Hon. Eric Schumacher — Part 13, 23 Rules

Part 13 Rules

Hon. Eric Schumacher, J.S.C., Coordinating Judge

New York City Asbestos Litigation (NYCAL)

Supreme Court of the State of New York

New York County, Civil Term

71 Thomas Street Room 304

New York, New York 10013-3821

Principal Law Clerk

Joshua D. Demopoulos, Esq.

Assistant Law Clerk

Shivali Srivastava, Esq.

Part Clerk

Charlene Philip, SFC-Part13-Clerk@nycourts.gov, (646) 386-3736

I. Overview

A. The Supreme Court’s Uniform Rules of the Justices apply in this part. The

Case Management Order (CMO), et seq., applies in this part. Where the Part

13 Rules supplement or differ from either the Uniform Rules or the CMO,

unless otherwise indicated, the Part 13 Rules shall control.

1. When citing the Part 13 Rules, use this format: Part 13 R. III(F)(3)(a).

B. All appearances before the court shall be in person.

1. The court encourages the participation in court proceedings of

attorneys who have significantly contributed to the underlying matter

but do not ordinarily appear or speak in court.

2. Nonparticipating observers of court proceedings shall not appear in

the courtroom in person but may stream the proceedings here.

3. All parties must appear at all scheduled conferences but may appear

by a single counsel representing the interests of multiple parties.

4. Oral argument will be scheduled separately from conferences and on

notice provided to all parties.

II. Conferences

A. You must appear for all conferences with access to all case filings. You

must either have any available authority, or have immediate access to those

with authority (adjuster, national counsel, party, etc.), to resolve the case.

1. Every attorney appearing on behalf of a party at a conference must be

fully prepared to discuss the details of the underlying action and have

a working knowledge of any material issues. This includes attorneys

who are of counsel, “per diem,” junior associates, etc.

2. Attorneys must be able to provide information about any prior,

pending, or future appeals or motions, and about settlement history.

3. Failure to comply may result in a default (see 22 NYCRR § 202.1[f]).

B. A party that fails to appear within 1.5 hours of the scheduled conference

time may have a default judgment entered against it or have the case

dismissed based upon the failure to appear (see 22 NYCRR § 202.27).

C. Any request for the adjournment of a conference must be submitted at least

48 hours prior to the scheduled appearance by stipulation both filed to

NYSCEF and emailed to the part clerk.

1. The court will not consider any requests to adjourn made fewer than

48 hours prior to the scheduled conference absent a real emergency.

2. Failure to appear by any party without prior approval of the court may

result in a default being entered against it.

D. All pretrial conferences scheduled in Part 13 are for both pretrial and

settlement purposes. The outcome of the pretrial conference may be a

referral for jury selection, assignment of a judge for trial, etc. Part 13 is the

central trial assignment part for NYCAL.

E. Cases referred for jury selection are calendared in Part 13 Jury Selection.

F. All parties must jointly email the part clerk no later than one week prior to

the scheduled jury selection date. The parties shall advise the court in that

email as to the status of all aspects of the matter, including settlement. All

jury selection dates are final.

III. Motions

A. For all motions pending in the submissions part, you must follow that part’s

rules regarding adjournments, scheduling, and withdrawals.

1. If a motion is resolved after it is fully submitted, the movant shall

immediately inform the court by filing and emailing to the part clerk a

stipulation withdrawing or otherwise resolving the motion.

B. This is a paperless e-filing part, meaning you need only e-file your motion

submissions to have them considered. NYSCEF is used for all filings.

C. You must file all documents under separate document numbers and give

them meaningful names. This includes, but is not limited to, notices of

motion, affidavits, affirmations, memoranda of law, and exhibits.

1. You shall file each exhibit under its own NYSCEF document number.

The first page of each filing must bear the index number of the case

and the expected motion sequence number, where ascertainable, of

the motion in the upper right-hand corner of the page.

2. You shall format all papers submitted to this part in compliance with

the form of papers as set forth in 22 NYCRR § 202.70(g) Rule 6, “Form

of Papers” of the rules of practice of the commercial division.

a. Hyperlinking is required (see id. at [c][1]).

3. You may not file omnibus affidavits, affirmations, memoranda of law,

etc. Do not submit papers intended to be applicable to multiple

motions (e.g., a party submitting the same affirmation in motion seq.

nos. 001–003 must file it once in each sequence number, labeling

each accordingly). Exhibits are exempt if you hyperlink any citation to

such a document. The court strongly prefers that only one copy of

any given exhibit be filed to NYSCEF.

4. All substantive legal arguments, including references to statutes and

case law, shall be made in memoranda of law, only, which shall be

filed separately from any affirmations or affidavits. Legal arguments

are not to be included in affirmations. Do not cite cases in

affirmations. Instead, file a memorandum of law.

5. Each deposition transcript shall be submitted as a separate exhibit.

Parties shall include a word index with all transcripts. Deposition

transcripts shall be labeled to indicate both their exhibit

number/letter and to identify the deposed individual.

6. Any reference to deposition testimony must cite to the exact page

and line numbers relied upon rather than merely attaching the entire

transcript or “relevant portions.”

