By: Lisa Solomon and Marshall R. Isaacs
As all litigators know, the New York State Unified Court System is, in practice, far from unified. Administrative procedures (such as how to submit an order to show cause) vary—sometimes wildly—from county to county. As if that weren’t enough, many judges also have their own “Part Rules.” One would think litigators across the state could take solace in the fact that New York State’s Civil Practice Law and Rules (CPLR) provides a framework for lawsuits to play out the same in Richmond County as they do up in Clinton County. Unfortunately, that’s simply not the case. For reasons not fully known, various counties have seceded, in part, from the CPLR-nation. And it seems that the ranks of dissenters are growing. Kings County has long turned a blind eye to one of the CPLR's provisions. More recently, Westchester has implemented procedures that deprive litigants of rights provided for in the CPLR.
Kings County: Note to Self!
CPLR §3216 provides that the Court may dismiss an action where a plaintiff unreasonably fails to file a note of issue. However, dismissal is permitted only after the Court has first served a written demand by registered or certified mail requiring the defaulting party to file within ninety days. CPLR 3126(b)(3).
Kings County does not subscribe to subsection (b)(3). Instead, Kings provides for a “NINA” date (Note of Issue/No Appearance necessary). If the plaintiff inadvertently fails to file a note of issue on or before the NINA date, the case is summarily dismissed. Don’t believe me? See for yourself: http://www.nycourts.gov/courts/2jd/kings/civil/motiontrialsupport_faqs.shtml#8.
Westchester Supreme: No Reply at All
Under the Westchester County Compliance Part Rules that went into effect in September 2009, a party wishing to make a discovery-related motion must request a pre-motion conference to, “permit the Court the opportunity to resolve issues before motion practice ensues.” So far, so good. If the issue is not resolved at the pre-motion conference and motion practice is necessary, “a briefing schedule will be established by the court attorney-referee(s).” Still sounds fine.
But wait. If the discovery dispute is not resolved at a pre-motion conference, the court attorney whips out a form scheduling order. The form—which provides for a motion to be brought on by order to show cause—contains blank spaces in which the deadlines for the service of motion and opposition papers are entered. The form then explicitly states that “[n]o reply papers shall be accepted.”
CPLR 2214(b) gives every movant the right to serve a reply. The form scheduling order used in the Westchester Compliance Part deprives movants of that right.
What to do?
Of course, a movant's attorney might challenge the court attorney and insist on the right to bring a discovery motion on notice rather than by order to show cause; or, the lawyer might insist on the right to submit a reply even if the motion is brought on by order to show cause. But how likely is that scenario? What lawyer worth her salt wants to upset the court attorney she deals with on a daily basis? And what if the court attorney refuses to allow a reply? What attorney in his right mind would bring the administrative judge up on mandamus?
It's not surprising that Westchester doesn't provide for submission of reply papers and that Kings snubs the certified mail requirement of 3216: it's less work for them that way. But the salutary goal of paper-reduction doesn’t justify depriving litigants of the legislatively-mandated rights provided by the CPLR.
The Appellate Division Won't Stand for These Procedures; Will the Organized Bar Stand Up for its Members?
The appellate courts have already had occasion to spank Supreme Court judges for implementing procedures that conflict with the CPLR. See Richard's Home Center & Lumber, Inc. v. Kownacki, 247 A.D.2d 371, 668 N.Y.S.2d 906, 372, 907 (2d Dep't 1998) (Supreme Court improperly limited defendants to filing summary judgment motion only after court certified discovery was complete); Hochberg v. Davis, 171 A.D.2d 192, 575 N.Y.S.2d 311 (1st Dep't 1992) (directing Supreme Court justice to rescind his part rule requiring judicial consent before the filing of a written motion); Goldheart Int’l, Inc. v. Vulcan Constr. Corp., 124 A.D.2d 507, 509, 508 N.Y.S.2d 182, 183 (1st Dep’t 1986) (mem.) (Supreme Court has no authority to refuse to entertain a motion) Grisi v. Shainswit, 119 A.D.2d 418, 422, 507 N.Y.S.2d 155, 158-9 (1st Dep't 1986) (per curiam) (A party cannot be deprived of his right to make a written motion or a record.)
How long do we idly sit by as our CPLR is gradually dismantled? A handful of brave lawyers may be willing to challenge overreaching courts. Wouldn't it be better, though, if bar associations—on the state and/or county level—raised these issues on behalf of their members?
Lisa Solomon was one of the first lawyers to recognize and take advantage of the technological advances that make outsourcing legal research and writing services practical and profitable for law firms of all sizes. Through Lisa Solomon, Esq. Legal Research & Writing, she assists attorneys with all their legal research and writing needs, including preparing and arguing appeals and drafting substantive motions and trial memoranda. Through Legal Research & Writing Pro, she shows other lawyers how to start and run successful practices as contract (freelance) attorneys and teaches lawyers in all practice areas how to write more persuasive briefs.