Hon. Brendan T. Lantry — Part 46 Rules

HON. BRENDAN T. LANTRY

IAS Part 46

71 Thomas Street, Room 103

New York, New York 10013

I. Contact Information

a. Part Clerk: Bing Zhao (sfc-part46-clerk@nycourts.gov)

b. Part 46 E-mail: (sfc-part46@nycourts.gov)

c. Principal Law Clerk: Lindsey DeMaria, Esq. (ldemaria@nycourts.gov)

d. Assistant Law Clerk: Jacob Naim, Esq. (jnaim@nycourts.gov)

e. Courtroom: (646) 386-3279

II. Correspondence with the Court

a. Ex parte communications are strictly prohibited. Do not contact the Court via e-mail,

telephone, or any other means of communication unless all parties participate in the

communication.

b. All correspondence directed to the Part Clerk shall be copied to all other attorneys or

unrepresented parties in the action. No attorney or unrepresented party shall discuss the merits

of their case via e-mail or telephone with the Part Clerk.

c. Do not upload correspondence or other documentation to NYSCEF with the intention of

receiving a response from the Court. If you wish to contact the Court in accordance with the

rules set forth herein, please refer to the contact information listed above.

d. No party represented by an attorney shall contact the Court, unless expressly directed to do so

by the Court.

III. Discovery/Conferences

a. All conferences will be held on Wednesdays beginning at 9:30 a.m.

b. Preliminary Conferences

i. Physical or virtual appearances are not required for Preliminary Conferences, unless

expressly told to appear by the Court.

ii. The Part Clerk will circulate a blank Preliminary Conference Order (PCO) form via e-mail

in advance of the scheduled conference date. Parties must submit a proposed PCO via email

to the Part Clerk, in lieu of an appearance, no later than 3:00 p.m. the day prior to the

scheduled appearance date. Failure to submit by the deadline will require an in-person

appearance on the scheduled conference date.

iii. Only reasonable dates for holding any depositions or responding to discovery demands will

be permitted.

iv. The proposed PCO must leave blank the spaces for the Compliance Conference date and

Note of Issue filing deadline.

v. Each PCO will be reviewed, amended (if necessary) and so-ordered by the Court (if

approved). Do not file a proposed PCO via NYSCEF. The so-ordered document will be e-

filed.

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vi. If the parties cannot agree as to what terms should be included in the PCO, the parties must

advise the Court via email correspondence by 3:00 p.m. the day prior to the scheduled

appearance date so that the Court can arrange for an in-person conference with the parties.

vii. If the parties request an in-person conference for any other reason, please advise the Court

by 3:00 p.m. the day prior to the scheduled appearance date.

c. Compliance Conferences

i. Physical or virtual appearances are not required for Compliance Conferences, unless

expressly told to appear by the Court.

ii. The Part Clerk will circulate a blank Compliance Conference Order (CCO) form via e-mail

in advance of the scheduled conference date. Parties must submit a proposed CCO via

email to the Part Clerk, in lieu of an appearance, no later than 3:00 p.m. the day prior to

the scheduled appearance date. Failure to submit by the deadline will require an in-

person appearance on the scheduled conference date.

iii. Only reasonable extensions of time for holding any depositions or responding to discovery

demands will be permitted.

iv. The proposed CCO must leave blank the spaces for the Status Conference date and Note

of Issue filing deadline.

v. Each CCO will be reviewed, amended (if necessary) and so-ordered by the Court (if

approved). Do not file a proposed CCO via NYSCEF. The so-ordered document will be e-

filed.

vi. If the parties cannot agree as to what terms should be included in the CCO, the parties must

advise the Court via email correspondence by 3:00 p.m. the day prior to the scheduled

appearance date so that the Court can arrange for an in-person conference with the parties.

vii. If the parties request an in-person conference for any other reason, please advise the Court

by 3:00 p.m. the day prior to the scheduled appearance date.

d. Status Conferences

i. In-person appearances are required for Status Conferences.

ii. The parties are required to confer prior to the scheduled conference date regarding any

outstanding discovery matters.

iii. The Part Clerk will circulate a blank Status Conference Order (SCO) form via e-mail in

advance of the scheduled conference date. The parties are directed to prepare a draft SCO

prior to the scheduled appearance, inclusive of any terms to which the parties agree. Please

either provide the Court with the draft SCO via e-mail prior to the scheduled appearance

or be prepared to provide same to the Court at the scheduled appearance.

