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Conferences, Notes of Issue, Withdrawal


Concerning:  Procedures for Preliminary and Other Conferences  /  DCM Standards  /  Status Conferences  /  Changes to the Caption or Trial Status  /  Notes of Issue and the Trial Calendar  /  Withdrawal of Counsel / Subpoenaed Records  /  

A. CONFERENCES

1. Preliminary Conferences

Preliminary conferences sought by parties pursuant to Rule 202.12 of the Uniform Rules for the Trial Courts are scheduled upon filing with the General Clerk's Office (Room 119) of a request for a preliminary conference with proof of service.  If the case has not yet been assigned to a Justice, the party must also submit an original and one copy of an RJI (UCS 840, revised 2011) with proof of service and an RJI addendum if required; and proof of purchase of the index number for the main action, if applicable, and payment of filing fees for all third-party actions. If the filing party wishes to have the case assigned to the Commercial Division, the preliminary conference request and RJI, marked to reflect a Commercial assignment, must be filed with the Commercial Division Support Office (Room 119 A) and must be accompanied by a Commercial Division RJI Addendum in support of the requested assignment. (Uniform Rule 202.70 (d).  The conference is to be held within 45 days of filing the RJI. Uniform Rule 202.19. Likewise, if the case has been assigned to a Justice, the party must submit proof of payment of the filing fees for any third-party action (the County Clerk's computer will issue a receipt that can be used as such proof).

In an e-filed case, these documents shall be submitted by transmitting them to the New York State Courts Electronic Filing System.

For more information on the filing of the RJI, click here.

The preliminary conference shall take place at the Justice's regularly scheduled conference time, which can be found in the Uniform Rules of the Justices. To receive notice of the date and time scheduled for the preliminary conference, counsel should sign up for, and enter the case in, the court system's case tracking program, e-Track. To access e-Track, click here. This service, which is free of charge, will provide prompt e-mail notification not only of the scheduling of this conference, but of all other developments in the case that are recorded in the court's computer history program, the Civil Case Information System ("CCIS"). This service can accommodate, and will provide notification with regard to, all of an attorney's or firm's cases pending in this court.

The Supreme Court Records On-Line Library ("Scroll") on this website also contains information on future appearances in our court, as do various private attorneys' service and information programs.   

If counsel submit, prior to the scheduled conference date, a completed preliminary conference stipulation and order form, and the court finds no problems, counsel need not appear and the court will remove the case from the conference calendar and make an entry in the court computer or mark the calendar with the future appearance date stipulated in the form. Uniform Rule 202.12(b). Under the Differentiated Case Management ("DCM") system (Uniform Rule 202.19), all disclosure must be completed within eight, 12 or 15 months in expedited, standard and complex cases, respectively, with the time period running from the filing of the RJI. (Cases are assigned to a track upon the filing of the RJI.) Commercial and medical malpractice cases are treated by the court as complex matters. Matrimonial and tax certiorari cases are assigned to special tracks. Most other cases are assigned to the standard track. If the stipulation and order form is not submitted, the preliminary conference shall take place.

At a preliminary conference the court will, at the request of a party or on its own, confirm or modify the DCM track to which the case was assigned when the RJI was filed, and will establish a schedule within the DCM deadline for completion of pre-trial proceedings. The court will also address, to the extent appropriate, limitation of issues, addition of parties and settlement. Uniform Rule 202.12(c). Failure to comply with the terms of a preliminary conference order, and making frivolous motions, shall, in the discretion of the court, result in the imposition of costs or other sanctions on the offending party. Uniform Rule 202.12(f). Particular attention is drawn to deadlines for adding parties, completing all discovery and filing a note of issue, as these dates are important to efficient case management.   

The plaintiff must file a Notice of Medical, Dental or Podiatric Malpractice Action in cases of those types within 60 days of joinder of issue or after the time for a defaulting party to appear has expired. The Notice must be accompanied by an RJI if the case is unassigned. CPLR 3406; Rule 202.56(a). The proposed Notice and RJI must be submitted to the General Clerk's Office for approval (after which the RJI fee is paid in Room 160). The assigned Justice shall conduct a preliminary conference as soon as practicable after the filing of the Notice and shall schedule disclosure proceedings so as to expedite a final disposition of the matter. Rule 202.56(b).

The progress of cases in the court is governed by standards and goals, which exist both for pre-note and post-note periods. The standards and goals for DCM cases are eight, 12 or 15 months pre-note (i.e., these are the same as the periods provided by the DCM tracks pre-note), and 15 months post-note. However, Uniform Rule 202.19 requires that a pretrial conference be held within 180 days from filing of the note of issue, with trial to occur within eight weeks from the conference.

