|Part & Title:|
|Uniform Rules for Courts Exercising Criminal Jurisd.|
|Uniform Civil Rules for the Supreme Court and County Court|
|Uniform Rules for the Family Court|
|Uniform Rules for the Court of Claims|
|Uniform Rules of the Surrogate's Court|
|Uniform Rules for the New York City Civil Court|
|Uniform Civil Rules for the City Courts Outside of NYC|
|Uniform Civil Rules for the District Courts|
|Uniform Civil Rules for the Justice Courts|
|Use of Recycled Paper|
|Sealing of Court Records in Civil Actions in the Trial Courts|
|Access To Court Interpreter Services for Persons With Limited English Proficiency|
|Uniform Rules for the Trial Courts in Capital Cases|
|Uniform Rules for Jury Selection and Deliberation|
|Uniform Rules for the Conduct of Depositions|
|PART 206. Uniform Rules For The Court Of Claims|
(a) Application. This Part shall be applicable to all actions and proceedings in the Court of Claims.
(b) Waiver. For good cause shown, and in the interests of justice, the court in an action or proceeding may waive compliance with any of the rules in this Part, other than sections 206.2 and 206.3, unless prohibited from doing so by statute or by rule of the Chief Judge.
(c) Application of the Court of Claims Act and the Civil Practice Law and Rules. The provisions of this Part shall be construed consistent with the Court of Claims Act, and matters not covered by these provisions or the Court of Claims Act shall be governed by the Civil Practice Law and Rules (CPLR).
(1) "Presiding Judge". Reference in these rules to the Presiding Judge shall mean the judge of the Court of Claims designated as such by the Governor pursuant to section 2 of the Court of Claims Act.
(2) "Clerk". References to the clerk in the Court of Claims Act and in these rules are to the Chief Clerk of the Court in Albany, whose mailing address is:
New York State Court of Claims
P.O. Box 7344, Capitol Station
Albany, NY 12224
and whose filing office is located at:
Justice Building, 7th Floor
Governor Nelson A. Rockefeller Empire State Plaza
(3) "Chief Administrator of the Courts" in this Part also includes a designee of the Chief Administrator.
(4) Unless otherwise defined in this Part, or the context otherwise requires, all terms used in this Part shall have the same meaning as they have in the Court of Claims Act and CPLR.
206.02 Terms and parts of court.
(a) Terms of Court. A term of court is a four-week session of court, and there shall be 13 terms of court in a year, unless otherwise provided in the annual schedule of terms established by the Chief Administrator of the Courts, which also shall specify the dates of such terms.
(b) Parts of Court.
(1) A part of court is a designated unit of the court in which specified business of the court is to be conducted by a judge or quasi-judicial officer.
(2) There shall be such parts of the Court of Claims as may be authorized from time to time by the Chief Administrator of the Courts.
206.03 Individual assignment system; structure.
(a) General. There shall be established for all actions heard in the Court of Claims an individual assignment system which provides for the continuous supervision of each action by a single judge. Except as otherwise may be authorized by the Chief Administrator or by these rules, every action shall be assigned and heard pursuant to the individual assignment system.
(b) Assignments. Except as otherwise provided by these rules, actions shall be assigned to the judges of the court upon the filing of a claim with the court. Assignments shall be made by the clerk pursuant to a method of random selection authorized by the Chief Administrator. The judge thereby assigned shall be known as the "assigned judge" with respect to that matter and, except as otherwise provided in subdivision (c) of this section, shall conduct all further proceedings therein.
(1) Assignment of public construction contract claims and prisoner pro se claims shall be made at a time and in a manner authorized by the Chief Administrator.
(2) Where the requirements of matters already assigned to a judge are such as to limit the ability of that judge to handle additional cases, the Chief Administrator may authorize that new assignments to that judge be suspended until the judge is able to handle additional cases.
(3) The Chief Administrator may authorize the establishment of special categories of actions, including but not limited to public construction contract actions, prisoner pro se actions, medical malpractice actions, appropriate actions and actions requiring protracted consideration, for assignment to judges specially assigned to hear such actions. Where more than one judge is specially assigned to hear a particular category of action or proceeding, the assignment of such actions or proceedings to the judges so assigned shall be at random.
(4) The Chief Administrator may authorize the assignment of one or more special reserve trial judges. Such judges may be assigned matters for trial in exceptional circumstances where the needs of the court require such assignment.
(5) Matters requiring immediate disposition may be assigned to a judge designated to hear such matters when the assigned judge is not available.
(6) The Chief Administrator may authorize the transfer of any action and any matter relating to an action from one judge to another in accordance with the needs of the court.
206.04 Court districts; structure.
(a) The court shall be divided into eight districts comprised of the counties listed below. The clerk shall prepare calendars composed of claims arising within the counties constituting said district.
(b) No claim shall be transferred for trial from one district to another unless ordered upon motion on notice setting forth the grounds, or upon order of the Presiding Judge.
