Use this “At A Glance Guide” to learn the statewide rules of civil procedure applicable to bringing a motion for discovery sanctions in New York Supreme Court. For more detailed information, including local rules, please see the New York Supreme Court SmartRules Guides: Motion for Discovery Sanctions, Opposition to Motion for Discovery Sanctions, and Reply in Support of Motion for Discovery Sanctions.

 Deadline

There is no provision of the CPLR, Uniform Rules or Commercial Division Rules restricting the time to bring a motion to compel or motion for discovery sanctions.  A restriction may be embodied in a scheduling order of the Court, such as one resulting from a Preliminary Conference.

Motion for Discovery Sanctions Rules

If a party fails to obey an order for disclosure of willfully fails to disclose information the court finds ought to have been disclosed, the court may make such orders as it deems just. CPLR 3126. The options available to the court include, but are not limited to the following.

(1) “Issue Sanctions.” The court may order that the issues to which the withheld information is relevant are determined in favor of the party from whom discovery was withheld. CPLR 3126(1).

(2) “Evidence Sanctions.” The court may prohibit the party who withheld discovery from supporting or opposing designated claims or defenses, introducing designated evidence or witnesses. CPLR 3126(2).

(3) “Terminating Sanctions.” The court may strike designated pleadings or “parts thereof,” stay proceedings until the discovery order(s) are obeyed, dismiss the action or any part, or render judgment by default against the party withholding discovery. CPLR 3126(3).

There shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by: (1) a party, or the officer, director, member, agent or employee of a party; (2) a person who possessed a cause of action or defense asserted in the action; (3) a person about to depart from the state, or without the state, or residing at a greater distance from the place of trial than one hundred miles, or so sick or infirm as to afford reasonable grounds of belief that he or she will not be able to attend the trial, or a person authorized to practice medicine, dentistry or podiatry who has provided medical, dental or podiatric care or diagnosis to the party demanding disclosure, or who has been retained by such party as an expert witness; and (4) any other person, upon notice stating the circumstances or reasons such disclosure is sought or required. CPLR 3101(a).

Upon objection by a person entitled to assert the privilege, privileged matter shall not be obtainable. CPLR 3101(b).

The work product of an attorney shall not be obtainable. CPLR 3101(c).

A party may obtain discovery of the existence and contents of any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment. Information concerning the insurance agreement is not by reason of disclosure admissible in evidence at trial. For purpose of this subdivision, an application for insurance shall not be treated as part of an insurance agreement. CPLR 3101(f).

Except as is otherwise provided by law, in addition to any other matter which may be subject to disclosure, there shall be full disclosure of any written report of an accident prepared in the regular course of business operations or practices of any person, firm, corporation, association or other public or private entity, unless prepared by a police or peace officer for a criminal investigation or prosecution and disclosure would interfere with a criminal investigation or prosecution. CPLR 3101(g).

In addition to any other matter which may be subject to disclosure, there shall be full disclosure of any films, photographs, video tapes or audio tapes, including transcripts or memoranda thereof, involving a person referred to in Civil Practice Law and Rules subdivision (a)(1). There shall be disclosure of all portions of such material, including out-takes, rather than only those portions a party intends to use. The provisions of this subdivision 3101(i) shall not apply to materials compiled for law enforcement purposes which are exempt from disclosure under section eighty-seven of the public officers law. CPLR 3101(i).

When a party is in default for failure to appear, that party is not entitled to notice or service of any copy required under Civil Practice Law and Rules Article 31. CPLR 3105.

Counsel must confer in good faith to resolve the issues raised by the motion before brining any “motion related to disclosure.” Uniform R. 202.07(a).

In all Commercial Division cases, parties must strictly comply with discovery obligations by the dates set forth in all case scheduling orders. Such deadlines, however, may be modified upon the consent of all parties, provided that all discovery shall be completed by the discovery cutoff date set forth in the preliminary conference order. Commercial Div. R. 13.

Applications for extension of a discovery deadline shall be made as soon as practicable and prior to the expiration of such deadline. Commercial Div. R. 13.

Non-compliance with such an order may result in the imposition of an appropriate sanction against that party pursuant to Section 3126 of the CPLR. Commercial Div. R. 13.

In the Commercial Division, counsel must consult with one another in a good faith effort to resolve all disputes about disclosure. If counsel are unable to resolve a disclosure dispute, the aggrieved party shall contact the court to arrange a conference as soon as practicable to avoid exceeding the discovery cutoff date. Counsel should request a conference by telephone if that would be more convenient and efficient than an appearance in court. Commercial Div. R. 14.

