Current through Register Vol. 46, No. 39, September 25, 2024
(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) of this section, 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.