(a) A claim shall be filed by delivering it to the office of the clerk either in person or by facsimile transmission or electronic means pursuant to sections 206.5-a and 206.5-aa of this Part, respectively, or upon the receipt thereof at the clerk's office by mail. Except where filing is made by facsimile transmission or electronic means, at the time of filing the original claim, the claimant shall file in the clerk's office two copies thereof. Proof of service on the defendant shall be filed in paper form or by facsimile transmission or electronic means with the clerk within 10 days of such service. Upon the filing, other than by electronic means, of a claim that is subject to the FBEM (Filing by Electronic Means) pilot program, the clerk shall provide the claimant with a copy of a Notice Regarding Availability of Electronic Filing in a form approved by the Chief Administrator of the Courts. Regardless of the manner in which a claim is filed, where such claim is subject to the FBEM pilot program and the claimant desires that the action be subject to FBEM, he or she shall serve the defendant with a Notice of Identifying the Claim as Subject to Electronic Filing in a manner authorized by section 202.5-b(g)(1) of this Part. Such Notice Identifying the Claim as Subject to Electronic Filing shall read substantially as follows:
(1) a judge orders otherwise; or
(2) the papers involved are not permitted to be filed or served electronically.
(b) The clerk shall notify the claimant or the claimant's attorney of the date of filing of the claim. The clerk shall number each claim in the order of its filing and advise the claimant or the claimant's attorney of the claim number and of the name of the assigned judge. Thereafter such number and judge's name shall appear on the outside cover and first page to the right of the caption of every paper tendered for filing in the action. A small claim filed pursuant to article 6 of the Eminent Domain Procedure Law shall be numbered in the same manner as other claims except its number shall be followed by the suffix "s." In addition to complying with the provisions of CPLR 2101, unless the court shall otherwise permit in the interest of justice, every paper filed in court shall have annexed thereto appropriate proof of service on all parties where required, and every paper, other than an exhibit or printed form, shall contain writing on one side only and if typewritten, shall have at least double space between each line, except quotations and the names and addresses of attorneys appearing in the action, and shall have at least one-inch margins. In addition, every paper filed in court, other than an exhibit or printed form, shall contain writing on one side only, except that papers that are fastened on the side may contain writing on both sides. Papers that are stapled or bound securely shall not be rejected for filing simply because they are not bound with a backer of any kind.
(c) All other papers required to be served upon a party shall be filed with the clerk either before service or within a reasonable time thereafter, except demands for a verified bill of particulars and bills of particulars, together with proof of service, which shall be filed within 10 days after service thereof, and claims, which shall be filed within the times prescribed by the Court of Claims Act. If filing these papers in paper form, a party shall file an original and two copies thereof.
(d) Submission of Papers to Judge. All papers for signature or consideration of the court shall be presented to the clerk. No papers shall be submitted directly to a judge or a member of his or her staff, unless the judge so directs, in which event a copy shall be filed in the clerk's office at the first available opportunity. All papers for any judge that are filed in the clerk's office shall be promptly delivered to the judge by the clerk. The papers shall be clearly addressed to the judge for whom they are intended and prominently show the nature of the papers, the title and claim number of the action in which they are filed, the assigned judge's name, and the name of the attorney or party submitting them.
(a) Application. This section shall take effect on May 3, 1999, and shall be applicable to the filing of any paper with the court in any action or proceeding commenced on or after such date.
(b) Filing of Papers With the Court.
(1) Except where papers required or permitted to be filed with the court must be filed by electronic means, such papers may be delivered to the clerk of the court by facsimile transmission at a facsimile telephone number provided for such purpose by the clerk. The cover sheet utilized for such facsimile transmission shall be in a form prescribed by the Chief Administrative of the Courts and shall indicate the nature of the paper being filed; any previously assigned claim number; the name and address of the filing party or the party's attorney; the telephone number of the party or attorney; the facsimile telephone number that may receive a return facsimile transmission; and the number of total pages, including the cover sheet, being filed. All such papers shall comply with the requirements of CPLR 2101(a) and shall be signed and verified as required by law. The clerk shall not be required to accept such filing if it is more than 50 pages in length (including exhibits, but excluding the cover sheet). Documents may be filed by facsimile transmission at any time of the day or night; only documents received before 12 midnight on any day will be considered to have been received as of that day.
(2) Upon receipt of papers filed by facsimile transmission, the clerk shall stamp such papers with the date the papers were received, and no later than the following business day, shall transmit a copy of the first page of each paper received, containing the date of receipt, to the filing party or attorney either by facsimile transmission or by posting by first class mail. If any page of the papers received by the clerk is missing or illegible, the confirmation of receipt transmitted by the clerk shall so state, and party or attorney forthwith shall transmit a new or corrected page to the clerk for appropriate inclusion in the transmitted papers and notice shall be given by the clerk to said party or attorney that the new or corrected page was received.
(a) There is hereby established a pilot program in which, on or after January 1, 2003, all designated claims in the Court of Claims shall be subject to filing by electronic means (FBEM) in accordance with the provisions of section 202.5-b of this Title.
