22 NYCRR 202.17 Revisited

Just a brief update to begin revisiting my interest in blogging and in particular with regards to sharing experiences in civil litigation.  Recently I was confronted with an adversary who vehemently denied any duty to disclose the treating and/or examining medical providers in a bodily injury suit any more than thirty days before trial pursuant to CPLR 3101(d)(1)(i).  However, in Hamilton v. Miller, et al., (23 NY3d 592 [2014] the the Court of Appeals clarified the interplay between the Civil Practice Law & Rules and the Uniform Rules to the extent that the narrative reports by the treating and/or examining medical providers setting forth the injuries alleged, diagnostic testing that will be introduced at trial, and prognosis must be disclosed no fewer than 20 days before the independence physical examination to be held upon notice by the adverse party pursuant to CPLR 3121.  The judge’s law secretary entered the pertinent operative language from section 202.17 into the order and the dispute was resolved in the client’s favor.  So-Ordered.  

Form of Papers, Supreme Court, Kings County, Uniform Civil Term Rules

I was reviewing written submissions and waiting for the second call of the motion calendar on a multi-party Labor Law Article 7 and 10 suit that the firm was defending in Supreme Court, Kings County, IAS Part 41, when the attorney representing a third-party defendant returned to the bench seating in a particular fit of pique.  She exhorted that she had just schlepped back from - "you know, that room across from CCP where you go to file an Order to Show Cause" and the clerk had refused to accept the OTSC because it was not prepared with protruding exhibit tabs.  "Could you imagine?!?"  Furthermore, the attorney was more haughty that the clerk wouldn't provide any latitude on what was a manifestly picayune insistence on a trivial matter.  Right? 

 

Entirely to the contrary, it is rudimentary that the offending papers should never have been prepared as such or left the attorney's office in that condition on an ill-fated journey from Long Island to the Kings County Supreme Court.  CPLR 2101 provides the requirement for the form of papers and must also be read in conjunction with the Local Rules for the particular judicial district and county.  Kings County Supreme Court Uniform Civil Term Rules, Part A, provide in pertinent part that:   Motions, orders and other filed papers shall be indexed with protruding tabs. Clerks are required (emphasis mine) to reject papers that do not have protruding exhibit tabs, except papers in matrimonial cases and papers filed by pro se litigants.  The rule notwithstanding, it should seem patently obvious to the movant that, if that party indeed has the proof annexed to the application to warrant the adverse party to show cause why the application should not be granted, such proof should be indexed and easily identified with protruding tabs.     

Attorney Secure Pass Online Renewal

Since October 22, 2001, attorneys entering many facilities of the state court system have been required to pass through magnetometers as well as x-ray examination of any briefcases, bags, boxes or other containers.  In April 2002, the New York State Unified Court System began issuing an attorney identification card known as the "Secure Pass."  The Secure Pass permits attorneys to bypass the aforementioned security measures in certain state courts while a high level of court security is maintained.  Accordingly, the Secure Pass provides convenience to attorneys who may be entering the facilities on a daily basis while additionally reducing the burden on the state court officers.  Although based upon experience there are exceptions where the Secure Pass is not honored and the attorney must be subject to search such as in the federal courts, New York County Surrogate's Court, and the Appellate Divisions for the First and Second Departments.

 

Secure Pass cards were previously valid for two years and are now valid for five years.  The procedure for renewal has also been amended to permit electronic filing effective July 1, 2015.  Attorneys may now renew their Secure Pass through the state Unified Court System web site.  Further instructions and information can be found at http://www.nycourts.gov/attorneys/registration/securepass.shtml

Kings County Supreme Court CCP

The Centralized Compliance Part (CCP) of the Supreme Court, Kings County is where all civil litigation must pass.  Case conferences as well as discovery motions are heard in the Part which makes for two lengthy calendars, a crowded courtroom, and sometimes orders that are not issued until afternoon.  The mandatory calendar call is not held until 10:45, and the default calendar at 11:45.  If the parties cannot resolve a discovery dispute among themselves the matter will be heard by a court attorney referee who will ultimately refer the matter to the Individual Assignment Part judge if a resolution cannot be mediated.  In the event that the matter is referred to the IAS Part, it is unlikely that it will be heard and decided that day but will instead be sua sponte scheduled for an available return date in accordance with the given IAS Part calendar.      

The link to the Kings County Supreme Court, Civil Term Rules is provided below.  The rules for CCP are found within section E. 

https://www.nycourts.gov/courts/2jd/kings/civil/KingsCivilSupremeRules.shtml#CCP

      

Daylight Savings Time Ends

On Sunday, November 1, at 2:00 a.m., the clocks are turned back one hour for the end of Daylight Savings Time (DST).  However, there's rumored to be a movement gaining momentum within the legal profession to have DST end at 5:00 p.m., on the preceding Friday.  As with all things constructed by attorneys, there's a logical reason for this cause.  Having DST end during a workday would of course result in a gain of one billable hour; and, perhaps once and for all irrefutably prove to clients beyond a reasonable doubt that it is in fact possible for an attorney to verifiably bill 25 hours in one day. 😏

Expansion of Mandatory E-Filing in New York County

By Administrative Order mandatory e-filing in New York County was expanded on February 19, 2013.
  
http://www.nycourts.gov/courts/1jd/supctmanh/EF-Mandatory-Notice-5713.pdf

Third Department refuses to extend Labor Law 240 to object at ground level

In Oakes v. Wal-Mart Real Estate Bus. Trust 2012 NY Slip Op 05694, Decided on July 19, 2012, Appellate Division, Third Department, plaintiff sustained serious bodily injury when he was struck by a building truss at ground level.  Finding that plaintiff was exposed to the ordinary dangers of a construction site and not the extraordinary elevation risks, the appellate court refused to extend Labor Law section 240(1) to these facts.  Notwithstanding the substantial weight of the truss and the significant force generated as it fell due to the force of gravity, however, there was no elevation differential present here, let alone a "physically significant elevation differential" (Runner v New York Stock Exch., Inc., 13 NY3d at 603). The truss and plaintiff were both at ground level, and they were either approximately the same height or plaintiff was slightly taller than the truss. Plaintiff's injury occurred after the truss was rendered unstable by an object that hit it horizontally — the bar joist, which shifted sideways on the forklift and pushed the truss into plaintiff (see Toefer v Long Is. R.R., 4 NY3d 399, 408 [2005], supra). Under these circumstances, plaintiff was exposed to "'the usual and ordinary dangers of a construction site, and [not] the extraordinary elevation risks envisioned by Labor Law § 240 (1)'" (Ortiz v Varsity Holdings, LLC, 18 NY3d at 339, quoting Rodriguez v Margaret Tietz Ctr. for Nursing Care, 84 NY2d at 843; accord Toefer v Long Is. R.R., 4 NY3d at 407; see Narducci v Manhasset Bay Assoc., 96 NY2d at 269-270; Melo v Consolidated Edison Co. of N.Y., 92 NY2d at 911; Davis v Wyeth Pharms., Inc., 86 AD3d at 908-910; Mueller v PSEG Power N.Y., Inc., 83 AD3d 1274, 1275 [2011]; cf. Kropp v Town of Shandaken, 91 AD3d 1087, 1089-1090 [2012]). Accordingly, Supreme Court properly dismissed plaintiffs' Labor Law § 240 (1) claim.