Chief Administrative Judge Lawrence K. Mark’s December 29, 2020 Administrative Order includes several new rules that will be extended from the Commercial Division to other civil courts, including Supreme Court, the jurisdiction of most medical malpractice cases in New York State.  The rules will become effective Monday, February 1, 2021.

Motion practice, including discovery and summary judgment motions, is typical and “par for the course” in medical malpractice’s complex litigation, which often entails intricately intertwined medical and legal issues; extensive pre-trial discovery and deposition testimony; numerous plaintiff, non-party, and defense witnesses; years of medical care and treatment; and severe damages.  The following new court rules will affect both plaintiffs’ and defendants’ motions, most notably in the context of dispositive summary judgment motions.

Rule 202.8-b limits the length of motion papers.  Under subsection (a), affidavits, affirmations, briefs and memoranda of law are limited to 7,000 words (approximately 29 double-spaced pages), and reply papers are limited to 4,200 words (approximately 18 double-spaced pages).  However, per subsection (b), the word count does not include the caption, tables of contents and authorities, or the signature block.  Subsection (c) dictates each such document will also contain counsel’s certification of compliance with the word limit.  Rule 202.8-b(d) does provide the option of applying (orally or by letter), on notice to all parties, to permit submission of affidavits, affirmations, briefs, or memoranda that exceed the word limitations.  Notwithstanding, if the court grants permission for an oversize submission, the party must still submit the certification, setting forth the word count and any court limit.  This Rule ultimately provides a uniform standard for motion papers amongst the various IAS parts and judges, and will help prevent verbosity.

Rule 202.8-c prohibits sur-reply papers (including correspondences), unless there is express advance permission.  Although counsel may submit a letter to the court citing a relevant post-submission court decision, there will be no additional argument.  Materials submitted in violation of this rule will not be read or considered, and counsel should not respond to such materials.  This provides a clear endpoint for the consideration of motion papers, and will help expedite motion submissions.

Rule 202.8-d mandates Orders to Show Cause shall only be brought in the context of genuine urgency, a required stay or a statutory mandate.  Reply papers will not be allowed (absent express court permission).  This limit on the usage and content of Orders to Show Cause helps ensure they will be utilized in proper, discrete circumstances, and will expedite the submission of corresponding papers.

Rule 202.8-g introduces a new statement of material facts in summary judgment motions.  Under subsection (a), summary judgment motions (except CPLR 3213 motions made in lieu of a complaint) must now contain a separate statement of material facts, to which the movant submits there is no genuine issue to be tried.  Conversely, per subsection (b), opposition papers must now respond to each numbered paragraph of the movant’s statement, and if necessary, contain a separate statement of material facts to which the opponent submits there is a genuine triable issue.  Pursuant to subsection (c), each paragraph of the movant’s statement will be deemed admitted unless “specifically controverted” by the opponent.  Subsection (d) dictates that each statement of material fact must be followed by citation to evidence.  This mirrors the federal court, where separate statements of material facts are also required; sets the context for the motion; and spotlights the summary judgment standard: whether there is a triable issue of material fact.

Rule 202.20-f introduces new good faith requirements for resolving discovery disputes before engaging in motion practice.  Unless there are exigent circumstances, prior to contacting the Court, the parties must consult with each other, in person or telephonically, in a good faith effort to resolve disclosure disputes.  If the dispute cannot be resolved other than through motion practice, the discovery motion must contain an affirmation/affidavit attesting to the conference, including the corresponding date, time, length of time, and persons participating.  If a conference cannot be conducted due to the unreasonable failure or refusal of an adverse party, the movant shall detail the efforts to obtain such a conference and the response received.

Of note, counsel’s failure to comply with rule 202.20-f may result in denial of a discovery motion, without prejudice and leave to renew once the rule has been complied with, or may result in such motion being held in abeyance until informal court resolution proceedings are held.  This Rule reinforces the “good faith affirmation” requirement contained in Uniform Civil Rule 202.7, and requires more detailed documentation of counsel’s good faith efforts to resolve discovery disputes.  We can expect a corresponding decrease in discovery motion practice by both plaintiffs and defendants.

In order to effectively make and oppose medical malpractice motions, it is critical for both plaintiffs and defendants to familiarize themselves with and remain cognizant of Rules 202.8 and 202.20.  The parties will not only need to meet the requirements of the CPLR and caselaw, but will also need to meet the requirements of the new court rules, to successfully advocate for their clients and positions.

This alert does not purport to be a substitute for advice of counsel on specific matters.

Harris Beach has offices throughout New York State, including Albany, Buffalo, Ithaca, Long Island, New York City, Rochester, Saratoga Springs, Syracuse and White Plains, as well as New Haven, Connecticut and Newark, New Jersey.