In the case of disclosure-related motions, an affirmation of good faith effort to resolve the issues raised by the motion must be annexed to the Notice and must indicate the time, place and nature of the discussions, the issues discussed and any resolutions. If no consultation with opposing counsel was held, the affirmation must indicate why. Uniform R. 202.07(a).

The authorities cited in this At A Glance Guide are current as of the publication date. For authorities updated in real time, please see the SmartRules Guide for the litigation document you are drafting.

Use this “At A Glance Guide” to learn the statewide rules of civil procedure applicable to bringing a motion for protective order in New York Supreme Court. For more detailed information, including local rules, please see the New York Supreme Court SmartRules Guides: Motion for Protective Order, Opposition to Motion for Protective Order and Reply in Support of Motion for Protective Order.

No Deadline

The court will entertain a motion for protective order denying, conditioning, limiting or regulating the use of any disclosure device, at any time during the case. CPLR 3103(a).

Motion for Protective Order Rules

The court may, on motion or its own initiative, grant a protective order denying, conditioning, limiting or regulating the use of any disclosure device in order to prevent unreasonable annoyance, expense, embarrassment, disadvantage or other prejudice to any person or to the court. CPLR 3103(a).

Counsel must confer in good faith to resolve the issues raised by the motion before brining any “motion related to disclosure.” Uniform R. 202.07(a).

There shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by: (1) a party, or the officer, director, member, agent or employee of a party; (2) a person who possessed a cause of action or defense asserted in the action; (3) a person about to depart from the state, or without the state, or residing at a greater distance from the place of trial than one hundred miles, or so sick or infirm as to afford reasonable grounds of belief that he or she will not be able to attend the trial, or a person authorized to practice medicine, dentistry or podiatry who has provided medical, dental or podiatric care or diagnosis to the party demanding disclosure, or who has been retained by such party as an expert witness; and (4) any other person, upon notice stating the circumstances or reasons such disclosure is sought or required. CPLR 3101(a).

Upon objection by a person entitled to assert the privilege, privileged matter shall not be obtainable. CPLR 3101(b).

The work product of an attorney shall not be obtainable. CPLR 3101(c).

A party may obtain discovery of the existence and contents of any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment. Information concerning the insurance agreement is not by reason of disclosure admissible in evidence at trial. For purpose of this subdivision, an application for insurance shall not be treated as part of an insurance agreement. CPLR 3101(f).

Except as is otherwise provided by law, in addition to any other matter which may be subject to disclosure, there shall be full disclosure of any written report of an accident prepared in the regular course of business operations or practices of any person, firm, corporation, association or other public or private entity, unless prepared by a police or peace officer for a criminal investigation or prosecution and disclosure would interfere with a criminal investigation or prosecution. CPLR 3101(g).

In addition to any other matter which may be subject to disclosure, there shall be full disclosure of any films, photographs, video tapes or audio tapes, including transcripts or memoranda thereof, involving a person referred to in Civil Practice Law and Rules subdivision (a)(1). There shall be disclosure of all portions of such material, including out-takes, rather than only those portions a party intends to use. The provisions of this subdivision 3101(i) shall not apply to materials compiled for law enforcement purposes which are exempt from disclosure under section eighty-seven of the public officers law. CPLR 3101(i).

When a party is in default for failure to appear, that party is not entitled to notice or service of any copy required under Civil Practice Law and Rules Article 31. CPLR 3105.

Once a motion for protective order has been served, the disclosure it relates to is suspended pending the court’s decision on the motion. CPLR 3103(b).

The court may include in its ruling on the Motion for Protective Order an order suppressing any information improperly or irregularly obtained and causing prejudice to any party. CPLR 3103(c).

The authorities cited in this At A Glance Guide are current as of the publication date. For authorities updated in real time, please see the SmartRules Guide for the litigation document you are drafting.

Use this “At A Glance Guide” to learn the statewide rules of civil procedure applicable to bringing a motion for sanctions (non-discovery) in New York Supreme Court. For more detailed information, including local rules, see the New York Supreme Court SmartRules Guides: Motion for Sanctions (Non-Discovery), Opposition to Motion for Sanctions (Non-Discovery) and Reply in Support of Motion for Sanctions.

