Tuesday, March 30, 2010

The Preliminary Conference

Almost every action filed in state court becomes the subject of a preliminary conference, which is commonly known as a "PC."  The preliminary conference is governed by Uniform Trial Court Rule section 202.12.  That rule states, in pertinent part, that the matters to be considered at the preliminary conference include: a) where appropriate, simplification and limitation of factual and legal issues; b) establishment of a timetable for completion of disclosure consistent with the requirements of Differentiated Case Management (unless otherwise shortened or lengthened by the court); c) addition of other necessary parties; d) removal to a lower court where appropriate and e) other matters that the court may deem relevant such as a date for filing a Note of Issue, and a closure date for dispositive motions.  Finally, at that time the court will schedule a compliance conference at which time the parties are to return to court.

A preliminary conference can be scheduled by the court at any time sua sponte.  but it is most often scheduled at the request of a party upon the filing of such request along with a request for judicial intervention ("RJI"), in a case which has not previously been assigned to an IAS judge.  Pursuant to subdivision (b), the conference shall be scheduled not more than 45 days from the date the request for judicial intervention is filed, unless the court orders otherwise.

The initiation of motion practice concerning discovery in unassigned cases was the impetus for the writing of this entry.  The most frequent scenario invloves a plaintiff that fails to serve discovery and/or a bill of particulars in response to demands that accompany a defendant's answer.  In which case, the apparently uninformed defendant ultimately resorts to a motion to compel a response under CPLR 3124 and/or 3042(c).  The foregoing motion practice is an imprudent use of both the attorney's time and client's resources.  Pursuant to Trial Court Rule 202.8(f), the aforestated motion will be procedurally converted into a preliminary conference which, in accordacne with section 202.12, must be scheduled for a date no more than 45 days after the chosen motion return date.

Accordingly, where the motion is propounded instead of the service and fliling of a request for a PC and RJI, the attorneys for the moving defendant will have advanced plaintiff's cause by incurring the cost of the RJI, in addition to an unnecessary motion filing fee.       

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