7. Any reference to any other voluminous exhibit annexed to a motion

must include pinpoint citations.

a. For example, a citation to physical therapy notes contained

within an exhibit of medical records could be identified as

“see physical therapy notes dated xx/xx/xx, exhibit B, at 9.”

8. Any piece of media, redacted exhibit, etc. that cannot ordinarily be

filed to NYSCEF must be submitted to the court electronically by

emailing a download link to the part clerk. Physical media such as

USB drives are not accepted and will be destroyed if received. The

media must relate to a placeholder exhibit page and be addressed in

the appropriate affirmation, etc., so that it is in admissible form.

9. The failure to comply with any rule in this section may result in the

rejection of the entire motion submission of the offending party.

D. Applications for admission pro hac vice in NYCAL are presumptively

unopposed and shall be emailed to the Clerk of Part 13 with a request to so

order. Each application must include, in separate PDFs: (1) an affidavit of

support from a member of the Bar of the State of New York; (2) an affidavit

from the applicant; (3) a recent certificate of good standing from the

applicant; and, (4) a proposed order. The applicant’s affidavit must: (1)

advise the court as to the total number of times the applicant has applied to

be admitted in New York pro hac vice and how many times the application

has been granted and/or denied; (2) state whether the pro hac vice applicant

has ever been or is presently the subject of a disciplinary proceeding; and (3)

certify that the applicant has read and will abide by the Part 13 Rules.

1. All present and future filed pro hac vice motions are deemed denied.

E. Motions brought by Order to Show Cause (OSC):

1. Any questions regarding the procedure for e-filing proposed orders to

show cause must be directed to the ex parte office, (646) 386-3125.

2. Any party seeking immediate injunctive relief upon the signing of the

OSC may schedule a time to appear in person before the court to

present the OSC either with all affected adversaries or bearing proof

that all affected adversaries were properly noticed.

3. The court will either sign or decline to sign an OSC transmitted to it

from ex parte. Unless otherwise directed, signed OSCs are returnable

to the part on submission, no appearance.

4. Unless otherwise directed, opposition papers must be filed at least

one business day prior to the return date of the motion. No reply.

5. OSCs seeking relief pursuant to CPLR 321(b)(2) must set forth that

service of the papers on the client to be served shall be made by

personal service pursuant to CPLR 308, 311, etc. Substituted service

pursuant to Business Corporation Law § 306, etc. may not be used.

F. Summary Judgment Motions

1. All summary judgment motions must be filed within 30 days of the

filing of the note of issue.

2. Motions for summary judgment prior to the filing of the note of issue

are strongly discouraged (see CPLR 3212[f]).

3. Any application for summary judgment on consent (“USJM”) that is

fully executed by the parties to be bound shall have the same force

and effect as a voluntary stipulation of discontinuance. If the

outcome is with prejudice this must be explicitly stated. The USJM is

effective once filed, whether to NYSCEF or, in a paper case, with the

county clerk, and does not require so ordering.

a. Any emailed request to so order a USJM, stipulation of

discontinuance, etc. is and shall be deemed denied.

Applications to discontinue requiring an order of the court

must be made by motion on notice (see CPLR 3217[b][2]).

G. Any requests for adjournments of oral arguments must be made at least five

business days prior to the scheduled appearance by stipulation both filed to

NYSCEF and emailed to the part clerk.

1. The court will not consider any requests for an adjournment made

fewer than five business days prior to the scheduled oral argument

absent a real emergency.

2. All oral arguments before this court are scheduled upon the court’s

determination that oral argument is necessary and indispensable for

motion resolution. Accordingly, the failure of any party to appear at

the oral argument may result in the motion being decided against it.

H. This court may refer any motion to a trial judge (e.g., a motion in limine).

IV. Communications

A. You may email the part clerk as indicated in these rules or for the purpose of

seeking adjournments.

B. If a motion has been withdrawn, resolved, etc., or the entirety of a case has

been settled or discontinued, the responsible party, or parties, must

immediately notify the part clerk by email as appropriate.

C. You may email the part clerk to schedule an emergency appearance on an

OSC involving a request to stay or for a temporary restraining order.

D. You must email the part clerk all requests to so order together with a copy of

the filed document (e.g., a proposed order as to the release of medical

records, a compromise order). Proposed orders on motions are exempt.

Mere NYSCEF filing is insufficient, and such is not before the court. All such

requests must contain the appropriate language, including any directives as

to the clerk’s office, etc., where required, else be rejected.

E. Other or further types of email to the part clerk are not permitted without

leave of court.

F. Other types of correspondence with the court such as letters, whether filed

or in paper, or in-person paper submissions of any type are not permitted.

1. For the procedure concerning the submission of proposed orders for

so-ordering, refer to Part 13 R. IV(D).

G. Ex parte communications with the court of any type are not permitted.

H. The court does not accept faxes and does not have a fax number.

I. Calls to the part clerk are strongly discouraged except in the case of a real

emergency. When in doubt, use email.

J. Calls or emails to chambers for any reason are not permitted without leave

of court. The court does not accept arguments by email, letter, etc.

K. Virtual meetings, conferences, etc. are not available, excepting pro se/ADA

accommodations made by the court as appropriate.

L. Participating in streamed proceedings does not constitute an appearance

before the court. Participants shall not be seen or heard by the court.

M. You are strongly encouraged to sign up for eTrack for calendar updates.