Category: NYCRR

Abandoned: 22 NYCRR 202.48

JP Morgan Chase Bank, N.A. v Atedgi, 2018 NY Slip Op 04315 [2d Dept 2018]

In April 2013, the plaintiff moved, inter alia, for summary judgment on the complaint and for an order of reference. The appellants opposed the motion. By decision dated July 1, 2013, the Supreme Court granted the motion and directed the plaintiff to "settle order." The decision was filed with the Queens County Clerk on July 9, 2013. Atedgi subsequently sought to have the plaintiff's motion deemed abandoned pursuant to 22 NYCRR 202.48(b) on the ground that the plaintiff failed to submit its proposed order for signature within 60 days after the July 1, 2013, decision was filed, as required by 22 NYCRR 202.48(a). The court rejected Atedgi's request. Thereafter, the plaintiff submitted its proposed order, and the court signed it on September 15, 2015. This appeal is from so much of the order dated September 15, 2015, as granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the appellants and for an order of reference.

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Contrary to the appellants' contention, under the circumstances of this case the Supreme Court providently exercised its discretion in declining to deem the plaintiff's motion abandoned pursuant to 22 NYCRR 202.48 (see Curanovic v Cordone, 134 AD3d 978, 979-980; Russo v City of New York, 206 AD2d 355).

22 NYCRR 202.48 [60 day rule]

22 NYCRR 202.48

47 Thames Realty, LLC v Robinson, 2014 NY Slip Op 06051 [2nd Dept. 2014]

22 NYCRR 202.48, entitled "[s]ubmission of orders, judgments and decrees for signature," states in pertinent part:

"(a) Proposed orders or judgments, with proof of service on all parties where the order is directed to be settled or submitted on notice, must be submitted for signature, unless otherwise directed by the court, within 60 days after the signing and filing of the decision directing that the order be settled or submitted. "(b) Failure to submit the order or judgment timely shall be deemed an abandonment of the motion or action, unless for good cause shown."

Here, the so-called 60-day rule set forth in 22 NYCRR 202.48 is not applicable because the Supreme Court's direction that the defendants submit a proposed order with respect to an award of an attorney's fee did not specify that the proposed order be settled or submitted on notice (see Farkas v Farkas, 11 NY3d 300, 309; Shamshovich v Shvartsman, 110 AD3d 975, 976-977; Matter of Village of Dobbs Ferry v Stanley Ave. Props., Inc., 95 AD3d 1027

Medical Reports: 22 NYCRR 202.17 [Ct. App.]

CPLR 3121(a)

CPLR 3101

CPLR 4411

22 NYCRR 202.17(b)(1)

Hamilton v Miller, 2014 NY Slip Op 04230 [2014]

In most personal injury cases, disclosure under this rule is straightforward. The injured plaintiff goes to the doctor for diagnosis and treatment. The doctor drafts a report. The plaintiff turns over the report to the defendant.

This case is more complicated. Plaintiffs allegedly suffered lead poisoning as children. Now adults, plaintiffs allege that their childhood exposure to lead caused them numerous injuries. It appears from the dearth of medical evidence in the record that plaintiffs may never have been treated for or diagnosed with many of the alleged injuries. This raises the question of what plaintiffs must disclose in order to comply with rule 202.17 (b) (1).

Plaintiffs argue that the rule requires them to turn over only those reports that currently exist from providers who have "previously treated or examined" them. They argue that they are not required to document or create medical evidence of every alleged injury. To the extent that plaintiffs are arguing that the rule does not obligate them to hire a medical provider to examine them and create a report solely for purposes of the litigations, we agree. Requiring a personal injury plaintiff to hire a medical professional to draft a report purely to satisfy 22 NYCRR 202.17 (b) (1) could make it prohibitively expensive for some plaintiffs to bring legitimate personal injury suits. Some plaintiffs may not be able to afford a medical examination or may not even have access to a doctor. Plaintiffs therefore need only produce reports from medical providers who have "previously treated or examined" them.

