Current through Register Vol. 46, No. 39, September 25, 2024
(a)
Applicability of Part 202 and Section
202.16.
(1) Part 202 shall be applicable to civil
actions and proceedings in the Supreme Court, including, but not limited to,
matrimonial actions and proceedings, except as otherwise provided in this
section 202.16 and in sections
202.16 -a, 202.16-b, and 202.18,
which sections shall control in the event of conflict.
(2) This section shall be applicable to all
contested actions and proceedings in the Supreme Court in which statements of
net worth are required by section
236 of
the Domestic Relations Law to be filed and in which a judicial determination
may be made with respect to alimony, counsel fees, pendente lite, maintenance,
custody and visitation, child support, or the equitable distribution of
property, including those referred to Family Court by the Supreme Court
pursuant to section
464 of the
Family Court Act.
(b)
Form of Statements of Net Worth.
Sworn statements of net worth, except as provided in
subdivision (k) of this section, exchanged and filed with the court pursuant to
section
236 of
the Domestic Relations Law, shall be in substantial compliance with the
Statement of Net Worth form contained in appendix A of this Part (see Appendix
A, following part 218).
(c)
Retainer Agreements
(1) A signed copy of the
attorney's retainer agreement with the client shall accompany the statement of
net worth filed with the court, and the court shall examine the agreement to
assure that it conforms to Appellate Division attorney conduct and disciplinary
rules. Where substitution of counsel occurs after the filing with the court of
the net worth statement, a signed copy of the attorney's retainer agreement
shall be filed with the court within 10 days of its execution.
(2) An attorney seeking to obtain an interest
in any property of his or her client to secure payment of the attorney's fee
shall make application to the court for approval of said interest on notice to
the client and to his or her adversary. The application may be granted only
after the court reviews the finances of the parties and an application for
attorney's fees.
(d)
Request for Judicial Intervention.
A request for judicial intervention shall be filed with the
court by the plaintiff no later than 45 days from the date of service of the
summons and complaint or summons with notice upon the defendant, unless both
parties file a notice of no necessity with the court, in which event the
request for judicial intervention may be filed no later than 120 days from the
date of service of the summons and complaint or summons with notice upon the
defendant. Notwithstanding section
202.6(a) of this
Part, the court shall accept a request for judicial intervention that is not
accompanied by other papers to be filed in court.
(e) Certification of Paper and Obligations of
Counsel Appearing Before the Court
(1) Every
paper served on another party or filed or submitted to the court in a
matrimonial action shall be signed as provided in section
130-1.1a of this Title.
(2) Counsel who appear before the court must
be familiar with the case with regard to which they appear and be fully
prepared and authorized to discuss and resolve the issues which are scheduled
to be the subject of the appearance. Failure to comply with this rule may be
treated as a default for purposes of Rule 202.27 and/or may be treated as a
failure to appear for purposes of Rule 130-2.1, provided that, in matrimonial
actions and proceedings, consistent with applicable case law on defaults in
matrimonial actions, failure to comply with this rule may, either in lieu of or
in addition to any other direction, be considered in the determination of any
award of attorney fees or expenses.
(f) Preliminary Conference.
(1) In all actions or proceedings to which
this section of the rules is applicable, a preliminary conference shall be
ordered by the court to be held within 45 days after the action has been
assigned. Such order shall set the time and date for the conference and shall
specify the papers that shall be exchanged between the parties. These papers
must be exchanged no later than 10 days prior to the preliminary conference,
unless the court directs otherwise. These papers shall include:
(i) statements of net worth, which also shall
be filed with the court no later than 10 days prior to the preliminary
conference;
(ii) all paycheck stubs
for the current calendar year and the last paycheck stub for the immediately
preceding calendar year;
(iii) all
filed State and Federal income tax returns for the previous three years,
including both personal returns and returns filed on behalf of any partnership
or closely held corporation of which the party is a partner or
shareholder;
(iv) all W-2 wage and
tax statements, 1099 forms, and K-1 forms for any year in the past three years
in which the party did not file State and Federal income tax returns;
(v) all statements of accounts received
during the past three years from each financial institution in which the party
has maintained any account in which cash or securities are held;
(vi) the statements immediately preceding and
following the date of commencement of the matrimonial action pertaining to:
(a) any policy of life insurance having a
cash or dividend surrender value; and
(b) any deferred compensation plan of any
type or nature in which the party has an interest including, but not limited
to, Individual Retirement Accounts, pensions, profit- sharing plans, Keogh
plans, 401(k) plans and other retirement plans.
