Hon. John J. Kelley — Part 56 Rules

Hon. John J. Kelley

Mr. Lawrence A. Goldberg, Principal Law Clerk

Email

(LAGOLDBE@NYCOURTS.GOV)

Ms. Hadiatou Barry, Assistant Law Clerk

I.

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Email (HBARRY@NYCOURTS.GOV)

Chambers Tel No.

(646) 386-5318

Courtroom

71 Thomas Street, Room 204, New York, NY 10013

Courtroom/Part Clerk Tel. No.

(646) 386-5281

Part Clerk Email address

SFC-Part56-Clerk@nycourts.gov

PART 56 RULES

Contacting the Court

a. Disputed issues arising in the course of an action shall not be litigated via letter

or email, but only via a properly noticed motion or at a duly scheduled

conference, unless the court directs otherwise.

b. PARTIES SHALL NOT CONTACT CHAMBERS DIRECTLY, INCLUDING THE JUSTICE’S

LAW CLERKS, UNLESS DIRECTED TO DO SO. No attorney or unrepresented party

shall send letters or emails to the court, unless expressly permitted by these

Part Rules or requested by the court, except that attorneys and unrepresented

parties may write or email the Part Clerk at SFC-Part56-Clerk@nycourts.gov (i)

with respect to scheduling or logistical issues, (ii) to inform the Part Clerk that a

motion is being withdrawn or that an action has been settled or discontinued,

or (iii) to request a ruling in the course of a deposition. No attorney or

unrepresented party shall discuss the merits of their case in emails or telephone

calls to the Part Clerk. No attorney or unrepresented party shall request legal

advice or guidance from the court, including from the Part Clerk or the Justice’s

law clerks. All letters or emails directed to the Part Clerk shall be copied to all

other attorneys or unrepresented parties appearing in the action.

Attorneys or unrepresented parties may telephone the Part Clerk only with

respect to scheduling or logistical issues, to inform the Part Clerk that a motion

is being withdrawn or that an action has been settled or discontinued, or with

respect to requests for rulings at depositions. If either the Justice or a law clerk

is available to consider the application for such a deposition ruling, the Part

Clerk shall forward the telephone call to the Justice or a law clerk.

c. No attorney or unrepresented party shall telephone chambers, including the

Justice’s law clerks, unless expressly directed to do so.

d. No party represented by an attorney shall call, write, email, or otherwise

contact the court, unless expressly directed to do so by the court. If a party is

represented by an attorney, only the attorney shall contact the court on behalf

of that party.

II. Motions

a. Until further notice, all motions shall be submitted and considered on papers

only, without oral argument, except motions to be relieved as counsel, which

shall be orally argued remotely via the Microsoft Teams conference application.

Attorneys who seek to move to be relieved as counsel shall, immediately after

they serve their motion papers, provide the court with their clients’ contact

information, including telephone number and email address, by emailing that

information to SFC-Part56-Clerk@nycourts.gov. The court may, however, upon

good cause shown, permit oral argument in other matters. Proof of good cause

shall include a showing as to why the papers alone are insufficient to apprise or

fully explain to the court the nature of the contested issues.

b. If the parties stipulate to adjourn the initial return date of a motion initiated by

notice of motion, or a special proceeding initiated by notice of petition, they

shall upload a signed written stipulation to the NYSCEF system and choose the

following designation from the drop-down menu: “stipulation-adjournment of

motion-submissions part-rm 130.” If the agreed upon return date is more than

60 days after the initial return date, the judge’s signature shall be required, but

the Motion Support Office will forward the uploaded stipulation to the court for

signature. There is no need for the parties to submit a separate stipulation

directly to the court for signature.