iv. Please note that providing a SCO via e-mail in advance of the scheduled appearance does

not relieve the parties of the requirement that they must appear in-person at the conference.

e. At any time during the litigation, the parties have leave to contact the Court with a request for

a conference with the Court. The request should be made by contacting the Part Clerk via e-

mail.

f. Authority. Counsel attending the conferences are expected to be familiar with the case and

have authority to discuss and stipulate to resolve all disclosure issues. Appearances by counsel

without authority may be deemed a default.

g. Adherence to Schedules. Strict compliance with all discovery orders is required. See Kihl v.

Pfeffer, 94 N.Y.2d 118 (1999). Unexcused or unjustified failure to comply with deadlines fixed

by the court, including those set out in PCO, may result in an award of costs, conditional or

otherwise, or the imposition of another penalty authorized by CPLR § 3126. No extensions of

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deadlines set forth in a PCO, CCO or SCO shall be allowed except with permission of the court

for good cause shown.

h. Failure to Appear. Upon a party’s second failure to appear for a conference, the case may be

dismissed or non-appearing party’s pleading stricken. Any motion to vacate such default must

fulfill the requirements of CPLR § 5015.

IV. Motions

a. Part 46 is a paperless part. Do not file working copies of motion papers unless expressly

directed by the Court.

b. Affidavits of Service. All movants must make certain that an affidavit of service is filed via

NYSCEF. Without a proper affidavit of service, relief will be denied.

c. Discovery motions

i. The parties may not file a motion relating to discovery without compliance with 22

NYCRR §§ 202.7 and 202.20-f.

ii. In addition, the parties must request a conference with the Court prior to filing a motion

pertaining to discovery. If the party believes such conference would be futile, counsel may

also request leave to file the motion without a conference

iii. It is within the Court’s discretion to hold a conference or grant leave to move without

conducting a conference first.

iv. If leave to make a discovery-related motion was granted by the Court, the affirmation of

good faith shall state precisely when and by whom it was granted leave to file the motion.

d. Summary Judgment motions

i. All summary judgment motions must be made no later than 60 days after filing the Note

of Issue. There are no exceptions without leave of Court.

ii. In the notice of motion or early in the affirmation in support, please state the date the Note

of Issue was filed and that the motion is timely.

iii. Absent good cause for late filing, a late motion may be denied, even if your adversary does

not object.

iv. Discovery must continue during the pendency of a summary judgment motion, unless good

cause is shown for a stay.

e. Orders to Show Cause

i. Pursuant to Uniform Civil Rules for the Supreme Court and the County Court § 202.8-d:

“[m]otions shall be brought on by order to show cause only when there is genuine urgency,

a stay is required, or a statute mandates so proceeding.”

ii. Temporary Restraining Order (TRO). If a party seeks a temporary restraint in an Order

to Show Cause, they MUST provide proof that their adversary was notified about the

application and the time, date and manner that the application will be presented for

signature. The court may, in its discretion, schedule a hearing on the TRO application

virtually or set a deadline to submit written opposition to the TRO request.

iii. Ex parte office. All Orders to Show Cause must first be processed by the Ex Parte Motion

Office. A movant should first contact that office to ensure that the Order to Show Cause

has been processed and submitted to chambers before inquiring with the Part about the

status of the Order to Show Cause.

iv. No reply. Absent advance permission of the court, reply papers shall not be submitted on

orders to show cause.

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f. Letter motions are prohibited and will not be considered.

V. Oral Arguments

i. Oral arguments will be held on Wednesdays beginning at 9:30 a.m.

ii. In-person appearances are required for oral arguments.

iii. If oral argument is requested, the requesting party should include “Oral Argument

Requested” next to the caption in the moving / opposing papers. Prior to the return date,

requests for oral arguments can also be directed to the Part Clerk and Law Clerks via e-

mail.

iv. Notwithstanding the above, motions will be scheduled for oral argument only at Justice

Lantry’s discretion.

v. The Part Clerk will contact the parties to schedule oral arguments.

vi. Failure to appear for scheduled oral argument may result in denial of the motion or a default

judgment.

vii. For non e-filed cases, parties are strongly encouraged to go to www.nycourts.gov or

https://iapps.courts.state.ny.us.webcivil and click on e-Track to register.