To the extent, however, that plaintiffs claim that they need to turn over only those medical reports that currently exist, we disagree. The rule obligates plaintiffs to provide comprehensive reports from their treating and examining medical providers — the reports "shall include a recital of the injuries and conditions as to which testimony will be offered at the trial" (22 NYCRR 202.17 [b] [1]) [emphasis added]). Plaintiffs therefore cannot avoid disclosure simply because their treating or examining medical providers have not drafted any reports within the meaning of rule 202.17 (b) (1) (see Ciriello v Virgues, 156 AD2d 417, 418 [2d Dept 1989] ["[T]he fact that a report never was prepared does not obviate the party's obligation under the rules"]; Davidson v Steer/Peanut Gallery, 277 AD2d 965, 965 [4th Dept 2000]; Pierson v [*3]Yourish, 122 AD2d 202, 203 [2d Dept 1986]). If plaintiffs' medical reports do not contain the information required by the rule, then plaintiffs must have the medical providers draft reports setting forth that information (see id.)[FN2]. If that is not possible, plaintiffs must seek relief from disclosure and explain why they cannot comply with the rule (see 22 NYCRR 202.17 [j]).

We conclude therefore that Supreme Court abused its discretion in requiring plaintiffs to provide medical evidence ofeach alleged injury or otherwise be precluded from offering evidence of that injury at trial. Supreme Court's motivation for granting that relief is understandable. Plaintiffs' counsel filed boilerplate bills of particulars and then did not disclose medical records substantiating the alleged injuries. To that end, plaintiffs should amend their respective bills of particulars to reflect those injuries actually sustained. Nonetheless, although Supreme Court had wide, inherent discretion to manage discovery, foster orderly proceedings, and limit counsel's gamesmanship (see Kavanagh v Ogden Allied Maintenance Corp., 92 NY2d 952, 954 [1998]), the ordered relief exceeded the court's power.

Supreme Court also granted relief beyond that contemplated by rule 22 NYCRR 202.17 (b) (1) by requiring plaintiffs to produce, prior to the defense examination, a medical report causally relating plaintiffs' injuries to lead paint exposure or be precluded from offering proof of such injuries at trial. The rule requires that the medical reports "include a recital of the injuries and the conditions as to which testimony will be offered at the trial, . . . including a [*4]description of the injuries, a diagnosis, and a prognosis." There is no requirement that medical providers causally relate the injury to the defendant's negligence or, in this case, the lead paint exposure.

If determining causation requires evidence from a medical professional, causation is more appropriately dealt with at the expert discovery phase and pursuant to CPLR 3101 (d). If defendants wish to expedite expert discovery, they can move in Supreme Court for amendment of the scheduling orders. Should plaintiffs fail to produce any evidence of causation, then defendants can move for and obtain summary judgment.

Supreme Court properly denied plaintiff Hamilton's CPLR 4511 motion to take judicial notice of 42 USC § 4851. That provision contains Congress's findings justifying legislation aimed at reducing lead — findings such as: "at low levels, lead poisoning in children causes intelligence quotient deficiencies, reading and learning disabilities, impaired hearing, reduced attention span, hyperactivity, and behavior problems;" and "the Federal Government must take a leadership role in building the infrastructure—including an informed public, State and local delivery systems, certified inspectors, contractors, and laboratories, trained workers, and available financing and insurance—necessary to ensure that the national goal of eliminating lead-based paint hazards in housing can be achieved as expeditiously as possible" (42 USC § 4851 [2], [8]). Hamilton apparently sought judicial notice of the federal provision in order to avoid having to prove general causation — that lead paint exposure can cause some or all of his alleged injuries.

CPLR 4511 allows a court to take notice of federal and foreign state law, not facts, that is relevant to a proceeding (CPLR 4511; Pfleuger v Pfleuger, 304 NY 148, 151 [1952]). The congressional findings in support of legislation seeking to reduce amounts of lead in homes, though codified in a federal statute, are not "law" that is relevant to Hamilton's case. Taking judicial notice of them under CPLR 4511 would be inappropriate.

What Hamilton really wanted was to have Supreme Court take judicial notice of the fact that exposure to lead paint can cause injury. "To be sure, a court may take judicial notice of facts which are capable of immediate and accurate determination by resort to easily accessible sources of indisputable accuracy" (People v Jones, 73 NY2d 427, 431 [1989] [internal quotation marks omitted]). But general causation, at least in scientifically complex cases, is not such a fact. Hamilton needs to prove, through scientific evidence, that exposure to lead-based paint can cause the injuries of which he complains (see Parker v Mobile Oil Corp., 7 NY3d 434, 448 [2006]). He cannot avoid that burden simply because Congress, in statutory preambles, has opined on the dangers of lead-based paint.Accordingly, in each case, the order of the Appellate Division should be modified, without costs, by remitting to Supreme Court for further [*5]proceedings in accordance with this opinion and, as so modified, affirmed, and the certified question answered in the negative.

