Per Diem Attorney Blog

New York Supreme - Judge Kalish & Judge Kaplan Rules

Feb 20, 2019 4:16:00 PM / by ZR Per Diem

At the pre-trial conference, the court will distribute to each party a Pre-Trial Information Sheet and Stipulation and Order that require, inter alia, a statement of undisputed facts, prospective motions in limine, list of exhibits with exhibit designations, and estimate of trial days, which each party, severally or jointly, must complete and submit to the court within one week before the date set for   

Miscellaneous    There will be no ex parte communications with the court, except in accordance with OSCs seeking relief in accordance with Uniform Rule § 202.7(f).
 
HON. ROBERT D. KALISH
Part 29, IAS General Assignment Part, Room 104, 71 Thomas Street Phone: 646-386-4039, Fax: 212-618-5242;
Associate Law Clerk: Justin Mahony, Esq.,
Assistant Law Clerk: Joshua Demopoulos, Esq.
Courtroom Part Clerk: Lohoma Shipman
 
Conferences and Oral Argument are usually on Tuesdays at 9:15 a.m. and 2:15 p.m. in the Trial & Motion Courtroom.
 
Preliminary and Compliance Conferences  
All preliminary conferences and compliance conferences commence at 9:15 a.m. Parties will appear on time and be prepared to conference with the Court.  

Parties shall sign in with the court officer. Cases will be heard in the order of appearance of all parties to an action.  

Parties must appear for all conferences with copies of all prior orders, including preliminary and compliance conference orders issued in the underlying action.  

Parties attending the conference are expected to be familiar with the underlying case and have the authority to discuss and resolve all discovery issues. Any attorney appearing on behalf of a party at a preliminary or compliance conference must be fully prepared to discuss the details of the underlying action and have a working knowledge of any materials issues. This includes “per diems” attorneys and junior associates. Attorneys must be able to provide information about any pending appeals, prior motion practice, outstanding motions and motions that they intend to file within the immediate future.  

Parties shall prepare the relevant preliminary conference and compliance conference forms priorto conferencing with Justice Kalish or his court attorney. Preprinted forms are available in the courtroom. Parties will submit their completed preliminary conference and compliance conference forms to the court officer to be reviewed by the Court. Scheduled EBTs may NOT be adjourned without prior Court approval.  
Do not leave the courtroom until either Justice Kalish or his court attorney have reviewed your completed orders and Justice Kalish has signed the order or stipulation.  

Unless otherwise scheduled by the Court, a party that fails to appear before the Court for a morning preliminary or compliance conference by 11:00 a.m., or, in the case of afternoon compliance conferences, by 3:30 p.m., may have a default judgment (22 NYCRR 202.27) entered against them or have their case dismissed based upon their failure to appear for the conference.  

Any requests for adjournments of preliminary conferences or compliance conferences must be made at least two business days prior to the scheduled conference date. Said request can be made by calling the part clerk directly followed by e-filing and then faxing a written stipulation by the parties to the part clerk for approval by the Court. The Court will not consider any requests for an adjournment made fewer than two business days prior to the appearance date absent an emergency and a written stipulation by all parties consenting to the adjournment. All requests for adjournments must be approved in advance. Without prior approval, a stipulation will not be accepted regardless of the parties’ consent and any failure to appear may result in a default. Failure to complete so-ordered discovery may result in penalties.  

Motion Practice - Oral Argument on Tuesdays at 2:15 p.m.

Notification is done via E-TRACK (see III [D] below).  

A. For all motions pending in the Submissions Part (60 Centre Street Room 130), the Parties will follow that Part’s rules regarding
Adjournments, scheduling, and withdrawals.
 
With the exception of non-e-filed cases that were originally submitted before other Justices, Part 29 is an e-filing part and requires that working copies be filed at the Motion Submissions Part. Do not send courtesy copies to chambers unless directed to do so. Any questions regarding the e-filing system should be addressed to the E-Filing Office at 646-386-3033 or atnewyorkef@nycourts.gov.