Motion for Sanctions Rules–Uniform Rule 130-1.1

Unless otherwise provided by law for a specific type of claim, the court has full discretion to award reasonably incurred expenses and attorneys fees, and/or financial sanctions, against any party or attorney in any civil action or proceeding for engaging in frivolous conduct. Uniform R. 130-1.1(a).  (These provisions do not apply to frivolous claims in personal injury, wrongful death or property damage actions covered by CPLR 8303-a.)

Conduct is deemed to be frivolous if it is completely without merit in law and cannot be supported by a logical extension, modification or reversal of existing law. Uniform R. 130-1.1(c)(1). Frivolous conduct also includes action taken primarily to delay the litigation or harass or injure another, or the assertion of any material or factual statement known to be false. Uniform R. 130-1.1(c)(2) and (3).

A party or attorney’s signature on any pleading or paper served on another party or filed or submitted to the court constitutes a certification by the signatory that (1) the presentation of the paper or any contentions contained within it are not frivolous, to the best of the signatory’s knowledge, information and belief, formed after a reasonable inquiry and (2) if the paper is an initiating pleading, (i) the matter was not obtained through illegal conduct or, if it was, the attorney and other persons responsible for the illegal conduct are not participating in the matter or sharing in any fee earned therefrom and (ii) the matter was not obtained in violation of 22 NYCRR 1200.41-a. Uniform R. 130-1.1-a(b) (amended eff 2/1/07).

The court may award the amount it deems appropriate but in no event will award more than $10,000 for a single event or occurrence of frivolous conduct. Uniform R. 130-1.2.

The court may award expenses and/or attorneys fees payable to the opposing party, and/or financial sanctions payable to the state fund for client protection, against any attorney who without good cause fails to appear for a court proceeding. Uniform R. 130-2.1(a).

The court will take all of the surrounding circumstances, including but not limited to the adequacy of notice to the attorney, the attorney’s explanation, and any efforts to notify the court or send substitute counsel into account in determining whether the failure to appear is sanctionable. Uniform R. 130-2.1(b).

Financial sanctions under this provision are capped at $2500.00 per occurrence. Uniform R. 130-2.2.

Motion for Sanctions Rules–CPLR 8303-a

The Court will award costs to the prevailing party if it finds that a party made a frivolous claim, cross-claim or counterclaim alleging:

(1) a personal injury;

(2) injury to property; or

(3) wrongful death;

or if it finds that the person who committed a crime made a frivolous claim against the victim of the crime. CPLR 8303-a(a).

In order to find an action frivolous the court must determine that:

(1) it was either commenced in bad faith to delay, harass or injure another party, or

(2) that the party or attorney deliberately and in bad faith continued the claim past the point when it could be believed to have reasonable basis. CPLR 8303-a(c).

The costs should be assessed against the individual or entity the court finds responsible under the circumstances for the frivolous action. Costs might be assessed against the party, the attorney, or both. CPLR 8303-a(b).

The cost award is in addition to any other judgment awarded the successful party. CPLR 8303-a(b).

Costs awarded are capped at ten thousand dollars. CPLR 8303-a(a).

The authorities cited in this At A Glance Guide are current as of the publication date. For authorities updated in real time, please see the SmartRules Guide for the litigation document you are drafting.

 Use this At A Glance Guide to learn the rules of civil procedure (New York’s Civil Practice Law and Rules “CPLR”) applicable to cross-claims in New York Supreme Court.  For a more detailed treatment, including local rules, please see the New York Supreme Court SmartRules Guide:  Cross-claim. 

 Timing

Cross-claims must be included in the defendant’s answer. CPLR 3011. Accordingly, the cross-claim should, under normal circumstances, be asserted within the same time allowed for the answer, typically twenty (20) days. See New York SmartRules^TM procedural guide: ANSWER for more about answer timing requirements.

Cross-claim Rules

In New York, unlike the federal courts, cross-claims may be asserted by defendants against co-defendants (and third parties) for any cause of action. CPLR 3019(b). The cause of action need not be related to the underlying complaint. The cross-claim may include a claim that the cross-defendant is liable to the cross-claimant for all or any part of the claim against cross-claimant in the underlying complaint. CPLR 3019(b).

The CPLR requires that a cross-claim include a demand for an answer. CPLR 3011.

A cross-claim may join as many claims as the defendant/cross-claimant has against an adverse party. CPLR 601. The court may, for reasons of relevancy or to avoid undue burden, sever claims or order separate trials. CPLR 603.

A cross-claim must include a demand for the relief requested. CPLR 3017(a); CPLR 3019.

Pleadings in actions for personal injury or wrongful death are subject to certain additional requirements. CPLR 3017(c).