Motion to strike. Motion to quash

22 NYCRR 202.21 Note of issue and certificate of readiness

CPLR § 3101 Scope of disclosure

Jacobs v Johnston, 2012 NY Slip Op 05390 (2nd Dept. 2012)

Since the defendant moved to vacate the note of issue within the time prescribed for doing so pursuant to 22 NYCRR 202.21(e), and clearly demonstrated that the case was not ready for trial, that branch of the defendant's motion which was to vacate the note of issue and, in effect, to compel the deposition of a nonparty witness should have been granted (see CPLR 2103[b][2]; Gallo v SCG Select Carrier Group, L.P., 91 AD3d 714; Tirado v Miller, 75 AD3d 153, 157). Furthermore, since the defendant timely moved to vacate the note of issue, he was required only to demonstrate why the case was not ready for trial, and was not required to establish that additional discovery was necessary because unusual or unanticipated circumstances had developed subsequent to the filing of the note of issue (see 22 NYCRR 202.21[d], [e]; Mosley v Flavius, 13 AD3d 346; Rizzo v DeSimone, 287 AD2d 609, 610; Perla v Wilson, 287 AD2d 606; Audiovox Corp. v Benyamini, 265 AD2d 135, 139).

In opposition to the plaintiff's cross motion to quash the subpoena served by the defendant upon the nonparty witness, the defendant demonstrated, inter alia, that the disclosure sought was relevant, material, and necessary to the defense of the action (see CPLR 3101[a][4]; Kondratick v Orthodox Church in Am., 73 AD3d 708, 709; Tenore v Tenore, 45 AD3d 571, 571-572; [*2]Thorson v New York City Tr. Auth., 305 AD2d 666; Maxwell v Snapper, Inc., 249 AD2d 374). Contrary to the plaintiff's contention, the defendant did not waive his right to seek discovery from the nonparty witness by failing to raise an objection with respect thereto at the certification conference. Since the identity of the nonparty witness was not made known to the defendant until after the date of the certification conference, and the defendant timely moved to vacate the note of issue, the defendant could not be deemed to have waived his right to compel the nonparty witness to comply with the subpoena and to appear for a deposition (cf. Jones v Grand Opal Constr. Corp., 64 AD3d 543, 544; James v New York City Tr. Auth., 294 AD2d 471, 472). Accordingly, the plaintiff's cross motion to quash the subpoena should have been denied.

 

Sanctions and Contempt (civil and criminal)

Visual Arts Found., Inc. v Egnasko, 2012 NY Slip Op 00646 (1st Dept., 2012)

The motion court improperly denied plaintiff's request for sanctions in its entirety. The court is directed to conduct a hearing to quantify the damages that plaintiff incurred from those [*2]aspects of defendants' litigation conduct that were "frivolous," including, impending discovery, the filing of meritless counterclaims and conduct which was "undertaken primarily to delay or prolong the resolution of the litigation" (22 NYCRR 130-1.1[c][2]). We note that, as Louis Egnasko is presently incarcerated, the hearing may be conducted through written submissions (see 22 NYCRR 130-1.1[d]).

Pentalpha Enters., Ltd. v Cooper & Dunham LLP, 2012 NY Slip Op 00044 (1st Dept., 2012)

Plaintiffs now appeal, having lost in no fewer than four courts of competent jurisdiction, and despite having been warned in the court below that any further prosecution of this matter [*2]would be dangerously close to sanctionable conduct. We are of the opinion that plaintiffs' appeal must, again, be denied on the merits; and that, with this appeal, the conduct of plaintiffs and their attorneys has crossed the line from zealous advocacy to that which is sanctionable under 22 NYCRR 130-1.1.