All e-filed papers shall be entered into the e-filing system in PDF format, and it is encouraged that searchable text be included. All exhibits to e-filed papers shall be e-filed separately as exhibits and appropriately identified. (Parties will not e-file exhibits as part of other e-filed papers themselves.) If a party fails to e-file their papers in accordance with the above stated rules, the Court may require that the party re-e-file their papers at the party's expense.

C.  The Court requires “working copies” of all motion papers. The parties must submit working copies of all their papers to the Submissions Part. No additional courtesy copies are required.
 
Motion papers shall be clearly labeled as Notices of Motion, Affidavits in Support, Affirmations in Support, Memoranda of Law and Exhibits. The same goes for Opposition Papers and Reply Papers. Motion papers shall consist of Moving Papers, Opposition Papers, Reply Papers and the attached affidavits, affirmations, exhibits and memorandums of law. The Parties shall not submit any sur-replies or additional papers unless the Court has granted express permission to do so. The first page of all motion papers, including notice of motion, opposition, reply, exhibits, affirmations, memoranda of law, etc., must reflect the respective motion sequence number and index number in the upper right-hand corner.

The Parties’ submitted papers shall be written in double-spaced, 12 pt. Times New Roman font with one-inch margins.

All submitted documents including Affirmations and Memoranda of Law shall be at most 15 pages in length unless the Court grants permission otherwise, prior to submission, Parties may not “shift” this page limit to exceed 15 pages on a submitted document (i.e., submitting a 10-page affirmation in support does not permit the submission of a 20-page memorandum of law). Affirmations and memoranda must have page numbers at the bottom of each page. Every motion must have its own full set of motion papers specific to the motion. Parties may not submit omnibus motion papers do not submit papers intended to be applicable to multiple motions. E-filed motions are strongly encouraged to contain hyperlinked case citations, bookmarks, and searchable text. All substantive legal arguments including references to statutes and case law shall be made in Memorandums of Law, Only, which shall be submitted and e-filed separately from any Affirmations or Affidavits.

Legal arguments are not to be included in Affirmations. Do not cite cases in affirmations. Instead, separately file a memorandum of law. The working copies shall be delineated into separate items, unattached from each other, as follows: Affirmations; Memoranda of Law; Affidavits; Deposition Transcripts; and All other exhibits. Full deposition transcripts shall be submitted as part of the working copies as separate documents unattached to any Affirmations, Affidavits or Memorandums of Law. Parties are encouraged to submit transcripts in minu-script format where possible. All other exhibits shall be bound together, separated by protruding exhibit tabs.Deposition transcripts shall be labeled to indicate both their exhibit number/letter and to identify the deposed individual. Each deposition transcript shall be submitted as a separate exhibit. Any reference to deposition testimony must cite to the exact page and line numbers relied upon rather than merely attaching the entire transcript or “relevant portions.” The failure to follow this rule may result in the denial of the motion with leave to bring it again upon proper papers, but only so long as any deadlines have not already passed   that is, a filing deadline will not be extended. As with deposition transcripts, any reference to any other voluminous exhibit annexed to a motion must include pinpoint citations so that the exact location within the exhibit can be easily located. For example, a citations to physical therapy notes contained within an exhibit of medical records should be identified as “see physical therapy note dated xx/xx/xx exhibit B as page 9”. It should not just refer the court to the exhibit as a whole. If one party has attached a deposition transcript, do not submit an additional copy. All Notices of Motion, Affidavits in Support, Affirmations in Support, Memoranda of Law or similar papers shall be appropriately captioned so as to include: the parties, jurisdiction, venue, index number, and motion sequence number. In the event that a party is responding to multiple motion sequences, said party must submit working copies for each motion sequence number to which it is responding and note the motion sequence number on the working copy. Parties are encouraged to submit proposed orders and proposed judgments where doing so will prove helpful to the Court. If a motion has been filed, and it is subsequently resolved, the movant must immediately call the Court at (646) 386-4039. The movant shall subsequently e-file and fax (with confirmation of e-filing) a stipulation withdrawing the motion.  
All applications for admission pro hac vice shall be made by motion. The motion shall include an affidavit of support from a member of the Bar of the State of New York, an affidavit from the applicant, and a recent certificate of good standing from the applicant. The affidavit of the applicant must advise the Court as to the total number of times the applicant has applied to be admitted in New York pro hac vice and how many times the application has been granted and/or denied. The affidavit must also advise the Court whether the pro hac vice applicant has ever been or is presently the subject of a disciplinary proceeding. If the motion for pro hac vice is unopposed, moving counsel shall so advise the Court by facsimile to expedite review of the motion. Moving counsel may also submit a stipulation stating that opposing counsel does not specifically oppose the motion for admission pro hac vice to expedite review of the motion.  

