourself with the Commercial Division Rules – particularly Rules 7 through 24, which supersede the Uniform Civil Rules with respect to conferencing your case and engaging in motion practice.

Know the Rules

But you also should look to see whether the particular Commercial Division judge assigned to your case has individual practice rules – which rules, in turn, often supersede or otherwise modify the Commercial Division Rules. Those Commercial Division judges that have individual practice rules update their rules with some regularity, so you also should make a point of checking them periodically.

As a recent example, Manhattan Commercial Division Justice Eileen Bransten, whose practice rules begin with the general principle of application noted above – namely, that “the Commercial [Division] Rules govern all cases before Justice Bransten unless modified or changed below” – updated her rules in March of this year. Some of the more notable updates to Justice Bransten’s “Practices in Part 3” are as follows:

  • Correspondence with the Court:       All letters to Justice Bransten, including pre-motion conference letters under Commercial Division Rule 24, in addition to being e-filed on the NYSCEF system, must be “hand delivered” to her Part Clerk and must conform to the font requirements of “Times New Roman, Size 12.”
  • Court conferences: Justice Bransten’s updated practice rules link to forms for the New Revised Preliminary Conference Stipulation and Order, as well as the New Compliance Conference Stipulation and Order, both of which are required for conferences held in Part 3.
  • Filing under seal: Justice Bransten’s updated practice rules provide for extensive direction concerning the filing of documents under seal:
    • Applications to file under seal must be made by Order to Show Cause;
    • Parties must meet and confer regarding the documents proposed for sealing before making a motion to file under seal;
    • Motions to file under seal will be considered in light of the limitations imposed on sealing as dictated by recent case law; moving parties must propose document redactions “as opposed to the wholesaling sealing of documents”;
    • Any document proposed for sealing must be filed in its original, un-redacted form as an exhibit to the motion, with the proposed redacted version of the document filed “as a subset of that exhibit”;
    • All motions to file under seal must be accompanied by a jointly-created index of the documents proposed for sealing, to include the basis for the proposed sealing and any objection thereto.
  • Motion practice in general:
    • Justice Bransten requires a courtesy (hard) copy of all e-filed motion papers;
    • If a party wishes to submit a deposition/hearing transcript or an arbitration award as an exhibit to a motion, the document must be submitted in its entirety as opposed to excerpts;
    • When submitting a Statement of Material Facts under Commercial Division Rule 19-a in support of a motion for summary judgment, a party must provide specific “references to appropriate documentation” establishing that the facts are undisputed; the party opposing the motion must “first repeat the movant’s claimed undisputed facts followed by its response,” which also must provide “reference to appropriate documentation.”
    • Consistent with her prior rulings on the topic (see e.g. ZV NY, Inc. v Moskowitz 44 Misc 3d 1225[A] [Sup Ct, NY County 2014), attorney affirmations in which counsel present arguments of law – sometimes referred to as “memo-affs” or “brief-adavits” or “brief-irmations” – “will not be considered by the Court.”
  • Trial practice:
    • Justice Bransten will not give parties a trial date unless and until they have attempted some form of ADR, whether privately or through the Commercial Division’s ADR Program.
    • All pre-trial submissions (briefs, witness and exhibit lists, and motions in limine, etc.) must be “both e-filed and hand delivered to the Part in hard copy.”