In cases where monetary relief is sought, a demand for a specific amount is common. Case law suggests that this is not essential as a matter of pleading. In medical malpractice actions and actions against municipal corporations, case law suggests that a specific dollar amount should not be included in the demand for money damages.

The authorities cited in this At A Glance Guide are current as of the publication date. For authorities updated in real time, please see the SmartRules Guide for the litigation document you are drafting.

Use this “List of Must Knows” to learn the statewide rules of civil procedure, New York’s Civil Practice Law and Rules (“CPLR”), you need to know to propound interrogatories in the New York Supreme Court.  For more detailed treatment of interrogatories in the New York Supreme Court, including local rules, please see the New York Supreme Court SmartRules Guides Interrogatories, and Response to Interrogatories.   Also, regarding formatting requirements please see the New York Supreme Court Guide Generally Applicable Rules and Formatting Requirements.   

Must Know List Re Interrogatories–CPLR

Any party may serve interrogatories on any other party at any time after commencement of the action. CPLR 3130; CPLR 3132.

Unless the Court directs otherwise, no party may serve interrogatories on a defendant until the time has expired for that defendant to serve a responsive pleading. CPLR 3132.

Within twenty (20) days after being served with interrogatories, the party served must serve on each other party a copy of the answer or objection to each interrogatory. CPLR 3133(a). No additional time is added to this period if service was made by personal delivery, facsimile or electronic transmission. CPLR 2103(b)(1), (5) and (7).  If the interrogatories were served by overnight delivery add one (1) day to the response period. CPLR 2103(b)(6).  If the interrogatories were served by mail, add five (5) days to the response period. CPLR 2103(b)(2).  The day interrogatories are served is not included when calculating the time to respond. Response time starts running the day after service. Gen. Const. L. 20.  Saturdays, Sundays, and legal holidays are included in the count if they do not fall on the last day of the period. If the last day of the period is a Saturday, Sunday, or legal holiday, the response period runs until the end of the next non-holiday business day. Gen. Const. L. 25. “Legal holidays” include those specified in Gen. Constr. L. 24, plus any others designated by the federal or state government. Gen. Const. L. 24.  The response deadline may be altered by court order or stipulation. CPLR 2004; CPLR 3102(b), respectively.

Interrogatories may relate to any matter or information material or necessary to the prosecution or defense of the action and not subject to privilege. CPLR 3131; CPLR 3101. Interrogatories may require (a) an opportunity to examine and copy papers, documents or photographs that are relevant to the answers to the interrogatories, or (b) copies of such papers, documents or photographs. CPLR 3131.

The NewYork Rules do not specify a numerical limit for Interrogatories.  Additionally, the New York rules do not specify requirements for formatting interrogatories, but the general formatting rules for papers apply.

Except in matrimonial actions, no party can serve interrogatories on a party and demand a bill of particulars from the same party. CPLR 3130(1).

In actions based solely on negligence and claiming personal injury, property damage or wrongful death, no party may, without leave of Court, serve written interrogatories on a party and take the oral deposition of the same party. CPLR 3130(1).

Use this Cheat Sheet to learn all the statewide rules of civil procedure applicable to a motion to reargue in New York Supreme Court.  For more detailed coverage of motions to reargue, including local rules, please see the SmartRules New York Supreme Court Motion to Reargue Guides, the SmartRules New York Supreme Court Opposition to Motion to Reargue Guides, the SmartRules NewYork Supreme Court Replies in Support of Motion to Reargue Guides, the New York Supreme Court General Motions Guides, and New York Codes, Court and Forms coverage.   

Motion to Reargue Rules

A motion to reargue a point decided by the trial court must be made within thirty (30) days of service of a copy of the order and written notice of its entry. This thirty (30) day requirement does not apply to motions directed at decisions of the Court of Appeals.  CPLR 2221(d)(3).

Although the term “motion for reconsideration” is sometimes used by New York practitioners, the CPLR does not officially sanction such motions. Motions seeking change in a prior court decision based on previously overlooked, misapprehended or not offered facts or evidence are designated as motions to renew or reargue. CPLR 2221.

A motion to reargue a point decided by the court may only be made based on matters of fact or law which were presented by the parties but allegedly overlooked or misapprehended by the court in its decision.  CPLR 2221(d)(2).

A motion to renew may be made to raise facts not offered in relation to the original motion that would change the determination or where there has been a change in the law that effects the prior determination. CPLR 2221(e)(2). When a motion to renew is made based on facts not previously offered, reasonable justification for the failure to offer the facts in relation to the original motion must be shown. CPLR 2221(e)(3).

