Counsel May Not Evade Word Limitations by Incorporating Affidavits in Place of a Statement of Facts
July 14, 2022
Litigation in the Commercial Division is efficient and effective in part because its judges strictly enforce the Commercial Division Rules. Those unsure can peruse Matt Donovan’s “Check the Rules” series on this blog, including (apropos the subject of this post) his post concerning the amendments to Commercial Division Rule 17.
One of the most significant rules of the Commercial Division is the limitation on the size of submissions. In 2018, the Commercial Division Rules were amended to implement a word limit rather than a page limit. According to a Memorandum by the Commercial Division Advisory Council, that rule change was designed to reduce incentives for attorneys to fit more text into the page limit. Commercial Division Rule 17 now provides:
Unless otherwise permitted by the court: (i) briefs or memoranda of law shall be limited to 7,000 words each; (ii) reply memoranda shall be no more than 4,200 words and shall not contain any arguments that do not respond or relate to those made in the memoranda in chief; (iii) affidavits and affirmations shall be limited to 7,000 words each. The word count shall exclude the caption, table of contents, table of authorities, and signature block.”
One need not look far to determine how seriously the Commercial Division Justices take the word count limitations. Justice Borrok’s Part Rules provide that “Word limits specified in Commercial Division Rule 17 will be strictly enforced, unless permission to expand the word limits is granted in advance of the filing of the papers.” Justices Grays (Queens County), Chimes (Erie County), Gomez (Bronx County), Reed (New York County), and Masely (New York County) all have similar rules. Justice Jamieson of the Westchester County Commercial Division reminds counsel, “All papers must comply with the applicable provisions of the CPLR and with Rules 16, 17 and 18 of the Commercial Division Rules. In addition, the font size of text and footnotes must be no smaller than 11 point. Papers which do not comply may be rejected.”
Penalties for non-compliance with the word limits can be severe. In Levine v Cohen, 2019 N.Y. Slip Op. 34059[U], 22 [N.Y. Sup Ct, Nassau County 2019], Nassau County Commercial Division Justice Timothy Driscoll struck an attorney’s affirmation that (among other defects) violated the commercial division word limits.
Last month, New York County Commercial Division Justice Joel M. Cohen issued another warning to the Commercial Division bar about improper attempts to circumvent the word limits of Commercial Division Rule 17 by filing multiple documents in the place of one. In Durst Pyramid LLC v. Silver Cinemas Acquisition Co., 2022 NY Slip Op 31958(U), the Plaintiff filed a motion for summary judgment that included a nearly 7,000 word memorandum of law, but that memorandum of law did not include a statement of facts. Rather, the memorandum simply referred the Court to four additional affidavits. In his ruling on Plaintiff’s motion for summary judgment, Justice Cohen observed:
A brief note on process: Motions for summary judgment require Rule 19-a statements, but such a statement is not a substitute for including a Statement of Facts (with citations to the record) in the Memorandum of Law. A statement of facts is an integral part of a summary judgment brief, not merely an appendix. And counsel may not evade the applicable word-count limits by omitting facts sections from their briefs. Here, Landlord’s opening submission went on for 414 pages, including a nearly 7,000-word memorandum of law and numerous exhibits, yet did not include a facts section. Instead, counsel referred the Court to four separate affidavits, totaling an additional 11,816 words. Doing so, in the Court’s view, circumvented the wordcount limit set forth in the Commercial Division Rules. While the Court will not strike the opening brief in this instance, counsel are advised that such submissions will not be considered in the future.”
(emphases added, citations omitted)
Counsel have been warned. The Commercial Division word limitations exist to keep arguments concise, not test whether lawyers can “respectfully refer the Court to” or “incorporate herein” other filings into their memoranda.