New York Civil Practice Update: Part 2- Understanding the Additional Changes to the New Uniform Civil Rules for the New York Trial Courts Pursuant to Administrative Order 141/2022, Effective July 1, 2022

By: V. Christopher Potenza, Esq., Amber E, Storr, Esq., and special thank you to Law Clerk Christopher Kolber (anticipated J.D. 2023).

On February 1, 2021, substantial changes in the form of 29 revisions to the Uniform Civil Rules (22 NYCRR 202.1 et seq.) went into effect.  These new rules were designed to promote judicial efficiency (e.g., moving cases to resolution, cooperation of counsel to avoid unnecessary court intervention, and cleaner paper submissions) and can be broken down into three general categories: (1) Conduct of Counsel/Interaction with the Courts, (2) Motion and Trial Papers/Type and Content, and (3) Discovery Rules and Limitations.

Generally, these changes expanded to all civil cases certain rules that were previously in place for commercial litigation only. Some revisions were similar to procedures promulgated during COVID-19 and some had been used by various judges in Individual Part rules.

Click here to review the original changes that went into effect on February 1, 2021.

After hearing how impractical many of these rules were for civil practitioners, the NYSBA assembled a task force to address some of the main concerns about these rules. With additional input from the public, the NYSBA was able to adopt new changes that became effective as of July 1, 2022.

The common theme among these most recent changes that took effect on July 1, 2022, is that the rules give the courts more explicit discretion to require or waive these procedures.  The most consequential change is the requirement to provide a material statement of uncontested facts when moving for summary judgment is now discretionary at the direction of the trial court.

Click here to review the full text of the new Administrative Order 141/2022, Effective July 1, 2022.

• Section 202.1 Application of Part; Waiver; Additional Rules; Application of CPLR; Definitions. 
  • (b) Waiver. In the interest of justice, when good cause is shown- the court may waive compliance with any of the rules in this part (besides sections 202.2 and 202.3) in an action or proceeding, unless prohibited by statute or by the Chief Judge.
  • Even if these changes do not apply retroactively to pending motions or cases, the court may waive compliance with any of the uniform rules.
     
• Section 202.5 Papers filed in court.
  • Each electronically submitted memorandum of law, affidavit and affirmation that exceeds 4500 words shall include bookmarks, unless otherwise directed by the court or if it was not prepared with the use of computer software.
  • The prior version did not include the exception allowing for the court to waive this.
     
• Section 202.8-b Length of Papers
  • (a)(i) Affidavits, affirmations, briefs, and memoranda of law in chief shall be limited to 7,000 words each, unless otherwise directed by the court or if it was not prepared with the use of computer software.
  • (a)(ii) Reply affidavits, affirmations, and memoranda are limited to 4,200 words and shall only contain arguments that respond or relate to those made in the memoranda in chief.
  • (c) The counsel who has filed the document must include a page at the end with a certification that the document is in compliance with the word count and include the number of words in the document for all documents prepared by use of a computer.
  • (d) Typewritten or handwritten affidavits, affirmation, briefs and memoranda of law in chief are limited to 20 pages, while replies are limited to 10 pages and may only contain arguments that respond or relate to those made in the memoranda in chief.
  • (e) Where a party opposing a motion makes a cross-motion, the affidavits, affirmations, briefs, or memoranda submitted by that party shall be limited to 7,000 words each when prepared by use of a computer or to 20 pages each when typewritten or handwritten. Where a cross-motion is made, reply affidavits, affirmations, briefs or memoranda of the party who made the principal motion shall be limited to 4,200 words when prepared by use of a computer or to 10 pages when typewritten or handwritten.
  • (f) Upon its discretion, the court may permit submission of documents that exceed these requirements with an oral or letter application on notice to all parties. If the court allows this, section (c) of this section shall still be followed including that different requirement issued by the court.
  • The main change here is that there is a distinction in the length requirements for documents prepared by a computer and documents prepared by hand or typewriter.
     
• Section 202.8-g Motions for Summary Judgment; Statements of Material Facts.
  • (a) The court may direct that a separate statement of the material facts that the moving party contends there is no genuine issue to be tried, be annexed, with numbered paragraphs, to any motion for summary judgment, other than those made pursuant to CPLR 3213.
    • (b) The papers opposing a motion for summary judgment shall include numbered paragraphs that correspond to each numbered paragraph in the original motion for summary judgment, as well as a statement of material fact where it is contended that there exists a genuine issue to be tried, when necessary.
    • The main difference in the new Section 202.8-g is that it only applies when the court directs and is no longer required in all summary judgment motions.
  • (c) Unless specifically controverted by a corresponding numbered paragraph in the required statement, each numbered paragraph in the statement of material facts required to be served by the moving party may be deemed to be admitted for the purposes of the motion. The court may allow these admissions to be amended or withdrawn as they see just.
    • Previously this was deemed admitted for all purposes, now it only may be deemed admitted in regard to the motion.
  • (d) Each statement pursuant to subdivision (a) or (b) must be followed by citation to evidence submitted in support of or in opposition to the motion.
  • (e) If the proponent of a motion for summary judgment does not provide the required statement of undisputed facts, the court may; order compliance and adjourn the motion, may deny the motion without prejudice to renewal upon compliance, or take other just and appropriate measures.
  • If the opponent of a motion for summary judgment does not provide the required counter statement of undisputed facts, the court may; order compliance and adjourn the motion, deem the assertions contained in the proponent’s statement to be admitted for the purpose of the motion (after notice to the opponent and opportunity to cure), or take other just and appropriate measures.
     

