N.Y. Comp. Codes R. & Regs. tit. 22 § 670.3

Current through Register Vol. 46, No. 45, November 2, 2024

Section 670.3 - Initial filings; active management of causes; settlement or mediation program

(a)Initial filings.

(1) In all civil matters, counsel for the appellant or the petitioner shall file the original plus one copy, and serve one copy, of the papers referred to in section 1250.3(a) of this Title.

(2) Where an appeal is taken in a criminal matter, the clerk of the court of original instance shall execute an initial information statement on a form approved by the court and shall transmit it together with a copy of the notice of appeal and the order of sentence and commitment, if any, to the clerk of this court.

(3) An initial informational statement relating to attorney matters shall be filed in connection with attorney disciplinary proceedings instituted in this court and applications made to this court pursuant to sections 690.17 and 690.19 of this Title.

(4) In all other actions or proceedings instituted in this court, and applications pursuant to CPLR 5704, an initial informational statement shall be filed.

(5) Where the appeal is taken from an order or judgment issued in an action commenced under the provisions of CPLR 214-g, counsel for the appellant shall so indicate in the case type section of the informational statement. The clerk of the court from which the appeal is taken shall notify this court when transmitting such an informational statement to this court pursuant to section 1250.3(a) of this Title.

(b)Active management.

(1) The following appeals shall be actively managed:

(i) all appeals from orders of the Family Court, and any other proceedings in which the welfare, custody or parental access of children is at issue; and

(ii) all appeals from orders and judgments issued in actions commenced under CPLR 214-g.

(2) In all actively managed matters, the clerk shall issue a scheduling order or orders directing the parties to take specified action to expedite the prosecution thereof, including but not limited to the ordering of the transcript of the proceedings and the filing of proof of payment therefor, the making of motions, the perfection of the cause, and the filing of briefs. Notwithstanding any of the time limitations set forth in this part or Part 1250 of this Title, a scheduling order shall set forth the date or dates on or before which such specified action shall be taken.

(3) If any party shall establish good cause why there cannot be compliance with the provisions of a scheduling order, the clerk may amend the same consistent with the objective of insuring expedited prosecution of the cause. An application to amend a scheduling order shall be made by letter, addressed to the clerk, with a copy to the other parties to the cause. The determination of the clerk in amending or declining to amend a scheduling order shall be reviewable by motion to the court on notice pursuant to section 1250.4 of this Title.

(4) Upon the default of any party in complying with the provisions of a scheduling order, the clerk shall issue an order to show cause, on notice, why the cause should not be dismissed or such other sanction be imposed as the court may deem appropriate.

(c)Pre-perfection civil appeals management program.

(1) The court, in those cases in which it deems it appropriate, shall issue a notice directing the attorneys for the parties and/or the parties themselves, as well as any other individual whose attendance the court may require, to attend a pre-perfection conference before a justice of this court or such other person as it may designate, to consider the possibility of settlement, the limitation of the issues, and any other matters which the designated justice or other person determines may aid in the disposition of the appeal or proceeding.

(2) Requests for adjournments shall be addressed to the pre-perfection civil appeals management program administrator. Such requests shall be determined by the administrator or special referee designated to conduct the conference, whose determination shall be final. Absent unusual circumstances, no adjournment shall be granted unless requested at least three business days prior to the scheduled date.

(3) Pre-perfection conferences shall be deemed appearances before this court. Any attorney or party who, without good cause shown, fails to appear for a regularly scheduled pre-perfection conference, or who fails to comply with the terms of a stipulation or order entered following a pre-argument conference, shall be subject to the imposition of such costs and/or sanctions as the court may direct. Pre-perfection conferences shall constitute actual engagements before this court for the purposes of Part 125 of the Rules of the Chief Administrator of the Courts (Part 125 of this Title).

(d)Mandatory civil appeals mediation program.