(b) For purpose of this section:
(1) the term "action" as used in section 202.5-b of this Title, shall also include a claim in the Court of Claims;
(2) the term "designated claim" shall mean a claim falling within one or more categories of claims designated pursuant to subdivision (c) of this section; provided, however the terms designated claim may not include a claim commenced by a Federal, State or local inmate under sentence for conviction of a crime; and
(3) references to the County Clerk, the Chief Clerk of the Supreme Court or the clerk of a court in section 202.5-b of this Title shall be deemed to mean the clerk of the Court of Claims.
(c) From time to time, the Presiding Judge of the Court of Claims, at the request of the Attorney General or his or her designee, may designate one or more categories of claims in the Court of Claims, as identified by subject matter, geographic region or otherwise, as claims to be subject to FBEM. The clerk of the Court shall promptly advise the Attorney General of all such designations. Upon designation of a category of claims by the Presiding Judge pursuant to this subdivision, the Attorney General shall be deemed, for all purposes under section 202.5-b, to have agreed to service of all papers upon him or her by electronic means for those claims in which the claimant consents to proceed pursuant to such section.
(d) Notwithstanding the foregoing, the provisions of section 202.5-b(b)(1) of this Title shall not apply to claims in the Court of Claims.
Amended (c) Oct. 18, 2004
(a) Pursuant to section 11-a of the Court of Claims Act, the claim shall be accompanied by either a filing fee of $50 or a motion, affidavit or certification pursuant to section 1101 of the Civil Practice Law and Rules (CPLR).
(b) No filing fee shall be required for a third-party claim filed pursuant to section 9(9-a) of the Court of Claims Act and section 206.6(g) of this Part or for the initiation of a special proceeding.
(c) An application pursuant to CPLR 1101(d) or (f) for waiver or reduction of the filing fee shall be made by completing the affidavit supplied by the clerk's office and filing the affidavit with the claim. The clerk's office will notify the claimant of the court's decision by mail.
(a) In addition to the requirements prescribed by section 11 of the Court of Claims Act, the claim or notice of intention shall state the post office address of each claimant therein, and the name, post office address and telephone number of the attorney for each claimant.
(b) There shall be included in each claim, or attached thereto, a schedule showing in detail each item of damage claimed and the amount of such item. Where claimant is proceeding upon more than one cause of action, each additional cause of action shall be separately stated and numbered.
(c) In all actions where a notice of intention to file a claim has been served, the claim shall state the date of service on the Attorney General.
(d) Where the claim is for the temporary or permanent appropriation of real property, it shall contain a specific description of the property giving its location and quantity. The original and all filed copies of such claim shall have annexed thereto a duplicate of the official appropriation map or maps filed in the office of the commissioner of the department involved in the taking, covering the property for which the claim is filed.
(e) If the claim is filed under a special statute, such statute shall be pleaded by reference.
(f) Changes in the post office address or telephone number of any attorney or pro se claimant therefor shall be communicated in writing to the clerk within 10 days thereof.
(g) Actions for Declaratory Judgment, pursuant to section 9(9-a) of the Court of Claims Act, shall be commenced by the filing with the clerk and service upon the third-party defendant of a notice of impleader, together with a third-party claim, in the nature of a complaint, and all prior pleadings in the action. Such papers also shall be served upon all other parties. Service upon the third-party defendant shall be made in the same manner as service of a claim under section 11 of the Court of Claims Act. The original third- party claim and two copies thereof shall be filed with the clerk within 10 days of such service. Responsive pleadings shall be served and filed in accordance with section 206.7 of this Part.
(a) Except in appropriation actions, the defendant shall serve an answer to each claim; the defendant may include a counterclaim in its answer, in which case the claimant shall serve a reply. Except as extended by CPLR 3211(f), service of all responsive pleadings shall be made within 40 days of service of the pleading to which it responds. The original and two copies of each responsive pleading, together with proof of service, shall be filed with the clerk within 10 days of such service.
(b) Pleadings may be amended in the manner provided by CPLR 3025, except that a party may amend a pleading once without leave of court within 40 days after its service, or at any time before the period for responding to it expires, or within 40 days after service of a pleading responding to it. Where a response to an amended or supplemental pleading is required, it shall be made within 40 days after service of the amended or supplemental pleading to which it responds.
(c) Stipulations between parties extending the time limits herein shall be executed prior to the expiration of such time limits, and shall be filed with the clerk within 10 days thereafter.
(a) There shall be compliance with the procedures prescribed in the CPLR for the bringing of motions. In addition, no motion shall be filed with the court unless a notice of motion is served and filed, with proof of service, with the motion papers.
(b) No motion relating to disclosure shall be placed on the calendar without counsel for the respective parties first conferring with the assigned judge. This subdivision shall not apply to prisoner pro se claims.
(c) No motion by an attorney seeking to be relieved as counsel for a party shall be placed on the calendar unless initiated by order to show cause.