(1-a) Where both parties are represented by
counsel, counsel shall consult with each other prior to the preliminary
conference to discuss the matters set forth in paragraph (2) below and in NYCRR
§
202.11 in a good faith effort to
reach agreement on such matters. Notwithstanding NYCRR §
202.11, no prior consultation is
required where either or both of the parties is self-represented. Counsel
shall, prior to or at the conference, submit to the court a writing with
respect to any resolutions reached, which the court shall "so order" if
approved and in proper form.
(1-b)
Both parties personally must be present in court at the time of the conference,
and the judge personally shall address the parties at some time during the
conference.
(2) The matters to be
considered at the conference may include, among other things:
(i) applications for pendente lite relief,
including interim counsel fees;
(ii) compliance with the requirement of
compulsory financial disclosure, including the exchange and filing of a
supplemental statement of net worth indicating material changes in any
previously exchanged and filed statement of net worth, and, including the
number and length of depositions, the number of interrogatories, and agreement
of the parties to comply with Guidelines on Electronically Stored Information.
Unless otherwise stipulated by the parties or ordered by the court,
interrogatories shall be no more than 25 in number including subparts; and
depositions shall be no more than 7 hours long. The Provisions of NYCRR §
202.20 -b(a)(1) limiting the
number of depositions taken by plaintiffs, or by defendants, or by third-party
defendants, shall not apply to matrimonial actions.
(iii) simplification and limitation of the
issues;
(iv) the establishment of a
timetable for the completion of all disclosure proceedings, provided that all
such procedures must be completed and the note of issue filed within six months
from the commencement of the conference, unless otherwise shortened or extended
by the court depending upon the circumstances of the case;
(v) the completion of a preliminary
conference order substantially in the form contained in Appendix "G" to these
rules, with attachments; and
(vi)
any other matters which the court shall deem appropriate.
(3) At the close of the conference, the court
shall direct the parties to stipulate, in writing or on the record, as to all
resolved issues, which the court then shall so order,'' and as to all issues
with respect to fault, custody and finance that remain unresolved. Any issues
with respect to fault, custody and finance that are not specifically described
in writing or on the record at that time may not be raised in the action unless
good cause is shown. The court shall fix a schedule for discovery as to all
unresolved issues and, in a noncomplex case, shall schedule a date for trial
not later than six months from the date of the conference. The court may
appoint an attorney for the infant children, or may direct the parties to file
with the court, within 30 days of the conference, a list of suitable attorneys
for children for selection by the court. The court also may direct that a list
of expert witnesses be filed with the court within 30 days of the conference
from which the court may select a neutral expert to assist the court. The court
shall schedule a compliance conference unless the court dispenses with the
conference based upon a stipulation of compliance filed by the
parties.
(4) Unless the court
excuses their presence, the parties personally must be present in court at the
time of the compliance conference. If the parties are present in court, the
judge personally shall address them at some time during the conference. Where
both parties are represented by counsel, counsel shall consult with each other
prior to the compliance conference in a good faith effort to resolve any
outstanding issues. Notwithstanding NYCRR § 202. 11, no prior consultation is
required where either or both of the parties is self-represented. Counsel
shall, prior to or at the compliance conference, submit to the court a writing
with respect to any resolutions reached, which the court shall "so order" if
approved and in proper form.
(5) In
accordance with Section
202.20 -c(f), absent good cause, a
party may not use at trial or otherwise any document which was not produced in
response to a request for such document or category of document, which request
was not objected to, or, if objected to, such objection was overruled by the
court, provided, however, the court may exercise its discretion to impose such
other, further, or additional penalty for non-disclosure as may be authorized
by law and which may be more appropriate in a matrimonial action than
preclusion or where there is a continuing obligation to update (e.g., updated
tax returns, W-2 statements, etc.).
(6) The Court shall alert the parties to the
requirements of 22 NYCRR §
202.20 -c regarding requests for
documents; §
202.20 -e regarding adherence to
discovery schedule, and §
202.20 -f regarding discovery
disputes, and shall address the issues of potential for default, preclusion,
denial of discovery, drawing inferences, or deeming issues to be true, as well
as sanctions and/or counsel fees in the event default or preclusion or such
other remedies are not appropriate in a matrimonial action.
