Hon. Nicholas Moyne — Part 41 Rules

HON. NICHOLAS W. MOYNE

IAS Part 41, E-File Part

80 Centre Street, Room 327, New York, NY 10013

PART 41 RULES

Part 41 Clerk: sfc-part41-clerk@nycourts.gov

Courtroom Telephone: (646) 386-3984

Principal Court Attorney: Nicholas Grafstrom, Esq.

Assistant Law Clerk: Sarah Waldman, Esq.

Chambers Telephone: (646) 386-3955

Chambers email: sfc-part41@nycourts.gov

1. Contacting the Court

a. No ex parte communications are permitted. This includes any/all emails and phone

calls. All parties to an action must be included in any communications with the court.

b. The Part Clerk is unable to accept deliveries or answer emails or phone calls

between 1:00 and 2:15 P.M. or after 4:00 P.M.

c. Emails to the court should have the index number of the action at the beginning of

the subject line.

d. 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.

e. 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-

Part41-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inform the Part Clerk that a motion is being withdrawn or that an action has been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

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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withdrawn or that an action has been settled or discontinued, or with respect to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. The Judge will rarely if ever get directly

involved in hearing deposition disputes. Attorneys are reminded to consult

applicable New York rules concerning the handling of objections at depositions.

f. No attorney or unrepresented party shall telephone chambers, including the Justice’s

law clerks, unless expressly directed to do so.

g. 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.

h. Documents requiring Justice Moyne’s signature, including proposed orders and

stipulations (e.g., proposed or settled orders, stipulations, or transcripts to be “so-

ordered”), must be electronically filed and a Microsoft Word version with electronic

signatures emailed to the Part Clerk at SFC-Part41-Clerk@nycourts.gov.

i. The parties are advised that Chambers and the part clerk are not automatically

notified when documents or correspondence are filed on NYSCEF or E-Courts.

2. Motions

a. Until further notice, oral argument shall be held on all opposed motions, as well as all

motions to be relieved as counsel. Counsel should anticipate that oral arguments on

motions will be on the record and that the Judge may rule or partially rule on the

motion from the bench.

b. Motions to be relieved as counsel should be made by Order to Show Cause.

Attorneys moving 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-Part41-

Clerk@nycourts.gov.

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]), these rules, or where

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

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court.

d. Please do not contact the court with inquiries regarding the status of a decision on a

motion unless the matter is time sensitive.

e. With respect to discovery motions, please refer to Section 6(d), below.

3. Adjournments

a. 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.

b. 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-Part41-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. Adjournment Requests – should be made a minimum of 3 business days before the

next appearance. If no response is given, then the request is denied.

4. 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 and emailed to the

part clerk at SFC-Part41-Clerk@nycourts.gov. 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 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

(60 Centre Street, Room 148, New York, NY 10007), and shall separately file and

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

whereupon the Trial Support Office shall thereupon 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 or to upload the notice required by CPLR

8019(c) will leave the caption unamended in the court’s records.

5. So-Ordered Subpoenas

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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 Clerk with

a request that the court “so order” the subpoena.

b. All requests for a so-ordered subpoena shall be accompanied by a brief statement

indicating the need for the subpoena to be so-ordered and why such discovery is

appropriate.

c. If the court signs the subpoena, the signed copy will not be uploaded to NYSCEF,

but, rather, shall 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.

6. 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 conference on the first available date and provide the

parties with information concerning the 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 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).

NOTE THAT NO DISCOVERY MOTIONS ARE PERMITTED WITHOUT EXPRESS

PERMISSION FROM THE COURT.

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

schedule a conference with the court to discuss that item or items, but resolve the

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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 1(b) above.

7. Trial Conference

a. The Court will conduct a 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 trial, the court will attempt to conduct an initial conference as

soon as practicable after the assignment to discuss scheduling and other issues.

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

must have settlement authority as well as authority to enter binding stipulations.

c. At any pretrial conference, counsel 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 may not have audio/visual or

computer equipment available);

iv. Necessary court-ordered subpoenas; and

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 be e-mailed to the Law Clerks or the Judge directly upon request

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.

8. Trial

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

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

Lunch 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 4:45 PM.

b. All insurance information, including copies of all relevant policies, and

information regarding any coverage disputes and/or potential disputes,

including but not limited to providers/ carriers/ additional or excess carriers/

policies/ disclaimers/ reservation of rights/ denials/ etc., should be disclosed

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to all interested parties and the Court well in advance of the trial’s scheduled

start date and no later than the date of the trial’s assignment to this Part.

c. Witnesses may be taken out of order upon agreement of counsel, or at the court’s

discretion for scheduling purposes.

d. 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.

e. 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.

f. Counsel are encouraged to stipulate to undisputed facts and to the admissibility of

clearly admissible documents and records.

g. 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.

h. 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.

i. Proposed Jury Charges and Verdict Sheets.

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

charge (subject to amendment), citing the current PJI sections, preferably

before the commencement of trial, but not later than the start of the second

day or as instructed by the Court.

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

the Court (ngrafstrom@nycourts.gov, swaldman@nycourts.gov, and SFC-

Part41@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-

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PJI jury charges or suggested PJI 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.

j. 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 say 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.

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.

k. 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.

l. 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.

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 he/she cannot answer the

question with a yes or no.

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

not to opposing counsel.

o. Bench or non-jury trials are governed by separate rules that will be provided to

counsel upon assignment of the trial to Justice Moyne.

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.

9. Settlement Conferences

a. Upon request of the parties, the court will meet with the parties’ attorneys for a

settlement conference. The court will only schedule a settlement conference if there

has been a demand made by the plaintiff and an offer made by the defendant prior to

the conference. In medical and dental malpractice actions, the court will not

schedule a settlement conference if a defendant’s insurance policy requires the

consent of an individual physician or dentist to settle the action, and that physician or

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dentist has not yet consented to permit his or her insurer or attorney to settle the

action on his or her behalf.

b. 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.

c. With very rare exceptions, the Judge will not speak to a represented litigant directly

about settlement or resolution and will do so only with permission of their attorney

and in their attorney’s presence.

10. Death or Incapacity

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. If an attorney at any point during the course of the litigation comes to believe that his

or her client is incapacitated and unable to effectively assist in the prosecution or

defense of the action, the attorney shall notify the court and the opposing attorney

immediately so that the Court may consider appropriate remedies such as the

appointment of a guardian.

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.

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

shown.

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