Hon. Robert R. Reed — Part 43 Rules

JUSTICE ROBERT R. REED

PART 43 – PRACTICES AND PROCEDURES

Supreme Court of the State of New York

Commercial Division

60 Centre Street, Courtroom 222

New York, NY 10007

http://ww2.nycourts.gov/courts/comdiv/ny/newyork.shtml

Part Clerk/ Courtroom Phone: 646-386-3238

Chambers Phone: 646-386-3026

Part 43 Email: SFC-Part43@nycourts.gov

Part 43 Clerk Email: SFC-Part43-Clerk@nycourts.gov

Principal Law Clerk: Porsha Johnson, Esq.

Commercial Division Law Clerk: West Overstreet, Esq.

Part 43 Clerk: Crystal J. Holder

Oral Argument on Motions: Thursdays, or as otherwise directed.

Preliminary, Compliance, Status and Pre-trial Conferences: Tuesdays and Thursdays (as scheduled by the

court).

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1. GENERAL

a) All parties or their counsel must familiarize themselves with these Practice Rules and the Rules of

the Commercial Division, 22 NYCRR 202.70.1

b) To create opportunities for attorneys knowledgeable with the subject matter of the action, but who

historically have been underrepresented in the Commercial Division, the court strongly encourages

courtroom participation by such attorneys. Participation may be achieved by having a less

experienced attorney who prepared the brief on the motion, argue the motion before Justice Reed.

c) Justice Reed, his Law Clerks, and Part Clerk will not engage in any ex parte communications.

Counsel for all parties, including pro se litigants, must be carbon-copied on all correspondence with

the court.

d) The Part Clerk is unable to accept deliveries between 1:00 p.m. and 2:15 p.m., or after 4:30 p.m.

e) Counsel must notify the court as soon as practicable, of any settlement or resolution of active cases

or pending motions. Counsel may contact the court by conference call to the Part Clerk, or by email

to chambers with a carbon copy to all counsel assigned to the matter.

2. ELECTRONIC FILING & SUBMISSION OF DOCUMENTS

a) Part 43 is an e-filing Part. All e-filed documents must be text-searchable. All electronically submitted

memoranda of law must contain bookmarks and hyperlinks pursuant to Commercial Division Rule 6.

1 The Commercial Division Rules are available at: http://ww2.nycourts.gov/rules/trialcourts/202.shtml#70.

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b) Documents requiring Justice Reed’s signature for so-ordering must be emailed to Chambers at SFC-

part43@nycourts.gov.

3. COMMUNICATION WITH THE PART CLERK AND CHAMBERS

a) Justice Reed does not accept any letters, documents, or papers by email or mail unless expressly

permitted by these Part Rules, Commercial Division Rules 2 and 18, or by prior approval of the

court.

b) Please refrain from calling chambers. All communication with Part 43 shall be sent my email,

copying all counsel, to both chambers and the part clerk.

c) Do not copy the court on letters exchanged between the parties.

d) Should the parties desire a conference, a request should be sent to chambers at SFC-

part43@nycourts.gov, stating the reason for the conference request. The court will schedule a

conference, if appropriate.

4. ADJOURNMENTS

a) All requests for adjournments (motions scheduled for oral argument, conferences, trials) require

prior court approval. Without prior approval, a stipulation will not be accepted and failure to appear

may result in a default, or appropriate sanction. Ex parte applications will not be considered. All

adjournment requests must provide a reason for the request.

b) All requests to adjourn a conference shall be directed to the Part Clerk at 646-386-3238 or by

emailing the Part Clerk at SFC-Part43-Clerk@nycourts.gov. Applications to adjourn a conference

shall be made at least 48 hours in advance of the scheduled conference. Do not call Chambers

regarding scheduling matters or requests for adjournments.

c) Parties may adjourn a conference no more than two times, and for no more than a total of two (2)

months.

d) In general, motions scheduled for oral argument will only be adjourned by stipulation. The parties

must first consult with the Part Clerk before selecting a new date for the oral argument. Applications

to adjourn a motion scheduled for oral argument should be made at least 72 hours in advance of the

oral argument.

e) Except for emergency situations, adjournments for motions scheduled for oral argument will not be

given if the application is made less than 72 hours before the scheduled appearance.

f) To adjourn a motion that is in the Submissions Part (Room 130):

i. If the parties wish to adjourn the motion to a date less than sixty (60) days from the original

return date, the parties may adjourn by stipulation without an order from the Court. The

stipulation must be electronically filed and filed in the Submissions Part on the return date of

the motion.