Commissioners of State Ins. Fund v Kernell, 2012 NY Slip Op 00482 (2nd Dept., 2012)

Contrary to the defendant's contention, the Supreme Court properly denied that branch of his motion which was to hold the plaintiff's counsel in civil contempt. "In order to find that contempt has occurred in a given case, it must be determined that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect," and "[i]t must appear, with reasonable certainty, that the order has been disobeyed" (Matter of McCormick v Axelrod, 59 NY2d 574, 583; see Rubin v Rubin, 78 AD3d 812, 813). In this case, there was no order of the court in effect, expressing an unequivocal mandate, which the plaintiff's counsel disobeyed. Accordingly, the Supreme Court properly denied that branch of the defendant's motion (see Wheels Am. N.Y., Ltd v Montalvo, 50 AD3d 1130, 1130-1131).

The Supreme Court improvidently exercised its discretion, however, in denying that branch of the defendant's motion which was to impose sanctions upon the plaintiff and its counsel pursuant to 22 NYCRR 130-1.1. The defendant demonstrated that the plaintiff and its counsel engaged in frivolous conduct in that they either did not have the necessary documentation upon which to formulate or support a meritorious claim, or, being in possession of the documentation, knew or should have known, based upon prior litigation and correspondence from the defendant, that the plaintiff's claim was completely without merit in law. Under the circumstances, we deem it [*2]appropriate to impose sanctions upon the plaintiff in the sum of $2,500, and upon the plaintiff's counsel in the sum of $1,000 (see 22 NYCRR 130-1.1), payable pursuant to 22 NYCRR 130-1.3.

HSBC Mtge. Corp. v Oberlander, 2012 NY Slip Op 00335 (2nd Dept., 2012)

"A motion to punish a party for civil contempt is addressed to the sound discretion of the motion court" (Chambers v Old Stone Hill Rd. Assoc., 66 AD3d 944, 946; see Educational Reading Aids Corp. v Young, 175 AD2d 152). "In order to prevail on such a motion, the moving party must demonstrate that the party charged with contempt violated a clear and unequivocal mandate of the court, thereby prejudicing the moving party's rights" (Bais Yoel Ohel Feige v Congregation Yetev Lev D'Satmar of Kiryas Joel, Inc., 78 AD3d 626, 626; see McCain v Dinkins, 84 NY2d 216, 226; Chambers v Old Stone Hill Rd. Assoc., 66 AD3d at 946; Matter of Rothschild v Edwards, 63 AD3d 744, 745; Galanos v Galanos, 46 AD3d 507, 508; Rienzi v Rienzi, 23 AD3d 447, 449).

Under the circumstances of this case, the Supreme Court providently exercised its discretion in denying that branch of the motion of the defendant David Oberlander which was to hold the plaintiff and its attorneys in civil contempt for transferring title to the subject real property while a stay pending the hearing and determination of an appeal was in effect. Oberlander failed to meet his burden so as to warrant holding the plaintiff and its attorneys in civil contempt.

Town Bd. of Town of Southampton v R.K.B. Realty, LLC, 2012 NY Slip Op 00200 (2nd Dept., 2012)

"To sustain a finding of either civil or criminal contempt based on an alleged violation of a court order it is necessary to establish that a lawful order of the court clearly expressing an unequivocal mandate was in effect," that "the order has been disobeyed," and that the charged party "had knowledge of the court's order" (Matter of Department of Envtl. Protection of City of N.Y. v Department of Envtl. Conservation of State of N.Y., 70 NY2d 233, 240; see Town of Copake v 13 Lackawanna Props., LLC, 73 AD3d 1308, 1309). The same act may be punishable as both a criminal and civil contempt (see Town of Copake v 13 Lackawanna Props., LLC, 73 AD3d at 1309). Civil contempt must be proven by clear and convincing evidence and requires a showing that the rights of a party have been prejudiced (see McCain v Dinkins, 84 NY2d 216, 226; Incorporated Vil. of Plandome Manor v Ioannou, 54 AD3d 365, 366). Such a showing is not needed to prove criminal contempt "since the right of the private parties to the litigation is not the controlling factor" (Matter of Department of Envtl. Protection of City of N.Y. v Department of Envtl. Conservation of State of N.Y., 70 NY2d at 240). "A key distinguishing element between civil and criminal contempt is the degree of willfulness of the subject conduct. To be found guilty of criminal contempt, the contemnor usually must be shown to have violated the order with a higher degree of willfulness than is required in a civil contempt proceeding" (id.; McCain v Dinkins, 84 NY2d at 226; Dalessio v Kressler, 6 AD3d 57, 66). Moreover, criminal contempt must be proven beyond a reasonable doubt (see Muraca v

(Restored): 202.21 and 202.27. A peculiar set of facts.