If one party seeks an adjournment of a motion or petition, but the other party

refuses to stipulate to the adjournment, the party seeking the adjournment may

submit a written request to the court by emailing it to SFC-Part56-

Clerk@nycourts.gov. If the court approves the request, it shall “so order” the written

application or shall issue an interim order adjourning the return date of the motion or

petition.

c. A motion or special proceeding shall only be initiated by order to show cause

where required by statute (see, e.g., CPLR 321[b][2], 5015[a]) or where

emergency interim relief is sought. All proposed orders to show cause shall

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include a provision for the service of responsive papers, with a space reserved

for the date of service, which shall be filled in by the court. In accordance with

Rule 13(b), section IV, of the Rules of the Justices of the New York County

Supreme Court, Civil Branch, no reply papers shall be permitted in connection

with motions or special proceedings initiated by order to show cause, except by

express permission of the court.

d. With respect to discovery motions, please refer to Section V(d), below.

III. Stipulations Other Than for Adjournments

a. Stipulations of discontinuance signed by attorneys for all parties and all

unrepresented parties in an action shall be uploaded to NYSCEF. Stipulations of

discontinuance that are signed by fewer than the attorneys for all parties and all

unrepresented parties shall be uploaded to NYSCEF and mailed or emailed to

the Part 56 Part Clerk with a request that the court “so order” the stipulation.

b. Stipulations to amend the caption in an action shall be uploaded to NYSCEF and

emailed to the Part Clerk with a request that the court “so order” the

stipulation. After the court “so orders” the stipulation, one of the parties, as

will be directed by the court in the so-ordered stipulation, shall, within 15 days

of the entry of the so-ordered stipulation, serve a copy of the so-ordered

stipulation upon the Trial Support Office by uploading it to NYSCEF under the

document title “SERVICE ON SUPREME COURT CLERK (GENL CLERK) W/COPY OF

ORDER” and shall separately file and upload a second copy of the stipulation

along with the notice required by CPLR 8019(c) on a completed Form EF-22

under the document title “NOTICE TO COUNTY CLERK CPLR 8019(C),”

whereupon the Trial Support Office and the County Clerk shall amend the court

records accordingly.

Parties are cautioned that the failure to serve a copy of the so ordered

stipulation upon the Trial Support Office and the County Clerk’s Office, or to

upload the notice required by CPLR 8019(c), will leave the caption unamended

in the court’s records.

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IV. So-Ordered Subpoenas

a. If an attorney or unrepresented party seeks a so-ordered subpoena, the

proposed subpoena shall be uploaded to NYSCEF and mailed or emailed to the

Part 56 Part Clerk with a request that the court “so order” the subpoena.

b. If the court signs the subpoena, the signed copy may be uploaded to NYSCEF,

and also may be emailed to the attorney or unrepresented party requesting it,

or shall be retrieved in the courtroom by that attorney or unrepresented party,

as the court directs.

V. Discovery Conferences and Disputes

a. Unless otherwise directed by the court, forms for preliminary conference

orders, compliance conference orders, and status conference orders

(collectively discovery conference orders) shall be provided by the court to the

plaintiff, who shall confer with the defendants, upon which the parties shall

agree upon the terms and contents of the order. The plaintiff shall be

responsible for filling out the proposed discovery conference order, leaving

blank the spaces provided for the next discovery order submission date and

note of issue filing deadline, and emailing the completed proposed discovery

order to the Part Clerk. The parties shall not upload any proposed discovery

conference order to NYSCEF.

b. If the parties cannot agree to the terms and contents of a discovery conference

order, they shall request a conference by contacting the Part Clerk. The Part

Clerk shall thereupon schedule a remote conference on the first available date

and provide the parties with a link to access the remote conference. When the

parties are directed by the court to submit a preliminary conference order,

compliance conference order, or status conference order by a date certain, they

shall adhere to the submission date directed by the court or shall request the

Part Clerk to extend the submission deadline.

c. If the court directs the parties to submit a proposed preliminary conference

order, it shall not be an objection to the preparation and submission of such

order that the plaintiff has yet to serve a bill of particulars. If that is the case,

the preliminary conference order shall specify a deadline for the service of the

bill of particulars.

