New Commercial Division Rule Encourages Pre-Trial Evidentiary Hearings or Immediate Trial on Dispositive Issues
On July 25, 2018, Chief Administrative Judge of the Courts, Lawrence K. Marks, issued an administrative order promulgating Rule 9-a of the Commercial Division Rules. See 22 N.Y.C.R.R. 202.70. The Rule, entitled “Immediate Trial or Pre-Trial Evidentiary Hearing,” encourages parties to move for a pre-trial evidentiary hearing or immediate trial on factual issues that could resolve a material part of the case. New Rule 9-a states:
Subject to meet the requirements of CPLR 2218, 3211(c) or 3212(c), parties are encouraged to demonstrate on a motion to the court when a pre-trial evidentiary hearing or immediate trial may be effective in resolving a factual issue sufficient to effect the disposition of a material part of the case. Motions where a hearing or trial on a material factual issue may be particularly useful in disposition of a material part of a case, include, but are not limited to:
(a) Dispositive motions to dismiss or motions for summary judgment;
(b) Preliminary injunction motions, including but not limited to those instances where the parties are willing to consent to the hearing being on the merits;
(c) Spoliation of evidence motions where the issue of spoliation impacts the ultimate outcome of the action;
(d) Jurisdictional motions where issues, including application of long arm jurisdiction may be dispositive;
(e) Statute of limitations motions; and
(f) Class action certification motions.
In advance of an immediate trial or evidentiary hearing, the parties may request, if necessary, that the court direct limited expedited discovery targeting the factual issue to be tried.
The Rule reminds litigations of their ability to move for pre-trial evidentiary proceedings available to litigants under CPLR sections 2218, 3211, and 3212, procedural vehicles already available. Rule 9-a comes in the wake of an Advisory Council recommendation that the failure to employ these CPLR provisions permitting immediate trial of material factual issues can delay the resolution of Commercial Disputes. The Advisory Council’s position was that broad-based and costly litigation can be avoided by employing pre-trial evidentiary hearings and immediate trial provisions in the Civil Procedure statute. The hope is that Rule 9-a will encourage litigants to use these already available devices to ensure prompt and productive resolutions of disputes earlier on in their cases. That Rule 9-a lists appropriate motions for immediate trial and pre-trial evidentiary hearings will bring addition clarity to this form of pre-trial motion practice.
 See Jordan M. Engelhardt and Muhammad U. Faridi, Advisory Council Proposes a Series of Commercial Division Rule Changes Aimed at Enhancing the Efficiency of Commercial Litigation, NY Commercial Division Blog (March 19, 2018).