22 NYCRR 202.21 Note of issue and certificate of readiness

22 NYCRR 202.27 Defaults

Soo Ji Kim v Seney, 2012 NY Slip Op 00774 (2nd Dept., 2012)

On January 25, 2010, the Supreme Court struck the action from the trial calendar after the plaintiff appeared for the calendar call but was not ready for trial. There was no order vacating the note of issue pursuant to 22 NYCRR 202.21(e). Accordingly, contrary to the defendant's contention, in moving to restore the action to the trial calendar, the plaintiff was not required to submit a certificate of readiness or show that the case was ready for trial (see 22 NYCRR 202.21[f]; Ross v Brookdale Univ. Hosp. & Med. Ctr., 54 AD3d 370, 371). Furthermore, since the plaintiff moved to restore the action to the trial calendar within one year of the date it was stricken, restoration was automatic (see CPLR 3404; Ross v Brookdale Univ. Hosp. & Med. Ctr., 54 AD3d at 371; Kohn v Citigroup, Inc., 29 AD3d 530, 532; Basetti v Nour, 287 AD2d 126, 133-134).

Moreover, after the matter was stricken from the trial calendar, there was no order [*2]dismissing the action pursuant to 22 NYCRR 202.27 (see Mitskevitch v City of New York, 78 AD3d 1137, 1138; Casavecchia v Mizrahi, 62 AD3d 741, 742; Burdick v Marcus, 17 AD3d 388). Accordingly, the plaintiff's motion to reinstate the note of issue should have been granted, and, upon renewal and reargument, the plaintiff's motion to restore the action to the trial calendar should have been granted.

No Sua Sponte

Gosine v Sahabir, 2012 NY Slip Op 00751 (2nd Dept., 2012)

The Supreme Court improvidently exercised its discretion in, sua sponte, appointing a receiver to operate the business affairs of Sanatan Dharma Maha Sabha of the West Indies, Inc. (hereinafter SDMS), until an upcoming election of the board of trustees, since no party asked for that relief, and there was no evidence that SDMS's assets were susceptible to waste or that such a drastic remedy was warranted (see Quick v Quick, 69 AD3d 828; Ugiri Progressive Community, Inc. v Ukwuozo, 57 AD3d 656; Vardaris Tech, Inc. v Paleros Inc., 49 AD3d 631, 632; Natoli v Milazzo, 35 AD3d 823; Rotary Watches [USA] v Greene, 266 AD2d 527; Schachner v Sikowitz, 94 AD2d 709).

The Supreme Court erred in granting the plaintiffs' motion, inter alia, to confirm the results of the election purportedly conducted on December 3, 2010. The record establishes that the receiver adjourned the meeting prior to opening the polls. While the minutes of the meeting indicate that the plaintiff Vena Gosine collected ballots after the meeting was adjourned, she was not a presiding officer authorized to "receive the votes, judge the qualifications of the voters, and declare the results of the votes cast" under SDMS's constitution. Accordingly, the plaintiffs' motion, among other things, to confirm the results of the purported election should have been denied.

Since the Supreme Court considered neither the defendants' motion to disqualify the plaintiffs' counsel, nor their cross motion pursuant to 22 NYCRR 130—1.1 to impose sanctions on the plaintiffs and their attorney, on the merits, we must remit the matter to the Supreme Court, Queens County, for determination of the motion and cross motion (see Hunter Sports Shooting Grounds, Inc. v Foley, 73 AD3d 702). Under the circumstances of this case, we deem it appropriate to remit the matter to the Supreme Court, Queens County, for further proceedings before a different Justice.

Ouch

Weisburst v Dreifus, 2011 NY Slip Op 08207 (1st Dept., 2011)

The court did not abuse its discretion in finding that defendant's underlying motion for an emergency stay contained "false charges [against plaintiff] that were expressed by means of a tortured and very partial rendering of the facts that can only have been deliberately crafted to mislead" and was therefore frivolous within the meaning of 22 NYCRR 130-1.1 (see e.g. Rogovin v Rogovin, 27 AD3d 233 [2006]).