• Section 202.20 Interrogatories.
  • Generally, interrogatories are limited to 25, however, the parties may agree to a different number, or the court can order otherwise.
  • Previously, the parties were not allowed to agree to a different number without the court ordering otherwise.
     
• Section 202.20-a Privilege Logs
  • (b) Court Order. If the parties are able to enter into an agreement or protocol, this may be memorialized by a court order. If they cannot enter an agreement or protocol, the court shall issue an order providing for the scope of the privilege review, the amount of information to be set out in the privilege log, the use of categories to reduce document-by-document logging. Further, if they cannot enter an agreement or protocol, the court shall issue an order regarding whether any categories of information may be excluded from the privilege logging, and any other pertinent issues regarding privilege review.
     
• Section 202.20-c Requests for Documents.
  • (c) At the conclusion of each response there shall be an affidavit of the responding party stating:
    • (i) Whether the production of documents that are responsive to the individual requests is complete; or
    • (ii) Whether there are no documents in its possession that are responsive to any individual request.
  •  Previously, the parties had to submit an individual response for each document requested.
     
• Section 202.20-h Pre-Trial Memoranda, Exhibit Book, and Requests for Jury Instructions
  • (a) The court may direct that counsel shall submit pre-trial memoranda either at the pre-trial conference or at another time that the court determines. Counsel shall comply with CPLR 201(e). A single memorandum that is no longer than 25 pages shall be submitted by each side and no memoranda in response shall be submitted, unless the court directs otherwise.
  • (b) The court may direct that on the first day of trial or at another time that the court determines, counsel shall submit an indexed binder or notebook, or the electronic equivalent, containing the trial exhibits for the court's use. This submission shall include a copy for each attorney on trial and the originals in a similar binder or notebook for the witnesses. Plaintiff's exhibits shall be numerically tabbed, while defendant's exhibits shall be tabbed alphabetically.
  • (c) On the first day, or another date determined by the court, of a jury trial, counsel shall provide the court with case-specific requests to charge and proposed jury interrogatories. A PJI number is adequate when the request is from the NY Pattern Jury Instructions – Civil. As directed by the court, submissions should be hard copy and electronic.
  • Pre-trial Memoranda and exhibition books are now only required when the court directs.
     
• Section 202.20-i Direct Testimony by Affidavit
  • The court may permit that direct testimony of that requesting party’s own witness (in a non-jury trial or evidentiary hearing) be submitted in affidavit form, upon the request of the party.
  • (a) the court may not require the submission of a direct testimony affidavit from a witness that is not under control of the party offering the testimony; and
  • (b) the opposing party shall have the right to object to statements in the direct testimony affidavit, and the court shall rule on those objections as if they were made orally in open court. When an objection to a portion of a direct testimony affidavit is sustained, the court may strike that portion. The submission of direct testimony in affidavit form shall not affect any right to conduct cross-examination or re-direct examination of the witness.
  • Now courts cannot require direct testimony by affidavit unless specifically requested by the party of the testifying witness.​
     

• Section 202.26(c) Settlement and Pretrial Conferences
  • (c) Consultation Regarding Expert Testimony. The court presiding over a non-jury trial or hearing may direct that prior to or during the trial or hearing, counsel for the parties consult in good faith to identify undisputed aspects of their respective experts’ anticipated testimony. Additionally, the court may direct that any agreements reached due to this direction shall be reduced to written stipulation.
  • Previously this did not just apply to non-jury trials. Additionally, it will now apply to hearings.
    ​
• Section 202.34 Pre-Marking Exhibits
  • Prior to trial, counsel for the parties shall consult in a good faith attempt to agree upon the exhibits that will be offered into evidence without objection. Prior to the commencement of trial, each side shall mark its exhibits into evidence, subject to court approval, as to those that have not been objected to, unless otherwise directed by the court.
  • If not consented, exhibits shall be marked for identification only. Counsel shall consult the clerk of the part for guidance, if the trial exhibits are voluminous. The court should rule upon the objections to the contested exhibits at the earliest possible time. Exhibits do not need to be pre-marked if they were not previously demanded to be used solely for credibility or rebuttal.
  • Previously, the court did not have the discretion to direct otherwise. Additionally, this section said the court will rule instead of should rule upon the objections.
     
• Section 202.37 Scheduling Witnesses
  • Each party shall identify in writing to the court: the witness it intends to call, the order in which they shall testify, the estimated length of their testimony, and shall provide a copy of such witness list to opposing counsel – at the commencement of the trial or at a time the court directs. Additionally, counsel shall identify for the court a separate list of witnesses who may be called only for the purposes of rebuttal or in regard to credibility. In the absence of substantial prejudice, if good cause is shown, the court may permit a party to call a witness to testify who was not identified on the witness list submitted by that party.
  • The estimate for the length of testimony and the order that the witness is only advisory, additionally, the court may permit witnesses to be called in a different order and allow further testimony from a witness that has already exceeded their advisory time estimate.
  • Previously, these estimates were not advisory only and the court was not given the authority to call witnesses in a different order.
    ​

While these updated changes did address a lot of troubling issues, not all concerns were remedied. There was a strong push for a change to Section 202.20-b Limitations on Depositions. The February update to this section limited the number of depositions to 10 and limited the time for each deposition to only 7 hours.  The main qualm practitioners had with this was the 7-hour time limit per deponent that could prejudice a party’s rights based on the order of the caption. For example, if you are the 3^rd or 4^th party in line for questioning, the 7 hours could be expired before you have the opportunity to question.  The court may alter these limits, however, upon a showing of good cause.

As these new rules go into effect, we expect more challenges to come to light with additional feedback from the bar.  It is anticipated that the Uniform Civil Rules will be a continued work in progress, adapting to the needs of modern-day civil practice.