(d) The notice of motion shall read substantially as follows:
Upon the affidavit of _____, sworn to on _____ 20 _____ , and upon (list supporting papers if any), the _____will move this court on the _____ day of _____, 20 _____ , for an order (briefly indicate relief requested).
The above-entitled action is for (briefly state nature of action, e.g., personal injury, medical malpractice, etc.).
(e) The notice of motion set forth in subdivision (d) of this section shall not be required for a motion brought on by an order to show cause or an application for ex parte relief.
[FN1] If any party is appearing pro se, the name, address and telephone number of such party shall be stated.
(a) All motions relating to assigned claims shall be returnable before the assigned judge and, unless otherwise directed by the assigned judge, shall be made returnable at 9:30 a.m. on any Wednesday designated by the judge's schedule for the calendaring of motions. Motions relating to applications for permission to file a late claim, and any other motions pertaining to an unassigned claim, shall be made returnable at 9:30 a.m. on any Wednesday at a special part of the court in the district in which the claim arose or is then pending.
(b) Unless brought on by a show cause order, the original and two copies of all motion papers with proof of service annexed shall be filed in the clerk's office at least eight days before the return date thereof. The moving party shall also serve a copy of all affidavits and briefs upon all other parties at the time of service of the notice of motion. The answering party shall file and serve copies of all affidavits and briefs as required by CPLR 2214(b) and these rules.
(c) Unless oral argument has been requested by a party and permitted by the court, or directed by the court, motions shall be deemed submitted as of the return date. A party requesting oral argument shall set forth such a request in its notice of motion or on the first page of the answering papers, as the case may be. A party requesting oral argument on a motion brought on by an order to show cause shall do so as soon as practicable before the time the motion is to be heard.
(d) Ex Parte Applications. Whenever any party shall make an ex parte application to the court for an order, it shall be the duty of the party making the application to present to the assigned judge the proposed original order and to serve on his or her adversary a true conformed copy thereof. The signed original order together with proof of service shall be filed in the clerk's office.
(e) Submission of Orders. Proposed orders must be submitted for signature, unless otherwise directed, within 60 days of the filing of the decision directing that the order be settled or submitted. Failure to submit the order timely shall be deemed an abandonment of the motion, unless for good cause shown.
(a) In all matters, except appropriation claims and prisoner pro se claims, the court shall order a preliminary conference as soon as practicable, but no later than six months, after the action has been assigned.
(b) The court, in ordering a preliminary conference, shall fix the date and time for the conference and notify the parties. Except where a party appears pro se, an attorney thoroughly familiar with the claim and authorized to act on behalf of the party shall appear at such conference.
(c) The matters to be considered at the preliminary conference shall include:
(1) simplification and limitation of factual and legal issues, where appropriate;
(2) establishment of a timetable for the completion of all disclosure proceedings, provided that all such procedures must be completed within 18 months of the assignment of the claim to the judge, unless otherwise shortened or extended by the court depending upon the circumstances;
(3) settlement of the claim; and
(4) any other matters that the court may deem relevant.
(d) In lieu of a preliminary conference as outlined in this section, and unless the court orders otherwise, the parties may execute a stipulation, to be so ordered by the court, agreeing to a timetable for the completion of disclosure within 18 months of the assignment of the claim to the judge.
(e) The court may direct the holding of additional conferences as the court may deem helpful or necessary in any matter before the court.
(f) At the conclusion of any conference the court may make a written order including its directions to the parties as well as stipulations of counsel.
(g) If any party fails to appear for a scheduled conference, the court may note the default on the record and enter such order as appears just, including dismissal.
Amended (a), (d), (f), and (g) Oct. 18, 2004
(a) When Permitted. Depositions authorized under the provisions of the Civil Practice Law and Rules or other law may be taken, as permitted by section 3113(b) of the Civil Practice Law and Rules, by means of simultaneous audio and visual electronic recording, provided such recording is made in conformity with this section.
(b) Other Rules Applicable. Except as otherwise provided in this section, or where the nature of videotaped recording makes compliance impossible or unnecessary, all rules generally applicable to examinations before trial shall apply to videotaped recording of depositions.
(c) Notice of Taking Depositions. Every notice or subpoena for the taking of a videotaped deposition shall state that it is to be videotaped and the name and address of the videotape operator and of the operator's employer, if any. The operator may be an employee of the attorney taking the deposition or of the Department of Law. Where an application for an order to take a videotaped deposition is made, the application and order shall contain the same information.
(d) Conduct of the Examination.
(1) The deposition shall begin by one of the attorneys or the operator stating on camera:
(i) the operator's name and address;
(ii) the name and address of the operator's employer;
(iii) the date, the time and place of the deposition; and
(iv) the party on whose behalf the deposition is being taken.
The officer before whom the deposition is taken shall be a person authorized by statute and shall identify himself or herself and swear the witness on camera. If the deposition requires the use of more than one tape, the end of each tape and the beginning of each succeeding tape shall be announced by the operator.
(2) Every videotaped deposition shall be timed by means of a time-date generator which shall permanently record hours, minutes, and seconds. Each time the videotape is stopped and resumed, such times shall be orally announced on the tape.