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ii. If the parties wish to adjourn the motion to a date more than sixty (60) days from the original

return date, the parties must submit a stipulation of adjournment to the court for approval.

1) Parties must deliver the proposed stipulation to the court by emailing

chambers at SFC-part43@nycourts.gov.

2) If approved, the So-Ordered version of the stipulation will be electronically

filed, so that the parties may retrieve the signed order from the electronic

filing system and present it to the Submissions Part on the return date.

g) To adjourn a hearing or trial, the parties must contact the Part Clerk at 646-386-3238 on a

conference call with all parties on the line. The parties may also email the Part Clerk at SFC-Part43-

Clerk@nycourts.gov. All parties should be copied on the email. Applications for adjournments shall

be made at least 48 hours in advance of the scheduled hearing or trial.

h) All court-approved stipulations to adjourn must be electronically filed by the parties.

5. INITIAL DISCLOSURES

Under the Rules of the Commercial Division, discovery proceeds as soon as the case is initiated with the

RJI (Rules of Commercial Div of Sup Ct [22 NYCRR 202.70 rule 11(g)].) Within 30 days of filing an

answer or appearance by defendant on motion, initial disclosures shall be exchanged as follows:

a) Except as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery

request or discovery order, provide to the other parties:

(i) A list of the names and, if known, the address and telephone number of each individual

that the disclosing party intends to use to support their claims or defenses, unless such use

is solely for impeachment, together with a brief description of the information expected to

be elicited from such individual;

(ii) A copy of all documents, electronically stored information, or other tangible things referred

to in the pleadings unless they are attached to the pleadings;

(iii) A computation of each category of damages claimed by the disclosing party; and

(iv) if applicable, Insurance policy information. (See CPLR 3101[f].)

c) The disclosing party shall e-file an affirmation certifying completion of the initial disclosure.

d) A party that is first served or otherwise joined after the Commercial Division Rule 8 consultation must

make the initial disclosures within 30 days after making an appearance, unless a different time is set

by stipulation or court order.

e) A party must make its initial disclosures based on the information then reasonably available to it. A

party is not excused from making its disclosures because it has not fully investigated the case or

because it challenges the sufficiency of another party's disclosures or because another party has not

made its disclosures. Failure to utilize good faith in making an initial disclosure may result in an award

to the non-disclosing party of the attorneys’ fees and costs occasioned by such failure.

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f) The disclosures must be in writing, signed, and served.

6. MOTION PRACTICE

a) Summary judgment motions must be filed not later than 60 days after the filing of the Note of Issue.

Each party must comply with Commercial Division Rule 19-a by submitting a separate statement of

material facts.

b) Only one motion for summary judgment may be made, whether made before or after the filing of the

Note of Issue, unless the court directs otherwise.

c) Fully submitted (Room 130) substantive motions with opposition will be scheduled for oral

argument at the discretion of Justice Reed. Motions submitted on default or with no opposition are

not scheduled for oral argument.

d) Following oral argument, the movant shall order the transcript and arrange with the court reporter to

have the transcript emailed to the court at sfc-part43@nycourts.gov. If a decision and order has been

issued on the record, Justice Reed will “so order” the transcript, and the Part Clerk will e-file the “so

ordered” transcript.

e) Affirmations submitted in support of or in response to dispositive motions must be separate from any

memoranda of law. Affirmations should not include arguments of law.

f) All memoranda of law must include a Table of Contents and Table of Authorities.

g) Word limits specified in Commercial Division Rule 17 will be strictly enforced, unless permission to

expand the word limit is granted in advance of the filing of papers.

h) Combined briefs – similarly situated parties (e.g., multiple defendants moving to dismiss on

overlapping grounds) should make reasonable efforts to consolidate their briefing papers to avoid

duplication. The court will consider requests to enlarge applicable word limitations to facilitate the

filing of combined briefs.

i) Each exhibit must be e-filed under its own document number and include a short label identifying

the nature of the exhibit (e.g., Complaint, Contract dated 10/23/22, etc.).

j) Orders to show cause with requests for temporary restraining orders, including requests for a

temporary stay of an action, will generally not be heard ex parte (22 NYCRR 202.7(f); 22 NYCRR

202.70, Rule 20).

k) OSC opposition papers shall be e-filed no later than 72 hours before the motion is to be heard. The

court will not accept replies on any OSC.

l) The CPLR does not provide for sur-reply papers, however denominated. Papers or letters regarding a

fully submitted motion should not be presented to the court after submission of the motion in the

Motion Submissions Part Courtroom (Room 130), or after argument in the Part, absent advance

permission of the court. Materials presented in violation of this rule will not be accepted or

reviewed.

