CDOLR 2020 – 2021 First Issue

CDOLR 2020 – 2021 Issue 1

CDAC Proposed Rule 9-b

By: Benjamin Kittay

The Commercial Division Advisory Council (“CDAC”) hopes to bring attention to the availability of referees to adjudicate disputes. To accomplish this goal, the CDAC recently proposed Commercial Division Rule 9-b (22 NYCRR § 202.70(g)) to encourage the use of referees in the adjudication of disputes, upon consent of the parties and with the approval of the court. The CDAC believes that referees can be particularly helpful when a case involves hundreds of issues, many emergency rulings, multiple trials, and/or a multitude of orders.

Experience has shown that the use of referees can be particularly attractive to the court and the litigants in a case that does not simply involve a judicial determination of rights involving a past event or transaction. A chosen referee, if given supervision of the matter, can make situations like delay and obfuscation in the discovery motion context much less likely. This is because parties will be motivated to preserve their credibility with the referee.

On the other hand, skeptics have cited to the proposed rule as being merely a suggestion in the form of a rule. This is because rule does not set forth any requirement that any party or the court act, nor is there any ability to enforce it as a rule. Parties like the New York City Bar Association (“NYCBA”) have proposed that, if the CDAC believes a rule is necessary to meet its goals, then the rule should be more than merely advising parties of the availability of referees. The NYCBA suggest that the rule should instead require parties, at or before the Preliminary Conference, to discuss whether they will consent to the use of a referee. The Managing Attorneys & Clerks Association, Inc. (“MACA”) also critiqued the proposed rule during the public comment period, highlighting how the new Commercial Division Rule 9-b would be superfluous due to Article 43 of the CPLR already applying to Commercial Division Actions. MACA also suggested that the new proposal may restrict, rather than promote, parties’ ability to stipulate to a referee of their choosing. This is because the proposed rule states that parties in the Commercial Division may stipulate to the appointment of a referee only “with the agreement of the Court” and that a specific referee “may be appointed by the Court” instead of being selected by the parties’ stipulation. This language could easily be understood to require that any referee in a Commercial Division case must be approved by the assigned judge, even when the parties have already stipulated to the referee, and to give the judge, not the stipulating parties, the authority to determine the identity of the referee.

The Public Comment period closed on December 15, 2023. More information on the proposed amendment can be found at: https://www.nycourts.gov/LegacyPDFS/rules/comments/pdf/CommercialDivision-Referees-102623.pdf.

Public comment received can be found at: https://www.nycourts.gov/LegacyPDFS/rules/comments/pdf/received/Public%20comment%20received%20-%20referees_1-5.pdf.

Amendment to Rule 32

By: Sung Jae Hwang

An amendment to Commercial Division Rule 32 of section 202.70(g) of the Uniform Rules for the Supreme and County Courts was adopted on August 7, 2023, and made effective on August 31, 2023. The amendment made two changes to Rule 32:

(1) The first change added a requirement in the scheduling of witnesses, obligating each party to identify whether the witness(es) it intends to call will testify in person or “through the use of video technology.” Before the amendment, Rule 32 had provided that each party shall identify in writing for the court the witnesses it intended to call, the order in which they would testify, and the estimated length of their testimony. The amendment to Rule 32 now additionally requires each party to identify “whether the witness will testify in person or through the use of video technology.”

(2) The second change added language to Rule 32 to affirmatively state that identification of rebuttal witnesses is “not to be exchanged with other counsel” but given only to the court. Before the amendment, Rule 32 had simply stated that counsel “shall separately identify for the court only a list of witnesses who may be called solely for rebuttal or with regard to credibility.”

The Commercial Division Advisory Council’s Subcommittee on Best Practices for Judicial Case Management recommended the amendment to Rule 32 in July 2022. The subcommittee stated in its proposal that the Advisory Council was “mindful of the issues created by the COVID-19 pandemic and how that could impact the functioning of the Commercial Division going forward.” The amendment, by formally requiring parties to identify whether certain witnesses will testify in person or virtually, recognizes a practice necessitated by the pandemic and seeks to establish virtual testimony as a permanent option for parties in the future.

In December 2022, the Administrative Board of the Courts sought public comment on the proposed amendment. The New York State Bar Association responded in support of the amendment, stating that “there is a need in Rule 32 to acknowledge that trial testimony of a witness may not always be in person, and that opposing counsel and the court need to be apprised in advance of such means of testimony.” It also stated that the proposed amendment “properly makes explicit what had been implicit that the list of potential rebuttal witnesses . . . need not be exchanged with opposing counsel.” The New York City Bar Association supported the proposed amendment with a suggested modification: adding “if permitted and subject to objection” to the identification of witnesses who will testify through video technology. It wanted to ensure that “the rule does not imply that witnesses may automatically be permitted to testify virtually, given the conditions set forth in Commercial Division Rule 36” (which provides inter alia that the court may, with the consent of the parties, permit a witness to participate in an evidentiary hearing or a non-jury trial using video technology*). However, the amendment to Rule 32 was adopted without the New York City Bar Association’s suggested modification.

For more information, see https://ww2.nycourts.gov/rules/comments/index.shtml under “December 6, 2022: Request for Public Comment on Amending Commercial Division Rule 32 Pertaining to the Scheduling of Witnesses.”