(3) More than one camera may be used, either in sequence or simultaneously.
(4) At the conclusion of the deposition, a statement shall be made on camera that the recording is completed. As soon as practicable thereafter, the videotape shall be shown to the witness for examination, unless such showing and examination are waived by the witness and the parties.
(5) Technical data, such as recording speeds and other information needed to replay or copy the tape, shall be included on copies of the videotaped deposition.
(e) Copies and Transcription. The parties may make audio copies of the deposition and thereafter may purchase additional audio and audio-visual copies. A party may arrange to have a stenographic transcription made of the deposition at his or her own expense.
(f) Certification. The officer before whom the videotape deposition is taken shall cause to be attached to the original videotape recording a certification that the witness was fully sworn or affirmed by the officer and that the videotape recording is a true record of the testimony given by the witness. If the witness has not waived the right to a showing and examination of the videotape deposition, the witness shall also sign the certification in accordance with the provisions of section 3116 of the Civil Practice Law and Rules.
(g) Filing and Objections.
(1) If no objections have been made by any of the parties during the course of the deposition, the videotape deposition and one copy may be filed by the proponent with the clerk and shall be filed upon the request of any party.
(2) If objections have been made by any of the parties during the course of the deposition, the videotape deposition, with the certification, shall be submitted to the court upon the request of any of the parties within 10 days after its recording, or within such other period as the parties may stipulate, or as soon thereafter as the objections may be heard by the court, for the purpose of obtaining rulings on the objections. An audio copy of the sound track may be submitted in lieu of the videotape for this purpose, as the court may prefer. The court may view such portions of the videotape recording as it deems pertinent to the objections made, or may listen to an audiotape recording. The court, in its discretion, may also require submission of a stenographic transcript of the portion of the deposition to which objection is made, and may read such transcript in lieu of reviewing the videotape or audio copy.
(i) The court shall rule on the objections prior to the date set for trial and shall return the recording to the proponent of the videotape with notice to the parties of its rulings and of its instructions as to editing. The editing shall reflect the rulings of the court and shall remove all references to the objections. The proponent, after causing the videotape to be edited in accordance with the court's instructions, may cause both the original videotape recording and the deleted version of the recording, and a copy of each, clearly identified, to be filed with the clerk, and shall do so at the request of any party. Before such filing, the proponent shall permit the other party to view the edited videotape.
(ii) The court may, in respect to objectionable material, instead of ordering its deletion, permit such material to be clearly marked so that the audio recording may be suppressed by the operator during the objectionable portion when the videotape is presented at the trial. In such case the proponent may cause both the original videotape recording and a marked version of that recording, and a copy of each, clearly identified, to be filed with the clerk of the court, and shall do so at the request of any party.
(h) Custody of Tape. When the tape is filed with the clerk of the court, the clerk shall give an appropriate receipt for the tape and shall provide secure and adequate facilities for the storage of videotape recordings.
(i) Use at trial. The use of videotape recordings of depositions at the trial shall be governed by the provisions of the Civil Practice Law and Rules and all other relevant statutes, court rules and decisional law relating to depositions and relating to the admissibility of evidence. The proponent of the videotaped deposition shall have the responsibility of providing whatever equipment and personnel may be necessary for presenting such videotape deposition.
(j) Applicability to Audio Taping of Depositions. Except where clearly inapplicable because of the lack of a video portion, these rules are equally applicable to the taking of depositions by audio recording alone. However, in the case of the taking of a deposition upon notice by audio recording alone, any party, at least five days before the date noticed for taking the deposition, may apply to the court for an order establishing additional or alternate procedures for the taking of such audio deposition, and upon the making of the application, the deposition may be taken only in accordance with the court order.
(k) Cost. The cost of videotaping or audio recording shall be borne by the party who served the notice for the videotaped or audio recording of the deposition.
(l) Transcription for Appeal. On appeal, visual and audio depositions shall be transcribed in the same manner as other testimony and transcripts filed in the appellate court. The visual and audio depositions shall remain part of the original record in the case and shall be transmitted therewith. In lieu of the transcribed deposition and, on leave of the appellate court, a party may request a viewing of portions of the visual deposition by the appellate court but, in such case, a transcript of pertinent portions of the deposition shall be filed as required by the court.
(a) General. No action shall be deemed ready for trial unless there is first filed a note of issue accompanied by a certificate of readiness, with proof of service on all parties entitled to notice, in the form prescribed by this section. Filing of a note of issue and certificate of readiness shall not be required for prisoner pro se claims, for an application for court approval of the settlement of the claim of an infant, incompetent or conservatee, or for an application for court approval of a settlement pursuant to section 20-a of the Court of Claims Act. The note of issue shall include the claim number, the name of the judge to whom the action is assigned, and the name, office address and telephone number of each attorney or individual who has appeared. Within 10 days after service, the original note of issue and certificate of readiness, with proof of service, shall be filed with the clerk.