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m) Requests for pro hac vice admission should include: a joint stipulation consenting to the admission,

if possible; and an affidavit by the attorney seeking admission, accompanied by a certificate of good

standing for all jurisdictions admitted.

n) Requests for Commissions should be made by stipulation, if possible.

7. CONFERENCES AND DISCOVERY DISPUTES

a) All discovery conferences are conducted virtually – absent extraordinary circumstances. If an in-

person conference is requested, the parties must submit their application to chambers no later than

two weeks prior to the scheduled conference date.

b) Only attorneys thoroughly familiar with the case may appear for a conference. Attorneys should

bring signed copies of all prior decisions, orders, and stipulations (both substantive and discovery

related) to the conference.

c) At least seven (7) days prior to every conference, a draft order must be completed and submitted to

chambers. The parties must use specific cut-off dates (e.g., “on or before December 31, 2022”). Do

not use open-ended dates or general timeframes, such as “within 45 days,” etc.

d) Preliminary Conferences: The parties may request a preliminary conference by email to SFC-

part43@nycourts.gov. At least seven (7) days prior to the preliminary conference date, the parties

must comply with Commercial Division Rule 8 and submit a consent preliminary conference order

to the part. An approved consent preliminary conference order will obviate the need to appear for a

conference. If the parties cannot agree on a discovery schedule, the plaintiff and any party asserting a

counterclaim must submit a Commercial Division Rule 11(a) statement not exceeding three single

spaced pages, setting forth the discovery dispute. Parties are to use this Part’s standard form

Preliminary Conference Order. Copies are available on the Commercial Division website (http:

www.nycourts.gov/courts/comdiv/ny/newyork.shtml).

e) Compliance Conferences: At least seven (7) days prior to the compliance conference, counsel shall

submit a joint letter not exceeding three single-spaced pages, setting forth the status of discovery,

describing any significant disputes to be addressed at the conference, whether there are any

outstanding motions and/or appeals, and whether the parties have attempted Alternative Dispute

Resolution or other efforts at settlement. The joint letter must be filed to NYSCEF and sent by email

to SFC-part43@nycourts.gov.

f) Status Conference: At least seven (7) days prior to the status conference, counsel shall submit a

joint letter not exceeding three single-spaced pages, setting forth a summary of the case, the current

schedule for completion of discovery and filing of the Note of Issue, and proposed revisions to the

schedule and reasons therefor, whether there are any outstanding motions and/or appeals, and

whether the parties have attempted Alternative Dispute Resolution or other efforts at settlement. The

joint letter must be filed to NYSCEF and sent by email to SFC-part43@nycourts.gov.

g) The following procedures shall be followed if a conference is conducted in-person. After filling out

the appropriate form, counsel must check-in with the Park Clerk. At check-in, please hand in your

conference form to the Part Clerk. The Part Clerk will then call your case when the court is ready for

your conference. All appearing parties must be present for a case to be conferenced. Without a

conference, the order will not be signed. A conference has not been completed until either Justice

Reed or one of his Law Clerks has reviewed the completed form and conferenced the case.

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h) Settlement Conferences: The parties may, on consent, request a settlement conference by emailing

chambers at SFC-part43@nycourts.gov.

i) Discovery motions are discouraged. If a dispute cannot be resolved after good faith efforts to meet

and confer, the parties should proceed in accordance with Commercial Division Rule 14. The parties

shall coordinate to make a single Rule 14 submission to chambers at SFC-part43@nycourts.gov,

containing both the initial letter and any responsive letter(s). No exhibits or attachments shall be

included.

j) The filing of a dispositive motion does not stay discovery. Commercial Division Rule 11(g)

applications will be denied absent unusual or compelling circumstances.

8. TRIALS/ EVIDENTIARY HEARINGS

a) The submissions required under Commercial Division Rules 26, 27, 28, 29, 31(a), 31(b), and 32,

plus marked pleadings and a Joint Statement of Stipulated Facts and Procedural History, shall be

made at least 10 days prior to the final Pre-Trial Conference.

b) In addition to the above, for jury trials the following materials shall be submitted at least 10 days

prior to the final Pre-Trial Conference:

i. A short summary (one or two sentences) of each party’s claims to be used by the court as

part of the preliminary instructions to the jury; and

ii. Proposed jury instructions, including the text of relevant PJI Instructions, should be

submitted by e-mail to Chambers (SFC-part43@nycourts.gov) in Word format. The

submission should note the instructions to which the parties have stipulated. Any

proposed deviations from PJI Instructions should be highlighted and explained, with

citations to legal authority where appropriate.