d. Discovery disputes shall not be litigated via telephone, letters, or email, except

in the case of requests for rulings in the course of depositions. Rather, such

disputes shall be resolved via a remote conference or a properly noticed

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motion. In connection with discovery motions, attorneys shall familiarize

themselves with the provisions of 22 NYCRR 202.8(f) and 22 NYCRR 202.20-f(b),

to which the court strictly shall adhere. Participation in a remote conference at

which a disputed issue has been discussed will be deemed to constitute

compliance with 22 NYCRR 202.20-f(b).

e. If the parties initially cannot agree with respect to an item or items of discovery,

and schedule a remote conference with the court to discuss that item or items,

but resolve the dispute or disagreement prior to the conference date, they shall

contact the Part Clerk and cancel the conference.

f. Requests for rulings in the course of depositions shall be made as set forth in

Paragraph I(b), above.

VI. Using Microsoft Teams Remote Conference Application

a. After receiving a link from the Part 56 Part Clerk to access the Microsoft Teams

Remote Conference Application for a particular conference, the parties are

encouraged to test their computer link, video and audio connections, and

peripheral equipment at least 30 minutes prior to that scheduled conference to

insure that there will be no technical difficulties that could delay or

unnecessarily extend the length of the conference.

VII. Settlement Conferences

a. If the court issues an order denying a summary judgment motion in whole or in

part, it will schedule an initial in-person settlement conference with the parties

for a date shortly thereafter, usually within one or two weeks after the entry of

that order. In cases where the plaintiff has filed a note of issue, and no

defendant has moved to strike the note of issue within 20 days thereafter, and

no party has moved for summary judgment within 60 days thereafter, the

plaintiff shall, within 10 days of the lapse of that 60-day period, notify the Part

56 Part Clerk that the note of issue has been filed, upon which the court will

schedule an initial in-person settlement conference with the parties for a date

shortly thereafter, usually within one or two weeks after that notification.

b. At the initial pretrial settlement conference, which usually is of 30 minutes

duration, the plaintiff shall be prepared to make a formal demand, the parties

shall be prepared to schedule a future, two-hour mediation-style settlement

conference for a date prior to the commencement of jury selection, and the

parties shall be prepared to select a firm date for the commencement of jury

selection, which the court will thereupon schedule. The two-hour mediation-

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style settlement conference shall be scheduled for a date that will allow the

defendant to present the case to whatever insurance company, hospital, or

healthcare facility panel that needs to review the demand and the claim to be

able to formulate a settlement posture.

c. Prior to the two-hour mediation-style settlement conference, the parties shall

submit, to the Part 56 Part Clerk, a short written statement of the facts

underlying the action, and all parties shall inform the court of their estimation

of the full value of the action if liability is proven, with citations to appellate

precedent determining the fair and reasonable value of the injuries claimed by

the plaintiff, without set-offs for comparative fault or collateral sources.

d. In the case of an unrepresented party, the court will not speak separately to the

plaintiff and the defendants in the course of a settlement conference.

e. At the two-hour, mediation-style settlement conference, the court requires in-

person appearances not only by the parties’ attorneys, but (i) by the plaintiff

himself or herself, (ii) by a representative of the defendant’s insurance carrier

or, in the case of a self-insured defendant, by a person authorized by that

defendant to negotiate and settle the action, and, (iii) if consent from an

individual defendant is required by the relevant insurance policy before a claim

may be settled, and that defendant has withheld consent, by that defendant

himself or herself.

VIII. Trial Conference

a. The court will conduct a trial conference immediately before trial of every case.