22 NYCRR 125.1 Engagement of counsel

22 NYCRR 125.1 Engagement of counsel

22 NYCRR 202.27 Defaults

Wahid v Pour, 2011 NY Slip Op 08585 (2nd Dept., 2011)

Under the circumstances of this case, the Supreme Court properly dismissed the complaint insofar as asserted against the defendants Fred Khalili and Kings Dentistry upon the plaintiff's failure to appear at a scheduled conference (see 22 NYCRR 202.27[b]; Syed v Fedor, 296 AD2d 399). Contrary to the plaintiff's contention, his counsel's purported "Affirmation of Engagement" (hereinafter the affirmation) did not excuse his counsel's failure to appear at the scheduled conference. The affirmation did not comply with 22 NYCRR 125.1(e)(1), as the record did not indicate that the affirmation was filed with the Supreme Court together with proof of service on all parties (see 22 NYCRR 125.1[e][1]; Matter of Sutton v Mitrany, 30 AD3d 678, 679). Furthermore, the affirmation failed to comply with 22 NYCRR 125.1(e)(1) because it did not indicate the general nature of the action in which counsel was allegedly engaged, and did not include the probable date and time of the conclusion of the engagement (see 22 NYCRR 125.1[e][1][ii], [v]; Matter of Sutton v Mitrany, 30 AD3d at 679).

 

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Section 125.1 Engagement of counsel.

(a) Engagement of counsel shall be a ground for adjournment of an action or proceeding in accordance with this rule.

(b) Engagement of counsel shall mean actual engagement on trial or in argument before any State or Federal trial or appellate court, or in a proceeding conducted pursuant to rule 3405 of the CPLR and the rules promulgated thereunder.

(c) Subject to the provisions of subdivision (f) of this section, where an attorney has conflicting engagements in the same court or different courts, the affected courts shall determine in which matters adjournments shall be granted and in which matters the parties shall proceed. In making such decisions, they shall, to the extent lawful and practicable, give priority to actions and proceedings in the order in which matters are listed below:

(1) child protective proceedings;

(2) criminal proceedings or juvenile delinquency proceedings wherein the defendant or respondent is incarcerated;

(3) proceedings based on acts which constitute felonies;

(4) proceedings based on acts which constitute misdemeanors;

(5) matrimonial actions and proceedings; and

(6) civil actions and proceedings, including proceedings conducted pursuant to rule 3405 of the CPLR and the rules promulgated thereunder. Where an attorney's conflicting engagements include two or more engagements within any one of these categories of actions and proceedings, as between those engagements the affected courts shall give priority to those involving jury trials.

(d) Subject to the provisions of subdivisions (c) and (f) herein, where an attorney has conflicting engagements, such attorney must proceed in whichever matter is entitled to a statutory preference or, if there is none and none of his or her engagements involves exceptional circumstances, in the particular matter first scheduled for the date on which the conflict arises. Matters involving exceptional circumstances shall be given priority over all others, except those entitled to statutory preference. A court may find exceptional circumstances where: (1) there are four or more attorneys engaged for a trial, hearing or appellate argument therein; (2) a party or material witness will be available for a trial or hearing therein only on the date on which the conflict arises or on any subsequent date during the period such trial or hearing reasonably can be expected to extend; (3) a party or material witness thereto is afflicted with an illness which, because of its nature, requires that the trial of the action or proceeding be held on the date on which the conflict arises; or (4) a trial therein must be conducted within statutory time limits and, if trial of the matter is not held on the date on which the conflict arises, there is a reasonable probability that the time limit applicable thereto will elapse.

(e)(1) Each engagement shall be proved by affidavit or affirmation, filed with the court together with proof of service on all parties, setting forth:

(i) the title of the action or proceeding in which counsel is engaged;

(ii) its general nature;

(iii) the court and part in which it is scheduled or, if it is a proceeding conducted pursuant to rule 3405 of the CPLR, the court in which the underlying action was commenced;

(iv) the name of the judge or panel chairman who will preside over it; and

(v) the date and time the engagement is to commence, or did commence, and the date and time of its probable conclusion.

(2) In determining an application for adjournment on the ground of engagement elsewhere, the court shall consider the affidavit of engagement and may make such further inquiry as it deems necessary, including:

(i) the dates on which each of the actions or proceedings involved were scheduled for the date on which they conflict;

(ii) whether or not the actions or proceedings involved were marked peremptorily for trial or were the subject of some other special marking;

(iii) the number of times each of the actions or proceedings involved was previously adjourned, and upon whose application;

(iv) if any of the attorneys representing a party to one of the actions or proceedings involved is a member or associate of a law firm or office employing more than one attorney, the number of members or associates of his or her firm or office also serving as cocounsel or otherwise involved in such action or proceeding, and their respective engagements elsewhere; and

(v) if applicable, the period of time each of the actions or proceedings involved has been on a calendar from which it has been called.