(1) Establishment, purpose and scope of program. The Appellate Division, Second Department hereby establishes a mandatory civil appeal mediation program (the program). Appeals from orders of the Family Court are excluded from this requirement, provided, however, that counsel and the parties to perfected Family Court appeals involving the custody of, or access to, children may jointly request, by letter application to the clerk of the court, that the particular appeal be designated for mediation.

(2) Mandatory mediation; notice of reference.

(i) The clerk of the court shall cause civil appeals which have been perfected to be designated for mandatory mediation.

(ii) Upon such designation, the clerk of the court, shall cause to be issued a notice of reference, which shall direct the parties to the appeal and their counsel, as well as any other individual whose attendance the court may require, to attend an initial, 90-minute session, without charge, before a designated special master identified in that notice. The notice of reference shall set forth the date, time, and place of the initial mediation session. Counsel with knowledge of the matter on appeal and who is prepared to engage in meaningful settlement discussions and parties who are natural persons are required to attend the mediation in person. In the event that a party is not a natural person but a legal entity, such as a corporation or limited liability company, such entity is required to have present at the mediation a representative of the entity who has the authority to make binding decisions on behalf of the entity.

(iii) Parties and counsel who wish to continue mediation beyond the initial 90-minute session may continue that session or schedule additional sessions as agreed upon with the special master. Special masters shall be entitled to receive such compensation from the parties for such continued or additional sessions as may be agreed upon in writing, provided that the initial session shall remain free-of-charge. At the conclusion of the mediation the special master shall not serve in any other capacity relative to the litigation that was the subject of the mediation without the consent of the parties.

(iv) Requests for adjournments shall be addressed by e-mail to the special master, with copies sent simultaneously to all counsel or unrepresented parties. Such requests shall be determined by the special master, whose determination shall be final. Absent unusual circumstances, no adjournment shall be granted unless requested at least three business days prior to the scheduled date. In no event may the initial mediation be adjourned more than three times or for a total of more than 30 days.

(v) Mediation sessions shall be deemed appearances before this court. Failure of the parties to the appeal and/or their counsel with knowledge of the matter on appeal who is prepared to engage in meaningful settlement discussions to appear or to appear on time may result in the imposition of sanctions pursuant to Part 130 of the Rules of the Chief Administer of the Courts (Part 130 of this Title). The initial mediation session shall constitute an actual engagement before this court for the purposes of Part 125 of the Rules of the Chief Administrator of the Courts (Part 125 of this Title).

(vi) At least five business days prior to the initial session, counsel to the parties, or a self-represented party, shall provide the special master with copies of the order or judgment appealed from, the decision of the trial court, the briefs or memoranda submitted by the parties to the trial court, the briefs, if any, filed with this court, and any other information necessary for the effective negotiation and resolution of the issues involved. The special master may request a conference call with both counsel regarding any preliminary matters.

(vii) Within five business days after the conclusion of the mediation sessions, the special master shall send a report (report of the special master) to the clerk of the court and to counsel for the parties stating the date of the initial session and whether each party and counsel appeared at the initial session, the dates of any subsequent scheduled sessions, whether the parties reached partial, complete, or no agreement on the issues, and whether a stipulation of withdrawal of the appeal has been executed. The special master shall not disclose any other information discussed during the mediation to the court, and the use of any such information is subject to CPLR section 4547.

(3) The role of the court.

The program is conducted under court auspices and pursuant to these rules. The pendency of mediation will not affect, or delay, the progress of the appeal on the court's calendar. Unless an agreement is reached in mediation and the appeal is wholly or partially withdrawn, the appeal will proceed in accordance with the regular processes of the court and will be heard and determined.

(4) The roster of special masters.

The clerk of the court shall maintain a list of approved special masters. It shall consist of individuals who the presiding justice of this court has concluded possess the requisite training and experience as well as the appropriate temperament, character, and discretion. Approved special masters may be add to and removed from the roster of special masters at the discretion of the presiding justice.

(5) Immunity.

Special masters serving in this program shall be immune from suit as a result of any conduct or omission during the performance of duties in that capacity to the extent permissible by law.

N.Y. Comp. Codes R. & Regs. Tit. 22 § 670.3