In those instances in which the court has been assigned to preside over a trial

by the Administrative Judge a sufficient period of time prior to the scheduled

date of commencement of jury selection, the court will attempt to conduct an

initial conference as soon as practicable after the assignment to discuss

scheduling and other issues. In those instances in which the court is retaining,

for the purpose of trial, those cases that already had been assigned to it, the

court will schedule such a conference for a date approximately 3-5 business

days before the date scheduled for commencement of jury selection.

b. The attorneys who appear at the conference must be knowledgeable of the

case and must have authority to enter binding stipulations.

c. At any such trial conference, counsel shall bring with them all written

documents and items of demonstrative evidence that they wish to introduce

into evidence at trial, and a court reporter shall be present to mark stipulated

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items into evidence and shall mark, for identification, items as to which there is

no stipulation. At this conference, counsel for the parties shall alert the court

of:

i. The proposed schedule for the appearance of witnesses and any

scheduling conflicts;

ii. The need for an interpreter; and

iii. Any other special needs, (note that the Court does have certain

audio/visual equipment available, but not computer equipment that

may be employed by the parties);

iv. Necessary court-ordered subpoenas;

v. Any evidentiary issues that ought to be addressed before trial.

d. Counsel shall submit motions in limine and trial memoranda in writing to the

court as directed but, in any event, not later than the first day of jury selection.

Motions in limine shall not be uploaded to NYSCEF, but emailed directly to the

Justice’s law clerks.

e. Witnesses. Counsel shall provide to the court a list of potential witnesses in

order in which they intend to call them at trial, including expert witnesses.

Request for a missing witness charge should be made at this time.

IX. Trial

a. Unless otherwise directed by the Court, all attorneys must be present in court

by 9:15 A.M. The morning session will run from 9:30 A.M.to approximately 12:55

P.M. Lunch will be from 1 P.M.to2 P.M. Counselmust return to the courtroom by

2:05 P.M. The afternoon session will run from 2:15 P.M.to approximately 4:30

P.M. Because of the unique nature of the building at 71 Thomas St., no one is

permitted to remain on the floor during the lunch hour. The Court requires the

party who is presenting their case to have witnesses available to testify for the

morning and afternoon sessions of each day. The Court also may direct other

parties to produce their witnesses out-of-turn.

b. 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

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letter their exhibits. On the first day of trial, each party will provide the court

reporter with the exhibits to be officially marked.

c. 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 assigned court officer will retrieve the subpoenaed

records and deliver them to the courtroom.

d. Counsel are encouraged to stipulate to undisputed facts and to the admissibility

of clearly admissible documents and records.

e. Depositions. A copy of deposition transcripts intended to be used at trial should

be made available for the Court’s reference as needed. The deposition

transcript should be marked as to all objections that counsel intends to make to

deposition questions or answers.

f. 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 Section 3126.

g. Proposed Jury Charges and Verdict Sheets.

i. The parties shall submit proposed verdict sheets and requests to charge

(subject to amendment), citing the PJI sections, preferably before the

commencement of trial, but not later than the start of the second day.

ii. All proposed jury charges and proposed verdict sheets shall be emailed

to the Court (lagoldbe@nycourts.gov and hbarry@nycourts.gov) in an

editable MS Word (.doc or .docx) format. Amendments thereto shall be

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.

iii. If counsel relies on a Pattern Jury Instruction [PJI] without change, it

should be referred to by PJI number and topic, only. If any changes to

the PJI are suggested, counsel must submit the full text with all changes

red-lined in Word format by email to the Justice’s law clerks. Citations

to appropriate statutory or common law authority shall be given in

support of suggested non-PJI jury charges or suggested PJI

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modifications. Counsel should note that the Court has modified the

language of some PJI charges to make them more readable and

understandable. Counsel should review these modifications with the

Justice’s law clerks.

iv. 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.

h. Trial 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.

i. 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.

j. 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.

k. 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 they are deemed hostile.

l. 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 he/she cannot answer the

question with a yes or no.

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m. 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.

n. Courtroom Comments and Demeanor: All remarks should be directed to the

court, not to opposing counsel.

o. 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.

p. Counsel must retrieve their trial exhibits within seven days of the trial’s

conclusion. Any exhibit left with the court for more than fourteen days is

subject to destruction without any further notice.

X. Death of a Party

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

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

upload a death certificate to NYSCEF when available. If an attorney learns that

an adversary of his or her client has died, 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.

b. 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.

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

cause shown.

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