Orders to Show Cause: Any questions regarding the procedure for e-filing proposed orders to show cause should be directed to the Ex Parte Office at 646-386-3125. All parties must submit hard copies of motion papers filed with an order to show cause to the Part Clerk in the courtroom, Room 104. All parties must schedule a date and time to appear before the Court and movant shall state to the Court why the Order to Show Cause should be signed. Any party seeking immediate injunctive relief within an Order to Show Cause (i.e. TRO) must appear with the affected adversary or proof that the adversary was notified but declined to appear when the application is presented for signature. Orders to Show Cause will be returnable in the Part. Responsive papers to orders to show cause must be delivered to the courtroom at least 3 business days prior to the return date unless the Court indicates otherwise. Absent an emergency, orders to show cause may not be adjourned.  

Motions to Renew/Reargue: All motions to renew or reargue must contain all papers submitted on the original motion and a copy of the Court’s decision.  

Discovery motions are strongly discouraged. If a discovery dispute arises which cannot be resolved by diligent, good faith efforts, any party, in lieu of filing a motion, must request an expedited conference by submitting a letter stating the issue to the Part Clerk. Conferences requested on an expedited basis will be granted only at the Court’s discretion. Such request is to be e-filed on NYSCEF and then faxed to (212) 618-5242 (Attn: L. Shipman) with confirmation of e-filing. A party may not make a discovery motion without leave from the court. If a party has made a formal discovery motion, a conference will be scheduled for the same date as oral argument and will be conducted prior to counsel being heard on the motion.  

Summary Judgment Motions: All summary judgment motions must be filed within 60 days of the filing of the note of issue. Counsel affirmation in support must include the note of issue filing date. Motions for summary judgment prior to the completion of discovery are discouraged. Discovery must continue while any CPLR 3212 motion is pending unless otherwise ordered by the Court. Discovery is not stayed pending the determination of summary judgment motions or other motions unless specifically indicated by the Court.  

Communications with Chambers  

Unless otherwise directed by the Court, Parties will not copy the Court on letters exchanged between the Parties.  

 B.   For all case administration matters (e.g. scheduling), Parties shall first attempt to call the Courtroom Part Clerk at (646) 386-4039, before calling chambers at (646) 386-4015.
 
Parties wishing to schedule an in-court or telephone conference must do so by conference call, with all appearing parties, to the Part Clerk.  
If a motion has been withdrawn or the case has been settled or otherwise discontinued, please immediately notify the Part Clerk by phone and then e-file and fax a stipulation (with e-filing confirmation) executed by all affected parties.  

D.   Attorneys are strongly recommended to sign up for E-TRACK to follow their case. It is FREE and the case does not have to be an e-filed case to track it. Sign up by going tohttps://iapps.courts.state.ny.us.webcivil
 
Trials  

Upon the first appearance before this Court, the parties must furnish the following:  
 
A list of proposed witnesses, including the need for any interpreters with the required language and dialect; An estimate of required trial days; All marked pleadings and bills of particulars; All prior decisions in the case, including any appellate decisions; Any notices to admit; Copies of EBTs intended for use at trial for any purpose; If necessary, a trial memorandum, not to exceed five (5) pages, briefly setting forth the party’s position and the relevant factual and legal issues to be tried, citing relevant case law; and Two (2) business cards for each attorney. For jury trials: Proposed jury instructions. If the proposed instructions are taken verbatim from the Pattern Jury Instructions, PJI numbers will suffice. If a PJI instruction is not verbatim or requires characterization or description of the evidence or the parties contentions, or if the language is not based on the PJI, the exact requested language, together with the authority for it, must be submitted in .docx format tojddemopo@nycourts.gov and to opposing counsel simultaneously; Proposed jury verdict sheet must be submitted in .docx format to jddemopo@nycourts.gov and to opposing counsel simultaneously.  

