Check the Rules Part III
August 31, 2017
Visitors to this blog may recall our recent posts (here and here) concerning the individual practice rules of Manhattan Commercial Division Justice Bransten and Queens County Commercial Division Justices Gray and Livote. “Check the rules!”, was the cautionary theme of those posts.
But just how much of a stickler for compliance can one expect a judge to be with respect to the part’s individual rules? And is there any precedent for enforcement – perhaps even some case law that can be cited by a party affected by a non-compliance?
More and more, counsel are being reminded of the importance of following the rules in the Commercial Division. In at least two decisions this year, Manhattan Commercial Division Justice Shirley Werner Kornreich gave such reminders to the bar when she admonished the parties for violating her part rules in the context of summary judgment motions.
With respect to motion papers filed in her court, particularly motions for summary judgment, Justice Kornreich’s “Practices in Part 54” clearly require, among other things, that:
· “all e-filed documents must be OCR Text Searchable PDFs”;
· all memoranda of law must include “cover pages, tables of contents, and tables of authorities, all three of which are mandatory”;
· “the parties shall . . . prepare and file one joint Rule 19-a statement of material facts at least three weeks before the summary judgment motion is filed” and that “[i]f the parties cannot agree on a joint statement, no Rule 19-a statement of facts may be filed”; and that
· “[i]f summary judgment briefs cite to deposition testimony, a complete copy of that deposition transcript must be filed.”
Simple enough, right? Maybe not.
In Lau v Lazar, which involved cross-motions for summary judgment concerning the ownership and operation of an outpatient surgical center, Justice Kornreich reprimanded the parties for “substantially delay[ing] the court in resolving the instant motions” due to their filing of lengthy briefs that “lack[ed] tables of contents and authorities, that [we]re not text-searchable, and that contain[ed] almost no case law in violation of this part’s rules.” Justice Kornreich also scolded the parties for “submit[ting] fact statements without citations to the record, forcing the court to piece together the factual background from the parties’ exhibits, which . . . did not include complete deposition transcripts.”
In Arizona Premium Fin. Co., Inc. v American Tr. Ins. Co., which involved cross-motions for summary judgment concerning the return of unearned insurance premiums, Justice Kornreich threw out altogether the defendant’s “proposed statement of material facts, which was submitted in violation of this part’s rules,” because the parties otherwise “were unable to agree on a joint statement of undisputed facts.”
“You are remembered for the rules you break“, remarked Gen. Douglas MacArthur. In the Commercial Division, however, you don’t want to be remembered as the one who broke the rules. Justice Kornreich’s recent Lau and Arizona Premium decisions serve as another, a best-practices reminder for the Commercial Division practitioner to first “check the rules”, then follow them!