(b) Forms. The note of issue and certificate of readiness shall read substantially as follows:
(d) Striking Note of Issue. Within 20 days after service of a note of issue and certificate of readiness, any party to the action may move to strike the note of issue, upon affidavit showing in what respects the action is not ready for trial, and the court may strike the note of issue if it appears that a material fact in the certificate of readiness is incorrect, or that the certificate of readiness fails to comply with the requirements of this section in some material respect. After such period, no such motion shall be allowed except for good cause shown. At any time, the court on its own motion may strike a note of issue if it appears that a material fact in the certificate of readiness is incorrect, or that the certificate of readiness fails to comply with the requirements of this section in some material respect.
(e) Restoration of Note of Issue. Motions to restore notes of issue struck pursuant to this section shall be supported by a proper and sufficient certificate of readiness and by an affidavit by a person having first-hand knowledge showing that there is merit to the action, satisfactorily showing the reasons for the acts or omissions which led to the note of issue being struck from the calendar, stating meritorious reasons for its restoration and showing that the action is presently ready for trial.
(f) Change in Title of Action. In the event of a change in title of an action by reason of a substitution of any party, no new note of issue will be required. Notice of such substitution and change in title shall be filed with the clerk for transmittal to the assigned judge within 10 days of the date of an order or stipulation effecting the party substitution or title change.
(g) Unless for good cause shown, the trial of the action shall commence within 15 months of the filing of the note of issue.
Sec. filed Jan. 9, 1986; amd. filed Dec. 19, 1996 eff. Jan. 1, 1997. Added (g).
A judge to whom claims are assigned under the individual assignment system may establish such calendars of claims as the judge shall deem necessary or desirable for proper case management.
Judges to whom claims are assigned pursuant to the individual assignment system may schedule calls of any calendars they have established at such times as they may deem appropriate. The Presiding Judge may schedule calls of any claim appearing on a public construction contract calendar or prisoner pro se calendar at such times as he or she may deem appropriate.
Except where the court otherwise directs, in all actions in which recovery is sought for personal injuries, disability or death, physical examinations and the exchange of medical information shall be governed by the provisions hereinafter set forth:
(a) At any time after joinder of issue, and subject to the time limitation set forth in subdivision (b) of this section, the defendant may serve on claimant a notice fixing the time and place of examination. The notice shall name the examining medical provider or providers. Claimant may move to modify or vacate the notice within 20 days of the receipt thereof.
(b) At least 30 days before the date of such examination, or on such other date as the court may direct, claimant shall deliver to defendant the following, which may be used by the examining medical provider or providers:
(1) copies of the medical reports of those medical providers who have previously treated or examined the claimant. These shall include a recital of the injuries and conditions as to which testimony will be offered at the trial, referring to and identifying those X-ray and technicians' reports which will be offered at the trial, including a description of the injuries sustained, a diagnosis and a prognosis. Medical reports may consist of completed medical provider, workers' compensation, or insurance forms that provide the information required by this paragraph;
(2) duly executed and acknowledged written authorizations permitting the defendant to obtain and make copies of all hospital records and such other records, including X-ray and technicians' reports, as may be referred to and identified in the reports of those medical providers who have treated or examined the claimant.
(c) A copy of the report or reports of the medical provider or providers making the examination pursuant to this section shall be furnished to the claimant within 60 days after completion of the examination. Such copy or copies shall comply with the requirements of paragraph (b)(1) of this section.
(d) In actions where the cause of death is in issue, claimant shall exchange with defendant no later than 45 days after service of the bill of particulars copies of the report or reports of all treating and examining medical providers whose testimony will be offered at the trial, complying with the requirements of paragraph (b)(1) of this section, and claimant will furnish authorizations to the defendant to examine and obtain copies of all hospital records, autopsy or post-mortem reports, and such other records as provided in paragraph (b)(2) of this section. In any case where the interests of justice will not be served by exchange of such reports and delivery of such authorizations, an order dispensing with either or both must be obtained upon motion made before the expiration of time set forth in this section.
(e) Unless an order to the contrary is made or unless the judge, at trial, in the interests of justice and upon a showing of good cause shall hold otherwise, claimant shall be precluded at the trial from offering in evidence any part of the hospital records and all other records, including autopsy or post-mortem records, X-ray reports or reports of other technicians, not made available pursuant to this Part, and no party shall be permitted to offer any evidence of injuries or conditions not set forth in the respective medical reports previously exchanged, nor will the court hear the testimony of any treating or examining medical providers whose medical reports have not been exchanged as provided by this Part.
Whenever a note of issue has been filed and the claimant is not ready for trial or fails to appear for a scheduled trial date, or if the assigned judge has directed that the claim be ready for trial by a particular date and the defendant is ready to proceed with the trial but the claimant is not so ready, the assigned judge, upon motion by the defendant or upon his or her own motion, may dismiss the claim unless sufficient reason is shown why such claim should not be tried at that time. An order dismissing a claim pursuant to this section or any section of this Part, or pursuant to the Court of Claims Act or the CPLR shall not be vacated except upon stipulation of all parties so ordered by the court or by motion on notice to all other parties, supported by affidavit showing sufficient reason why the order should be vacated and the claim restored. Such application shall be made to the judge who granted the order of dismissal unless he or she is no longer a member of the court, in which event application shall be made to the Presiding Judge.