Prior to the start of trial, the parties must furnish all in limine or other applications. All motions inlimine must be presented in writing to the Court as soon as practicable or as specifically scheduled at any pre-trial conference, with a copy to all parties. Any such motion or application must include citations to relevant authority.
 
All exhibits are to be pre-marked for identification prior to the commencement of trial by the court stenographer.  
It is the duty of counsel, not Court personnel, to ensure all subpoenaed documents have arrived in the subpoenaed records room at 60 Centre Street. Trial dates scheduled by the court are firm and may only be adjourned upon application based upon an emergency.  
Due to the courts conference days and motion days most jury trials, unless told otherwise, will not be conducted on Tuesdays.  
Appropriate cases shall be bifurcated for trial by the court (22 NYCRR 202.42).  

HON. DEBORAH A. KAPLAN
​Part 20, Matrimonial Part, Room 540, Courtroom Phone: 646-386-3300; Chambers Phone: 646-386- 5567; Fax: 212-401-9037
Principal Law Clerk:          Joan G. Levenson, Esq.   
Principal Court Analyst:   Michelle Furey
Assistant Law Clerk:          Deanna J. Lucci, Esq.
Administrative Aide:          Sarita Whitehead
Part Clerk:                            Ira Liffman
Rules (effective March 25, 2009):
 
GENERAL PART RULES
All court appearances are on a staggered schedule.
 
All adjournments require the prior approval of the court.
 
All adjournments due to the actual engagement of counsel shall be granted in accordance with Part 125 of the Rules of the Chief Administrator of the Courts. Affirmations must be faxed to the Court at least one (1) day prior to the court appearance.
 
All parties must be present for all appearances and conferences unless excused by the Court. Correspondence, whether by mail, e-mail or facsimile, between counsels is not to be copied to Chambers.
Pursuant to 22 N.Y.C.R.R. 202.16(d) a R.J.I. must be filed within the forty-five (45) days of the date of service of the summons unless an affidavit of no necessity is filed, in which event the R.J.I. must be filed within one hundred and twenty (120) days.
 
All papers submitted to Part 20 must include a fax number.
 
MOTIONS
Wednesday is designated as motion day.
 
Oral argument is required on all motions and orders to show cause, unless directed otherwise by the Court.
 
Counsel are required to file all responsive papers in Part 20. All exhibits are to be identified by tabs. Cross motions are to be filed with the Matrimonial Clerk’s Office Two (2) days prior to the return date.
 
Motions may not be adjourned on consent more than once without court approval. Counsel are directed to submit a written stipulation reflecting their consent which must include additional available dates.
 
Counsel are reminded that the CPLR does not provide for sur-reply papers or allow the presentation of papers or letters to the court after argument of a motion. Sur-replies, letters and the responses to such letters addressed to the substance of motions will not be considered.
 
Any allegations of fact submitted to the court, including allegations contained in an affidavit and/or the complaint, must be certified by counsel in the form prescribed by the Chief Administrative Judge.
 
ORDERS OF PROTECTION
Ex- parte requests for orders of protection must be accompanied by the Family Protection Registry Information Sheet and the litigant must be present. Motions to consolidate Family Court orders of protection actions must contain a complete copy of the Family Court file.
 
PRELIMINARY CONFERENCE
Preliminary Conferences will be held on Wednesdays and Thursdays, unless notified otherwise by the Court. The conference must be held within forty-five (45) days of the filing of an R.J.I. The party seeking judicial intervention is required to notify the opposing party of the Preliminary Conference date. There will be no adjournments of Preliminary Conferences without express permission from the court.
 
Counsel are reminded that pursuant to 22 N.Y.C.R.R. 202.16(f) (1) Net Worth affidavits are to be filed with the court ten (10) days’ prior to the conference date. They are to be accompanied by the attorneys’ retainer statements and the parties’ recent pay-stubs or W-2 statements.

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Tags: Court Ruling, General Knowledge

ZR Per Diem

Written by ZR Per Diem

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