(g) Expert Witnesses and Other
Trial Matters.
(1) Responses to demands for
expert information pursuant to CPLR section 3101(d) shall be served within 20
days following service of such demands.
(2) Each expert witness whom a party expects
to call at the trial shall file with the court a written report, which shall be
exchanged and filed with the court no later than 60 days before the date set
for trial, and reply reports, if any, shall be exchanged and filed no later
than 30 days before such date. Failure to file with the court a report in
conformance with these requirements may, in the court's discretion, preclude
the use of the expert. Except for good cause shown, the reports exchanged
between the parties shall be the only reports admissible at trial. Late
retention of experts and consequent late submission of reports shall be
permitted only upon a showing of good cause as authorized by CPLR
3101(d)(1)(i). In the discretion of the court, written reports may be used to
substitute for direct testimony at the trial, but the reports shall be
submitted by the expert under oath, and the expert shall be present and
available for cross- examination. In the discretion of the court, in a proper
case, parties may be bound by the expert's report in their direct
case.
(3) Pursuant to NYCRR §
202.26, in cases in which both
parties are represented by counsel and each party has called, or intends to
call, an expert witness on issues of finances (e.g., equitable distribution,
maintenance, child support), the court may direct that, prior to, or during
trial, counsel consult in good faith to identify those aspects of their
respective experts' testimony that are not in dispute. The court may further
direct that any agreements reached in this regard shall be reduced to a written
stipulation. Such consultation shall not be required where one or both parties
is self-represented or where the expert testimony relates to matters of child
custody or parental access, domestic violence, domestic abuse, or child neglect
or abuse.
(4) The provisions of
section 202.20 -a regarding privilege logs
shall not apply to matrimonial actions and proceedings unless the court orders
otherwise.
(5) Parties and
non-parties should adhere to the Electronically Store Information ("ESI")
Guidelines set forth in an Appendix to the Uniform Civil Rules.
(6) At the commencement of the trial or at
such time as the court may direct, each party shall identify in writing for the
court the witnesses it intends to call, the order in which they shall testify
and the estimated length of their testimony, and shall provide a copy of such
witness list to opposing counsel. Counsel shall separately identify for the
court only a list of the witnesses who may be called solely for rebuttal or
with regard to credibility. The court may permit for good cause shown and in
the absence of substantial prejudice, a party to call a witness to testify who
was not identified on the witness list submitted by that party. The estimates
of the length of testimony and the order of witnesses provided by counsel are
advisory only and the court may permit witnesses to be called in a different
order and may permit further testimony from a witness notwithstanding that the
time estimate for such witness has been exceeded.
(h) Statement of Proposed Disposition.
(1) Each party shall exchange a statement
setting forth the following:
(i) the assets
claimed to be marital property;
(ii) the assets claimed to be separate
property;
(iii) an allocation of
debts or liabilities to specific marital or separate assets, where
appropriate;
(iv) the amount
requested for maintenance, indicating and elaborating upon the statutory
factors forming the basis for the maintenance request;
(v) the proposal for equitable distribution,
where appropriate, indicating and elaborating upon the statutory factors
forming the basis for the proposed distribution;
(vi) the proposal for a distributive award,
if requested, including a showing of the need for a distributive
award;
(vii) the proposed plan for
child support, indicating and elaborating upon the statutory factors upon which
the proposal is based; and
(viii)
the proposed plan for custody and visitation of any children involved in the
proceeding, setting forth the reasons therefor.
(2) A copy of any written agreement entered
into by the parties relating to financial arrangements or custody or visitation
shall be annexed to the statement referred to in paragraph (1) of this
subdivision.
(3) The statement
referred to in paragraph (1) of this subdivision, with proof of service upon
the other party, shall, with the note of issue, be filed with the court. The
other party, if he or she has not already done so, shall file with the court a
statement complying with paragraph (1) of this subdivision within 20 days of
such service.
(i) Filing
of Note of Issue.
No action or proceeding to which this section is applicable
shall be deemed ready for trial unless there is compliance with this section by
the party filing the note of issue and certificate of
readiness.
(j) Referral to
Family Court.