(a) Where the attorney of record for any party arranges for another attorney to conduct the trial, the trial counsel must be identified in writing to the clerk and to all parties not less than 15 days before the date assigned for trial. The notice must be signed by both the attorney of record and the trial counsel and filed with the clerk.
(b) After trial counsel is designated as provided above, no substitution shall be permitted unless the substituted counsel is available to try the case when it is reached in regular order. Written notice of such substitution shall be promptly filed with the clerk and given to all parties.
No adjournment shall be granted on the ground of engagement of counsel except in accordance with Part 125 of the Rules of the Chief Administrator of the Courts (22 NYCRR Part 125).
(a) Except as provided in subdivision (b) of this section, the clerk shall enter judgment within 20 days of the filing of a decision. Either party may submit a proposed judgment to the clerk within 15 days of said filing on five days' notice to the adverse party.
(b) Where an award is made in a claim for the appropriation of real property or any interest therein, or for any damages to real property, the Attorney General shall have 45 days after filing of the decision to notify the clerk in writing whether any suspension of interest under subdivision 4 of section 19 of the Court of Claims Act is required. After said 45-day period, the clerk shall enter judgment forthwith, unless a motion on notice has been made and filed within said period to stay entry of judgment. Filing such a motion shall temporarily stay entry of judgment pending the court's determination.
(a) Judges are encouraged to order a bifurcated trial of the issues of liability and damages in any action for personal injury where it appears that bifurcation may assist in a clarification or simplification of issues and a fair and more expeditious resolution of the action.
(b) Where a bifurcated trial is ordered, the issues of liability and damages shall be severed and the issue of liability shall be tried first, unless the court orders otherwise.
(c) In the event of a claimant's judgment on the issue of liability or a defendant's judgment on the issue of liability on a counterclaim, the damage phase of the trial shall be conducted as soon as possible before the same judge, unless the judge presiding over the trial, for reasons stated in the record, finds such procedure to be impracticable.
The provisions of Part 130 of the Rules of the Chief Administrator of the Courts shall be applicable to the Court of Claims.
(a) In an Appropriation Claim the Defendant Is Not Required to Serve or File an Answer. All allegations in appropriation claims are deemed denied, and issue is joined upon the completion of filing of the claim and proof of service in the clerk's office.
(b) Appraisal Reports. Within six months from the date of completion of filing and service of a claim in an appropriation case, the parties shall prepare and file with the clerk of the court an original and three copies of the appraisal of each appraiser whose testimony is intended to be relied upon at trial. Each appraisal shall set forth separately the value of land and improvements, including fixtures, if any, together with the data upon which such evaluations are based, including but not limited to:
(1) the before value and after value;
(2) direct, consequential and total damages;
(3) details of the appropriation;
(4) details of comparable sales; and
(5) other factors which will be relied upon at trial.
If all the details of comparable sales required by section 16 of the Court of Claims Act are included in the appraisals prescribed herein, such shall be deemed compliance with section 16. Parties should confine the use of notices under section 16 to sales or leases of comparable property not reasonably ascertainable at the time of preparation of their respective appraisals.
(c) Experts' Reports. Where an expert, other than a valuation expert is intended to be relied upon at trial, an original and three copies of the expert's report shall be filed within the same time and in the same manner as above set forth.
(d) Exchange. When all parties have filed their appraisals and reports as herein provided, the clerk shall send copies of each to all other parties.
(e) Amendments and Supplements. If a party intends at trial to offer proof correcting errors in or adding pertinent matter to an appraisal or other expert's report, an original and three copies of an amended or supplemental report shall be filed within two months after the exchange of appraisals and reports. The clerk shall send copies to all other parties.
(f) Rebuttal Reports. If a party intends at trial to offer expert evidence in rebuttal to any report or amended or supplemental report, and original and three copies of the expert's report shall be filed within one month after receipt of the document sought to be rebutted. The clerk shall send copies to all other parties.
(g) Extension of Time.
(1) A party requiring more time than that prescribed in subdivision (b) of this section may apply for an extension of up to six months by letter to the assigned judge and received not later than six months from the date of the filing and service of the claim. The letter application shall show good cause for the extension, and a copy thereof shall be forwarded by the applicant to each other party. The assigned judge in his or her discretion may, by letter, grant an extension for such period, not to exceed six months, and upon such terms and conditions as may be just. Such extension also shall extend the time of other parties.
(2) An application for any further extension shall be made by motion on notice showing good cause and shall be made to the assigned judge prior to the expiration of any previous extension. The court in its discretion may grant the motion upon such terms and conditions as may be just. Alternatively, a further extension may be set forth in a stipulation which shall be signed by the attorneys and submitted to the assigned judge. The court in its discretion may "so order" said extension.