VI. Adjournments/Scheduling

a. A request for an adjournment of a conference or motion appearance must be made at least 48

hours in advance, absent exigent circumstances, and must indicate whether all parties consent

to the adjournment.

b. Any request to adjourn a conference or adjust a motion schedule must set forth a valid reason

for the adjournment/extension request and must be so-ordered.

c. Motion Adjournments. Adjournments of motions are to be addressed to the Motion Support

Office unless the parties are seeking to adjourn a motion submission date more than 60 days

after the original return date. In that case, the stipulation will need to be so ordered, and the

parties must appropriately file the stipulation on NYSCEF. The stipulation must be e-mailed

to the Part Clerk.

d. Disputes in Adjournment Requests. If a dispute arises concerning a request for an

adjournment, the requesting party is to e-mail the Part Clerk with all parties copied. Requests

for adjournments not on consent made less than 48 hours before the scheduled date may not

be considered. Unless the Court instructs otherwise, counsel must appear on the scheduled date

to make an oral application for the adjournment.

VII. Trials

a. Pre-Trial Conference.

i. Upon assignment to Part 46 for trial, the Court will schedule a pre-trial conference as soon

as practicable.

ii. At the pre-trial conference, the attorneys who appear must be knowledgeable of the case

and must have authority to enter binding stipulations.

iii. At a pre-trial conference, the parties shall alert the Court of the following:

1. The status of the parties’ settlement discussions, if any;

2. A proposed trial schedule and witness list;

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3. Necessary court-ordered subpoenas;

4. Any evidentiary issues that should be addressed before trial;

5. The need for an interpreter;

6. Any other special needs.

b. Settlement Discussions. The Court may require representatives of insurance carriers, or other

persons having an interest in any settlement, to appear in Court or to be available by telephone,

as the Court deems appropriate. Failure of such person to appear pursuant to an Order, whether

in writing or on the record, may be required to show cause why they should not be held in

contempt, and also may be subject to sanctions, as set forth in Part 130 and CPLR § 3126.

c. Motions in Limine. Motions in limine shall be submitted as directed by the Court at the pre-

trial conference. Motions in limine shall be uploaded to NYSCEF and e-mailed directly to

Justice Lantry’s law clerks.

d. Scheduling.

i. During trial, unless otherwise directed by the Court, all attorneys must be present in the

courtroom by 9:15 a.m. The morning session will run from 9:30 a.m. to approximately

12:55 p.m. The lunch recess will be from 1:00 p.m. to 2:00 p.m. Counsel must return to the

courtroom by 2:05 p.m. The afternoon session will run from 2:15 p.m. to approximately

4:40 p.m.

ii. Because of the unique nature of the building at 71 Thomas Street, no one is permitted to

remain on the floor during the lunch hour.

iii. The Court requires the party who is presenting their case to have witnesses available to

testify in the morning and afternoon sessions during each scheduled trial day. The Court

also may direct other parties to produce their witnesses out-of-turn.

e. Exhibits. Counsel shall pre-mark all exhibits in the order in which they intend to introduce

them at trial. Plaintiffs will number their exhibits; defendants will letter their exhibits. On the

first day of trial, each party will provide the court reporter with the exhibits to be officially

marked.

f. Subpoenaed Records. It is the responsibility of the attorneys to ensure that subpoenaed

records have arrived in the Subpoenaed Records Room. Under most circumstances, the court

officer assigned to Part 46 will retrieve the subpoenaed records and deliver them to the

courtroom.

g. Stipulations. Counsel are encouraged to stipulate to undisputed facts and to the admissibility

of clearly admissible documents and records.

h. Depositions. A copy of deposition transcripts intended to be used at trial must be made

available for the Court’s reference as needed. The deposition transcript should be marked as to

all anticipated objections that counsel intends to make to deposition questions or answers.

i. Objections and Arguments. Speaking objections, except to the extent permitted below, are

not permitted in the presence of the jury. To make a trial objection, counsel should stand and

saying the word “objection,” and, only if it is possible without suggesting a response to the

witness, counsel also may briefly state the grounds for the objection. If further argument is

required, counsel should ask permission to approach the bench. Exceptions to trial rulings are

not necessary, nor are they permitted. Upon request, counsel always will be given the

opportunity to make a full record outside of the jury’s presence. To preserve the record, counsel

must make timely objections, including during opening and closing arguments.

j. Certifying Experts. The Court does not certify witnesses as experts. Upon laying the

foundation for admissibility, the witness may offer opinion testimony, subject to objections.