Although Uniform Rule 202.19 sets a standard and goal for the filing of a note of issue and the court's computer automatically calculates the standard and goal therefor in each case from RJI and in accordance with the DCM track of the case for the purposes of tracking standards and goals and compliance therewith in the court, the date for filing of the note of issue set by the assigned Justice in the preliminary conference order or in any other directive is the deadline to which the parties must adhere.  That deadline may be shorter than that fixed by standards and goals, or it may be longer if circumstances require.  See Section 202.19 (b).

2. Other Conferences

Compliance and pretrial conferences are fixed by the Justice either (i) in a discovery scheduling order issued at a preliminary conference or compliance conference or (ii) in a decision on a motion. Scheduling notices are not sent by the court for these conferences. Attorneys may obtain such notification by e-mail by entering their cases into the e-Track program.

3.  Status Conferences

Our court may, from time to time, schedule status conferences in the Part. With respect to the latter, the court, at the request of a Justice, will mail notices to the attorneys in each of the cases in an inventory that have been selected to undergo this procedure. These notices announce that counsel must appear on a given date pursuant to a directive of the presiding Justice. Failure to respond will result in appropriate judicial action (not, however, including a markoff pursuant to CPLR 3404; see Johnson v. Sam Minskoff & Sons, 287 A.D.2d 233, 735 N.Y.S. 2d 503 (lst Dept. 2001)( holding that CPLR 3404 does not apply to pre-note cases)). When counsel appear, the Justice will make whatever order is required to insure future progress in the case.

B. ORDERS AFFECTING THE CAPTION OR TRIAL STATUS

If a motion affecting the caption or the trial status of a case (e.g., a motion to correct a caption, to substitute a party, to amend, to strike a note of issue, or to obtain a preference) is granted, the prevailing attorney must serve a copy of the court’s order on both the County Clerk and the General Clerk's Office.  Because the court issues over 30,000 decisions on motions each year and many long form orders as well, neither the County Clerk nor the court's Clerks Offices can read all decisions/orders searching for judicial directives on these matters.  Counsel must bring them to the attention of the County Clerk and the relevant Clerk's Office.  See CPLR 8019 (c).  Both the County Clerk and General Clerk's Office must be served with copies of orders regarding captions, etc. since each office maintains computer records on cases in our court but these records are not connected to one another.

C. FILING OF NOTES OF ISSUE

A note of issue must of course be filed in order to place a case on the calendar for trial (CPLR 3402(a)), including inquests or framed issue hearings before a Justice (but not hearings conducted by a Referee). The fees for filing a note of issue and jury demand must be paid to the County Clerk (Room 160 at 60 Centre Street) first (fees are $ 30 and $ 65 respectively).  A note of issue must be filed with the General Clerk's Office, accompanied by a certificate of readiness, an affirmation of counsel reciting compliance with any preliminary conference order, a copy of such order and an affidavit of service. Uniform Rule 202.21. If an attorney wishes to file a note of issue late, the clerk's office will seek authorization from the assigned Justice to accept it; the court can authorize a late filing by endorsement on the note (a notation of "OK to file by _______" with a signature by the Justice will suffice); or the parties may seek an extension from the court by presenting a stipulation for "so ordering." In light of DCM deadlines, counsel should not assume that extensions, even by stipulation, can be had without good cause.

D.   APPEARANCE AND WITHDRAWAL OF COUNSEL

Atttorneys who appear in cases in the court should check the court's Civil Case Information System (computerized case history system) or the attorney listings in our court's Supreme Court Records On-Line Library ("Scroll") on this website to be sure that their appearance has been correctly recorded there.

An attorney of course can withdraw from a representation without court approval upon filing a consent to change counsel. Consents to change attorneys must be filed in the General Clerk's Office so that the court's computer can be modified to reflect accurately the representations in the case.  Filing with the County Clerk does not suffice since, as noted, the two offices maintain separate computer systems. 

Absent the proper filing of a consent, an attorney will continue as attorney of record, irrespective of discord with the client or longstanding inability to contact the client, unless the attorney obtains judicial approval to withdraw. The attorney must make a motion for leave to withdraw. If the motion is granted, outgoing counsel must of course comply with all terms of the court’s order. A copy of the order must be served by the attorney on both the County Clerk and the General Clerk's Office so that each may modify its records.

 

November 2012