(3) An application for other or further relief from the requirements or consequences of this section also shall be made to the assigned judge by motion on notice showing unusual and substantial circumstances. However, any application for such relief made after the commencement of trial may be granted only upon a showing of extraordinary circumstances. The court in its discretion may grant the motion upon such terms and conditions as may be just.
(h) Limitation of Testimony. At the trial of a claim governed by this section, expert witnesses called by the parties shall be limited in their testimony to matters set forth in their respective appraisals or other reports. A party failing to file appraisals and other reports as provided in this section shall be precluded at trial from offering any expert proof, with the exception of evidence admissible under section 16 of the Court of Claims Act.
(i) Nonapplicability. Compliance with this section shall not be required of a party proceeding in this court pursuant to article 6 of the Eminent Domain Procedure Law (special procedure for claims under $25,000), or a party who files, within the time set forth in subdivision (b) of this section, a notice with proof of service, that no expert proof will be offered at trial. When such a notice is received by the clerk, the clerk shall mail to the party filing the notice a copy of any appraisal or report received from any other party.
(a) The hearing shall be conducted in an informal and simplified manner as to do substantial justice between the parties and to discover expeditiously the facts in order to determine a just result according to the principles and rules of substantive law.
(b) The provisions of the EDPL, the Court of Claims Act, the rules of this court and the CPLR shall apply to small claims, so far as the same can be made applicable and are not in conflict with the provisions of article 6 of the EDPL.
(c) An oath or affirmation shall be administered to all witnesses. The court shall liberally construe statutory provisions and rules of practice, procedure and pleading in connection with the conduct of the hearing.
(d) When, at the hearing of a small claim, the defendant has interposed a counterclaim, the court shall hear the entire case, but the trial of the counterclaim shall be conducted as if it were instituted separate and apart from said small claim.
(1) All claims involving public construction contracts shall contain separately captioned and numbered causes of action. When utilized in a claim, detailed schedules of items of damage that pertain to or are allied with a particular cause of action shall be made a part of said cause of action.
(2) Where the claimant has accepted final payment, the claim shall have attached to it a copy of the statement required by section 145 of the State Finance Law.
(1) Within 30 days after the service and filing of its verified answer, the defendant may serve and file an itemized demand for a bill of particulars.
(2) Unless claimant moves to modify or vacate such demand, said claimant must serve a proper bill of particulars within 60 days of the receipt of the defendant's demand, and file the original with proof of service in the office of the clerk, or may be precluded under CPLR 3042 for failure to furnish a proper bill, unless the time to serve said bill shall be extended as hereinafter provided.
(1) The defendant may serve a notice of an examination before trial of the claimant at any time after the service and filing of its answer, but not later than 60 days after the service of a bill of particulars by the claimant.
(2) The claimant may serve a notice of an examination before trial at any time as provided in the CPLR, but not later than 30 days after the service of a notice by the defendant of an examination before trial of the claimant.
(d) All other motions shall be brought in accordance with the Court of Claims Act, the rules of the Court of Claims and the provisions of the CPLR, and shall be returnable in the district wherein the action is triable.
(e) Subject to the written approval of the court, the parties, within the period of time therein specified, may stipulate to waive or modify any of the requirements of subdivision (b) or (c) of this section.
(f) A party confronted with unusual and special circumstances, requiring more time than prescribed by subdivision (b) or (c) of this section for compliance with any of the provisions of said subdivisions, may move for an extension of time, which the court may grant for such period and under such conditions as the interests of justice require.
(g) After the filing of a note of issue and certificate of readiness, the Presiding Judge, on his or her own initiative or at the request of either party, may schedule a pretrial conference. Except where a party appears in the action pro se, an attorney thoroughly familiar with the action and authorized to act on behalf of the party shall appear at such conference.
(1) In the discretion of the Presiding Judge, the conference may be conducted under the supervision of his or her executive assistant or by the trial judge's law clerk.
(2) The matters to be considered at the pretrial conference shall include:
(i) the marking of all exhibits which either party intends to use at trial;
(ii) stipulation by the parties as to the authenticity and admissibility of those exhibits upon which agreement can be reached, or, where agreement is not possible, the noting of any evidentiary objections to a particular exhibit;
(iii) presentation of any unusual evidentiary issues which may arise during the trial; and
(iv) exchange of any pretrial memoranda which the parties may wish to submit to the Court.
The pretrial conference also may consider disposition of the action and any other matters deemed relevant.
206.24 Claims on submitted facts.
Whenever a claim is submitted to the court on an agreed statement of facts, the claimant, within five days thereafter, shall file in the clerk's office a copy of said statement, which shall be signed at the end thereof by both parties, together with a memorandum stating when and where the claim was submitted and to which judge or judges. Each party, within the same time, shall file in the clerk's office a list of all papers submitted by that party to the court, which list shall sufficiently describe the papers so as to permit their identification.
206.25 Official forms.
The Chief Administrator of the Courts may adopt, amend and rescind official forms for use in the Court of Claims.