Calendar Practice

Bill Altreuter, who writes the Outside the Law blog, has some fascinating comments on Note of Issue practice in the 8th Judicial District (that’s Allegany, Cattaraugus, Chautauqua, Erie, Genesee, Niagara, Orleans & Wyoming Counties). He relates that it is common practice for the trial date to be set long before the Note of Issue is filed, and the filing itself is treated as a mere revenue-generating formality. Where other procedural steps such as summary-judgment motions and amended or supplemental Bills of Particulars have timing requirements related to the filing of the Note, this can have what he describes as “odd” effects.

I find most telling his comment that the judicial attitude toward the Note of Issue is a consequence, at least in part, of the OCA calendar requirements, known as Differentiated Case Management. I’ve spent most of my professional time in Supreme Queens, where the common complaint has been that compliance with DCM rules made a mockery of the Note of Issue and its related rules. Is anyone at OCA paying attention to the actual consequences of DCM?

The Legislature has acted to amend CPLR 3216 so as to eliminate the indiscriminate and arbitrary imposition of CPLR 3216 90-day notices by the courts, and the administrative dismissals which frequently followed. CPLR 3216 (a) is amended to provide that any court initiative or motion must be upon notice to the parties. CPLR 3216 (b), which lists the preconditions to dismissal, is amended in two respects. As to time, paragraph (b) (2) now provides that at least one year since the joinder of issue or six months since the preliminary conference order must have elapsed, whichever is later. Most importantly, paragraph (b)(3) now provides that where it is the court that serves a 90-day notice, the notice must
“set forth the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation.” Read More