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k. References to Insurance Coverage. All witnesses should be instructed, prior to being called

to the witness stand, that they may make no mention of insurance during their testimony,

whether on direct or cross-examination.

l. Adverse Witnesses. If an adverse witness is called on a party’s case-in-chief, such as the

plaintiff calling a defense witness, then the defendant (in the example) shall elect to examine

that witness either on cross-examination or recalling the witness on its case-in-chief, not both.

In either case, leading questions of the attorney’s client, employee, or former employee shall

not be permitted unless the witness has been deemed hostile.

m. Cross Examination. Prior to taking the stand, witnesses should be advised that cross-

examination questions calling for a yes or no answer should be answered accordingly, and the

witness also may respond that the witness cannot answer the question with a yes or no.

n. Courtroom Acoustics. Counsel and the parties should be aware that the jury room is not

soundproof. Any matters to be addressed outside of the jury’s presence should be raised at the

bench or in chambers.

o. Courtroom Comments and Demeanor. All remarks should be directed to the Court, not to

opposing counsel.

p. Findings of Facts and Conclusions of Law. For nonjury trials, the parties shall submit

proposed findings of facts and conclusions of law within 10 calendar days of the close of the

record, unless otherwise directed by the Court.

q. Proposed Jury Charges, Verdict Sheets and Charge Conferences.

i. The parties shall submit proposed preliminary jury charges, proposed verdict sheets and

final jury charges, with Pattern Jury Instruction (PJI) citations, no later than 24 hours before

the commencement of trial.

ii. All proposed jury charges and verdict sheets are subject to amendment by the Court.

iii. All proposed jury charges and verdict sheets shall be emailed to Justice Lantry’s Law

Clerks in Word format. Amendments to the final jury charges are permitted at the final

charge conference. Counsel will be given the opportunity to make any objection or take

any exception, on the record, to the court’s ruling on the final jury charges and verdict

sheet.

iv. If counsel relies on a PJI without change, it should be referred to by PJI number and topic.

If any changes to the PJI are suggested, counsel must submit the full text with all proposed

changes red-lined in Word format by email to Justice Lantry’s law clerks. Counsel shall

cite appropriate legal authority in support of suggested non-PJI charges or suggested PJI

modifications.

v. Unless a marshaling of the evidence is waived, counsel should be prepared, at the final

charge conference, to provide the court with the proposed facts that counsel believes are

supported by the record.

r. Exhibits Post-Trial. Counsel must retrieve their trial exhibits within 7 days of the trial’s

conclusion. Any exhibit left with the Court for more than 14 days is subject to destruction

without any further notice.

VIII. Items to be “So-Ordered”

a. Proposed “so-ordered” stipulations, subpoenas, transcripts, orders, judgments, and any other

documents requesting the Justice’s signature shall be uploaded to NYSCEF. The parties shall

promptly notify the Park Clerk of such filing and request that same be “so-ordered.”

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IX. Death of a Party

a. If an attorney learns that his or her client has passed away, the attorney shall forthwith notify

the Part Clerk of the client’s death and the date of death, if known, and upload the client’s

death certificate to NYSCEF when available.

b. If an attorney learns that an adversary of his or her client has passed away and has yet to be

informed of that fact by the adversary’s attorney, that attorney shall forthwith notify his or her

adversary’s attorney and the Part Clerk thereof and provide the Part Clerk with the date of

death, if known.

c. Upon the death of a party, the action is automatically stayed by operation of law as of the date

of death, and any proceedings taken or orders issued after the date of death are nullities. The

court nonetheless will issue an order memorializing the stay.

X. Discontinued Actions/Withdrawn Motions. The parties have an ongoing obligation to notify

the Court if a motion has been withdrawn or if a matter has been settled, discontinued, stayed,

or otherwise disposed. Notification should be made via email to the Part Clerk, with the

appropriate stipulation filed via NYSCEF.

XI. The Court reserves the right to adjust these rules in the interest of justice or for good cause

shown.

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