c) If an attorney wishes to make an objection, the attorney may do so by standing and saying

“objection,” with a brief generic ground for the objection (e.g., hearsay, leading, relevance, asked

and answered, etc.). No speaking objections will be permitted.

d) All remarks related to objections should be directed to the court. Comments should not be made to

opposing counsel.

e) Do not approach a witness, the jury, or the bench without permission of the court. Please allow the

witness to complete his/her answer to your question before asking another question.

f) For non-jury trials, the parties shall submit proposed findings of facts and conclusions of law within

ten (10) calendar days of the close of the record, unless otherwise directed by the court.

g) Any post-trial motion shall be made within the time allotted pursuant to CPLR 4405.

h) Trial extracts will be filed by the Part Clerk within 30 days of entry of the verdict or decision.

9. ALTERNATIVE DISPUTE RESOLUTION

a) If, at any point, the parties decide that they would benefit from the Commercial Division ADR

program, they should submit via email a joint letter to the Court asking to be referred to ADR.

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Discovery will not be stayed during the ADR process.

b) The court may also order parties to the Commercial Division ADR program without the parties’

request or consent. For more information regarding the ADR program, please visit:

http://www.nycourts.gov/courts/comdiv/ny/ADR_overview.shtml.

10. CONFIDENTIALITY ORDER

a) In the interest of reducing unnecessary litigation costs, any order regarding the confidential exchange

of information must adhere to the Proposed Stipulation and Order for the Production and Exchange

of Confidential Information (“the Model Form”).

b) Justice Reed is mindful that minor additions/deletions/edits to the Model Form will only drive-up

litigation costs. Therefore, if the parties believe there is good cause to depart from the Model Form,

they must submit the following:

i. The proposed stipulation and order

ii. A red-lined version of the proposed stipulation and order, indicating any departures from

the Model Form

iii. A party affirmation establishing good cause for any proposed departures from the Model

Form. Amended Model Forms unaccompanied by the red-lined version and affidavit will

not be approved

11. SEALING DOCUMENTS

a) Sealing (including redactions beyond those permitted by the Redaction Rules) is discouraged. Any

request for additional redactions or sealing shall be made according to the Uniform Rules for Trial

Courts 22 NYCRR 216.1.

b) General assertions that information contained in documents is “confidential” are not sufficient.

Under applicable law, “the party seeking to seal court records has the burden to demonstrate

compelling circumstances to justify restricting public access” (Maxim, Inc. v Feifer, 145 AD3d 516,

517 [1st Dept 2016] [internal citations and quotations marks omitted]). The fact that the parties have

a confidentiality agreement or otherwise stipulate to sealing is not sufficient to warrant sealing or

redaction of specific documents. The court has an independent obligation to determine whether

sealing is appropriate (Maxim, 145 AD3d at 518; Gryphon Dom. VI, LLC v APP Intern. Fin. Co.,

B.V., 28 AD3d 322, 324 [1st Dept 2006]).

c) Motions to seal and/or redact shall be made by order to show cause and shall include a spreadsheet

identifying each document by New York State Court Electronic Filing (NYSCEF) document

number. Movant’s memorandum of law shall set forth the basis of the purported good cause to seal

or redact each document or piece of information and any applicable law or authority supporting

movant’s good cause to seal/redact the document/information. The movant’s papers must also

include an affidavit from a person with knowledge setting forth the grounds to seal or redact the

document/information. An attorney affirmation, standing alone, is not adequate.

d) Movant’s proposed categories shall be identified with specificity in the spreadsheet and legal

memoranda to facilitate issuance of a workable and efficient order; for instance, vague categories

such as “confidential business information” or “proprietary trade information” are not adequate;

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examples of specifically-identified categories include “third-party borrower personal identifying

information,” “pricing terms for international customers,” “investment methodologies,” “capital

contribution information of private entities,” and “strategies for structuring, collateralizing, and

marketing structured products.” A carefully tailored list of categories incorporated into movant’s

spreadsheet that articulate precise categories of information is required. Generic categories generally

will not establish the requisite good cause to seal or redact, and thus could unnecessarily lead to

successive/further motion practice.

e) If the court permits additional redactions or sealing of a document in whole or in part, counsel shall

e-file both the redacted copy publicly and the unredacted copy of the document under seal.

Additional instructions are available at Protocol on Courthouse and County Clerk Procedures for

Electronically Filed Cases.

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