*There is a proposed amendment to Rule 36, which will authorize courts to order a virtual evidentiary hearing or bench trial without the consent of the parties, upon a showing of good cause. For more information, see https://ww2.nycourts.gov/rules/comments/index.shtml under “September 23, 2022: Request for Public Comment on Amending Commercial Division Rule 36 to Clarify the Courts’ Authority to Order Virtual Evidentiary Hearings and Bench Trials.”

CDOLR 2023-2024 First Issue

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CDOLR 2022-2023 First Issue

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Proposed Amendment to Commercial Rule 27

By Astrid Roe

The Commercial Division Advisory Council’s (CDAC) Subcommittee on Best Practices for Judicial Management recently recommended an amendment to Commercial Division Rule 27. Rule 27 governs the procedure for making motions in limine in the commercial division courts. CDAC recommends several additions to Rule 27 to “provide guidance on the types of issues that motions in limine should address” and ensure courts are more receptive to motions in limine.

The amendment to Rule 27 creates a deadline for service of papers in opposition to a motion in limine, mandating they be served at least two days before the motion’s date of return. Also, it requires oppositions challenging the admissibility of specific exhibits or specific deposition testimony based on threshold issues to be made under Rule 28 and Rule 29. Motions in limine should be used only to address broader issues such as the receipt or exclusion of evidence, competence of witnesses, or expert qualifications and receipt of expert testimony. Finally, the amendment states that motions in limine should not be used to bring untimely summary judgment motions.

The Administrative Board of the Courts is seeking public comment on this amendment. Comments can be submitted via mail or e-mail before December 30, 2022. More information on the proposed amendment and submitting a public comment can be found at: https://www.nycourts.gov/LegacyPDFS/rules/comments/pdf/Comm-Division-Rule-27.pdf.

CDAC Proposes Amending Commercial Division Rule 36 To Clarify Courts’ Authority to Order Virtual Evidentiary Hearings and Bench Trials

One of the most enduring changes to the courts to come out of the Covid-19 pandemic is the acceptance and normalization of virtual hearings. The Commercial Division Advisory Council (“CDAC”), recognizing that virtual hearings appear to be here to stay, proposed an amendment to Commercial Division Rule 36, to reduce litigation of the issue and to better regulate virtual evidentiary hearings and bench trials when they are used.

              Rule 36 was promulgated in 2021 to make permanent the provisional order allowing virtual hearings in the face of the pandemic. The original Rule 36 allowed courts to order a virtual hearing, but only with the consent of the parties. The amendment to Rule 36 would clarify court authority to order virtual evidentiary hearings and bench trials on a motion showing good cause—and without the consent of the parties. CDAC believes such a clarification is necessary in the form of an amendment to make explicit the authority of courts to order virtual evidentiary hearings and bench trials without consent of the parties. According to CDAC, this amendment would codify existing case law.

              Currently, case law locates the court’s authority to order virtual bench trials without party consent in Judiciary Law § 2-b(3). Judiciary Law § 2-b(3) empowers the courts “to devise and make new process and forms of proceedings, necessary to carry into effect the powers and jurisdiction possessed by it.” Even though generally case law recognizes that virtual proceedings “preserve the traditional elements of a fair trial,”[i] the proposed rule amendment also include some factors courts should consider in determining whether there is good cause for a virtual proceeding without the consent of the parties. A non-exhaustive list of the factors the amendment asks courts to consider are:

• The overall efficiency of conducting a virtual proceeding,
• Convenience to the parties,
• Travel costs,
• Delay in case management and resolution,
• Safety of the parties, and
• Prejudice to the parties.

              In addition to due process concerns, CDAC’s proposal also addresses practical concerns raised by litigants. CDAC seems confident in its proposal that practical concerns can be resolved or avoided through careful planning and through observance of the State of New York Unified Court System’s Virtual Bench Trial Protocols and Procedures. Practical concerns litigants have raised include the disruption caused by technical issues, the potential for security issues, assessing credibility of witness testimony, and maintaining public access to hearings.

              Virtual proceedings, in most cases, present genuine advantages outside of the context of public health—they can increase efficiency, allow for parties to participate from different geographical locations, and enable public access. But there are undeniable limitations to virtual proceedings as well. Witness testimony seems an especially serious concern—while technology has improved, there can still be deficiencies in the quality of video or audio, or lags which cause the two to be out of sync. Concerns about witnesses having access to off-screen information or communications implicate larger ethical issues outside of concerns about the use of virtual proceedings themselves.

              With the proposed amendments to Rule 36, CDAC attempts to balance the advantages and disadvantages of virtual hearings while providing increased opportunity for consistency, oversight, and regulation.

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[i] Wyona Apartments LLC v. Ramirez, 137 N.Y.S.3d 635, 657 (N.Y. Civ. Ct., Kings Cnty. 2020).

CDOLR 2021-2022 Second Issue

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Ally Statement With the Black Law Students Association

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Interview with Mr. Benjamin Ackley

By Ben Weisman| Staff Writer

Recently, I had the pleasure of interviewing Mr. Benjamin Ackley, an associate at Pryor Cashman.