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Commercial Division Rules Expanded to General Civil Practice in New York Effective February 1, 2021

Administrative Order 270/2020—which adopts certain Commercial Division Rules into the Uniform Civil Rules for the Supreme Court in New York—went into effect on February 1, 2021.[1]  In signing this order, Chief Judge Marks described the Commercial Division as “an efficient, sophisticated, up-to-date court, dealing with challenging commercial cases” that “has had as its primary goal the cost-effective, predictable and fair adjudication of complex commercial cases[.]”[2]  Further, he acknowledged the Commercial Division’s role in dealing with the “unique problems of commercial practice,” and praised its “function[] as an incubator, becoming a recognized leader in court system innovation, and demonstrating an unparalleled creativity and flexibility in development of rules and practices[.]”[3]

Judge Marks’ order comes after the Administrative Board of the Courts requested public comment on the advisability of adopting Commercial Division Rules into general civil practice, and after review of those public comments.[4]  Notably, the order specifically refers to the “unique opportunit[y]” created by the COVID-19 pandemic to institute new reforms.[5]

Many of the new rules include changes to discovery practices in the general part.  For example:

  • Rule 202.20 limits parties to 25 interrogatories (including sub-parts).  Similarly, unless otherwise stipulated by the parties or ordered by the court, Rule 2020.20-b limits parties to 10 depositions each, with each deposition limited to 7-hours in length.[6]
  • Rule 202.20-e(a) requires parties to “strictly comply with discovery obligations by the dates set forth in all case scheduling orders . . . [n]on-compliance with such an order may result in the imposition of an appropriate sanction against that party pursuant to CPLR 3126.”  Moreover, Rule 202.20-e(b) provides that “[i]f a party seeks documents from an adverse party as a condition precedent to a deposition of such party and the documents are not produced by the date fixed, the party seeking disclosure may ask the court to preclude the non-producing party from introducing such demanded documents at trial.”[7]
  • Rule 202.20-a now requires parties to meet and confer regarding privilege logs and review.  Such meet and confers should include a discussion of the use of categorical privilege logs.[8]

The new rules also incorporate additional motion practice and filing requirements including:

  • Rule 202.8-b replaces the inconsistent page limits in place in the individual practices of non-Commercial Parts with standard word counts for all filings.  Specifically, “affidavits, affirmations, briefs and memoranda of law in chief” are limited to 7,000 words each and “reply affidavits, affirmations, and memoranda” are limited to 4,200 words.  Attorneys are further required to certify the word count of all filings.[9]
  • Rule 202.8-g adopts the Commercial Division and federal practice requirement that parties seeking summary judgment submit a “short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried.”[10]
  • Rule 202.8-e requires parties seeking emergency injunctive relief to give notice of the date, time, and place and manner of any such motion to their adversaries.  Applications for temporary injunctive relief must be accompanied by a statement either that (i) such notice has been given, (ii) notice could not be given despite a good faith effort to do so; or (iii) providing such notice would cause significant prejudice to the moving party.  The moving party must also provide the opposing party with copies of all supporting papers for the motion.[11]

Finally, the new rules implement changes to increase efficiency for court appearances, such as:

  • Rule 202.1 adopts the Commercial Division requirement that counsel appearing at any conference must “be familiar with the case in regard to which they appear and be fully prepared and authorized to discuss and resolve the issues which are scheduled to be the subject of the appearance.”[12]
  • Rule 202.23 eliminates the “cattle call” calendar and now requires “[s]taggered court appearances[,]” including for oral argument on motions, which must be assigned a “set time” or “time interval” for when the court expects to hear oral argument.[13]

As Judge Marks notes, the adoption of these rules should enhance the ability of New York courts to efficiently and predictably resolve the cases before them.   All lawyers who appear before New York courts in any civil matters should review the full order, which contains all of the rule changes, so that they are adequately prepared for future court proceedings under the new rules going forward.

By Gizele Rubeiz and Jacqueline L. Bonneau

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] 22 N.Y.C.R.R. § 202.20-b(a).

[7] Id. §§ 202.20-e(a), (b).

[8] Id. § 202.20-a(a).

[9] Id. §§ 202.8-b(a), (c).

[10] Id. § 202.8-g(a).

[11] Id. § 202.8-e.

[12] Id. § 202.1(f).

[13] Id. § 202.23(a).