(f) Where a trial already has commenced, and an attorney for one of the parties has an engagement elsewhere, there shall be no adjournment of the ongoing trial except in the sole discretion of the judge presiding thereat; provided that the judge presiding shall grant a reasonable adjournment where the engagement is in an appellate court.

(g) This subdivision shall apply where a date for trial of action or proceeding is fixed at least two months in advance thereof upon the consent of all attorneys or by the court. In such event, the attorneys previously designated as trial counsel must appear for trial on that date. If any of such attorneys is actually engaged on trial elsewhere, he or she must produce substitute trial counsel. If neither trial counsel nor substitute trial counsel is ready to try the case on the scheduled date, the court may impose any sanctions permitted by law.

Bad Subpoena: everyone gets sanctioned

22 NYCRR 130-1.1 Costs; sanctions

Duval v Duval, 2011 NY Slip Op 05657 (App. Div., 2nd 2011)

Contrary to the plaintiff's contention, under the particular circumstances of this case, the appeal from the judgment brings up for review the orders dated January 22, 2010, and January 26, 2010 (see CPLR 5501[a][1]).

The Supreme Court improvidently exercised its discretion in denying that branch of the defendant's motion which was to impose sanctions upon the plaintiff and her counsel pursuant to 22 NYCRR 130-1.1. Under the circumstances presented, the conduct of the plaintiff and her counsel in obtaining a "so-ordered" subpoena duces tecum and serving it upon Long Island Jewish Medical Center to obtain the defendant's medical records prior to filing a note of issue and before a trial date was set was frivolous within the meaning of 22 NYCRR 130-1.1(c), as it was completely without merit in law and cannot be supported by a reasonable argument for an extension, modification, or reversal of existing law (see 22 NYCRR 130-1.1[c]). Contrary to the defendant's contention, pretrial disclosure on the issue of child custody is permissible with respect to a parent's  health, since the parties to a contested custody proceeding place their physical and mental conditions in issue (see Torelli v Torelli, 50 AD3d 1125, 1125; Anonymous v Anonymous, 5 AD3d 516, 517; Rosenblitt v Rosenblitt, 107 AD2d 292, 293-294). Here, however, in her attempt to obtain pretrial disclosure of the defendant's medical records in connection with the issue of child custody, the plaintiff sought a "so-ordered" trial subpoena duces tecum from the Supreme Court, thereby obviating the need to obtain the defendant's written authorization to release the records. The plaintiff also failed to serve the subpoena on the defendant in a timely manner, thus depriving him of the opportunity to request withdrawal of the subpoena or to make a timely motion to quash. Moreover, it can be inferred from the record that the challenged conduct was designed primarily to harass and maliciously injure the defendant (see 22 NYCRR 130-1.1[c]). In view of the foregoing, that branch of the defendant's motion which was to impose sanctions upon the plaintiff and her counsel pursuant to 22 NYCRR 130-1.1 should have been granted, and accordingly, we remit the matter to the Supreme Court, Nassau County, for a hearing on the issue of the amount of an appropriate sanction to be imposed upon the plaintiff and her counsel.

Furthermore, the Supreme Court improvidently exercised its discretion in denying, with limited exception, that branch of the defendant's motion which was to suppress all information relating to the contents of records produced in response to the subpoena duces tecum served upon Long Island Jewish Medical Center and to preclude the plaintiff from using such information. Under the circumstances of this case, suppression and preclusion, along with the imposition of a sanction, were the appropriate remedies for the improper manner in which those records were obtained (see CPLR 3103[c]). Accordingly, that branch of the defendant's motion which was to suppress all information relating to the contents of records produced in response to the subpoena served upon Long Island Jewish Medical Center and to preclude the plaintiff from using such information should have been granted in its entirety, with a directive that the plaintiff and her counsel deliver all records produced in response to the aforementioned subpoena to the defendant and to affirm that all such records, and any copies thereof, have been so returned and/or destroyed and were not transmitted to any third party.