In all actions or proceedings to which this section is
applicable referred to the Family Court by the Supreme Court pursuant to
section
464 of the
Family Court Act, all statements, including supplemental statements, exchanged
and filed by the parties pursuant to this section shall be transmitted to the
Family Court with the order of referral.
(k) Motions for Alimony, Maintenance, Counsel
Fees Pendente Lite and Child support (other than under section
237
(c) or
238 of
the Domestic Relations Law).
Unless, on application made to the court, the requirements
of this subdivision be waived for good cause shown, or unless otherwise
expressly provided by any provision of the CPLR or other statute, the following
requirements shall govern motions for alimony, maintenance, counsel fees (other
than a motion made pursuant to section
237
(c) or
238 of
the Domestic Relations Law for counsel fees for services rendered by an
attorney to secure the enforcement of a previously granted order or decree) or
child support or any modification of an award thereof:
(1) Such motion shall be made before or at
the preliminary conference, if practicable.
(2) No motion shall be heard unless the
moving papers include a statement of net worth in the official form prescribed
by subdivision (b) of this section.
(3) No motion for counsel fees and expenses
shall be heard unless the moving papers also include the affidavit of the
movant's attorney stating the moneys, if any, received on account of such
attorney's fee from the movant or any other person on behalf of the movant, the
hourly amount charged by the attorney, the amounts paid, or to be paid, to
counsel and any experts, and any additional costs, disbursements or expenses,
and the moneys such attorney has been promised by, or the agreement made with,
the movant or other persons on behalf of the movant, concerning or in payment
of the fee. Fees and expenses of experts shall include appraisal, accounting,
actuarial, investigative and other fees and expenses (including costs for
processing of NYSCEF documents because of the inability of a self-represented
party that desires to e-file to have computer access or afford internet
accessibility) to enable a spouse to carry on or defend a matrimonial action or
proceeding in the Supreme Court.
(4) The party opposing any motion shall be
deemed to have admitted, for the purpose of the motion but not otherwise, such
facts set forth in the moving party's statement of net worth as are not
controverted in:
(i) a statement of net
worth, in the official form prescribed by this section, completed and sworn to
by the opposing party, and made a part of the answering papers; or
(ii) other sworn statements or affidavits
with respect to any fact which is not feasible to controvert in the opposing
party's statement of net worth.
(5) The failure to comply with the provisions
of this subdivision shall be good cause, in the discretion of the judge
presiding, either:
(i) to draw an inference
favorable to the adverse party with respect to any disputed fact or issue
affected by such failure; or
(ii)
to deny the motion without prejudice to renewal upon compliance with the
provisions of this section.
(6) The notice of motion submitted with any
motion for or related to interim maintenance or child support shall contain a
notation indicating the nature of the motion. Any such motion shall be
determined within 30 days after the motion is submitted for decision.
(7) Upon any application for an award of
counsel fees or fees and expenses of experts made prior to the conclusion of
the trial of the action, the court shall set forth in specific detail, in
writing or on the record, the factors it considered and the reasons for its
decision.
(l) Hearings
or trials pertaining to temporary or permanent custody or visitation shall
proceed from day to day conclusion. With respect to other issues before the
court, to the extent feasible, trial should proceed from day to day to
conclusion.
(m) The court may, for
good cause, relieve the parties and counsel from the requirements of 22 NYCRR §
202.34 regarding pre-marking of
exhibits and 22 NYCRR §
202.20 -h. regarding pre-trial
memoranda and Exhibit Books.
(n)
Upon request of a party, the court may permit direct testimony of that party's
own witness in a non-jury trial or evidentiary hearing shall be submitted in
affidavit form, provided, however, that the opposing party shall have the right
to object to statements in the direct testimony affidavit, and the court shall
rule on such objections, just as if the statements had been made orally in open
court. Where an objection to a portion of a direct testimony affidavit is
sustained, the court may direct that such portion be stricken. The submission
of direct testimony in affidavit form shall not affect any right to conduct
cross examination or re-direct examination of the witness. Notwithstanding the
foregoing, in an action for custody, visitation, contempt, order of protection
or exclusive occupancy, however, except as provided in NYCRR §
202.18, a party or a party's own
witness may not testify on direct examination by affidavit.
(o) Omission or Redaction of Confidential
Personal Information from Matrimonial Decisions.