Motions to renew or reargue, or combined motions, must specifically identify the type of relief sought, whether it is renewal, reargument, or both. CPLR 2221(d)(1); CPLR 2221(e)(1); CPLR 2221(f).

A motion pursuant to CPLR 2221 must be made to the same judge who signed the order that is at issue, unless that judge is unable to hear the motion. CPLR 2221(a).

A motion pursuant to CPLR 2221 can be made to other than the original judge if the order was made upon a default, in which case the motion may be made, on notice, to any judge of the court; and if the order was made without notice, (for example on an ex parte motion), the motion may be made, without notice, to the judge who signed it, or, on notice, to any other judge of the court. CPLR 2221(a).

Legislation currently referred to the Codes Committee of the New York state legislature would amend New York civil procedure regarding subpoenas, specifically Civil Practice Law and Rules (“CPLR”) Section 3101 (a) (4).  

The justification for the proposed amendment is set forth as follows:  Until 1984, CPLR 3101(a) (4) required disclosure by “any person where the court on motion determines that there are adequate special circumstances.” Courts interpreted that requirement very liberally. In Kenford Co. v. County of Erie, 41 AD.2d 586, 340 N.Y.S.2d 300 (4th Dep’t 1973), a seminal case repeatedly cited with approval by the other Departments, the Court said: “A mere showing by the lawyer that he needs such [nonparty] witness’s pretrial deposition in order to prepare fully for the trial should suffice as a ’special circumstance’.”

By chapter 294 of the Laws of 1984, the statute was amended to its current form, eliminating both the need for a motion and any reference to “special circumstances.” The amendment was made effective September 1, 1984. In support of the amendment, its sponsor stated that, “The proposed amendment would…allow for the discovery of any person who possesses material and necessary evidence. All of the necessary protections to avoid abuses of non-party witnesses presently exist under CPLR 3103 and 3104.” 1984 Legislative Annual, pp. 122-123.

In two notable cases soon thereafter, the First Department, seemingly faced with the question of whether the old or the new statute applied to appeals pending in existing actions, found it unnecessary to decide the point, since even under the old statute, the liberal interpretation in Kenford would permit nonparty disclosure under the circumstances, and there was certainly no suggestion that the Legislature intended by the new statute “to depart from the liberal interpretation heretofore accorded to the ’special circumstances’ standard in the former legislation.” Slabakis v. Drizin, 107 A.D.2d 45, 48, 485 N.Y.S.2d 270 (l”1
Dep’t 1985); see New England Mut. Life Ins. Co. v. Kelly, 113 AD.2d 285, 496 N.Y.S.2d 8 (151 Dep’t 1985).

In Dioguardi v. St. John’s Riverside Hosp., 144 AD.2d 333,334,533 N.Y.S.2d 915 (2nd Dep’t 1988), the Court, affirming denial of a nonparty deposition, said: “It is proper to direct disclosure against a nonparty witness only in the presence of adequate special circumstances [citing a pre-1984 decision]. This requirement survived the1984 amendment to CPLR 3101 (a) (4) (L 1984, ch 294; see, New England Mut. Life Ins. Co. (supra); Slabakis [supra})."

We did not intend for the survival of "special circumstances" after the amendment of 1984. That holding in Dioguardi represents a misreading of the holdings in New England Mut. and Slabakis, and it is directly contrary to the legislative intent of the amendment as reflected in its sponsor's memorandum. While panels of the First and Fourth Departments of the Appellate Division have openly rejected Dioguardi (Schroder v. Consolidated Edison Co. ofN.Y., Inc., 249 AD.2d 69,670 N.Y.S.2d 856 [151 Dep't 1998]; Catalano v. Moreland, 299 AD.2d 881, 750 N.Y.S.2d 209 [4th Dep't 2002]), the Second Department has repeatedly followed its approach (see, e.g., Moran v. McCarthy, Safrath & Carbone, P.c., _ AD.3d_, 2006 N. Y. App. Div. LEXIS 9715; 2006 N.Y. Slip Op. 05926 [2nd Dep't 2006]; Tannenbaum v. Tannenbaum, 8 AD.3d 360,777 N.Y.S.2d 769 [2nd Dep't 2004]; Lanzello v. Lakritz, 287 AD.2d 601, 731 N.Y.S.2d 763 [2nd Dep't 2001];
Bostrom v. William Penn Life Ins. Co., 285 AD.2d 482,727 N.Y.S.2d 160 [2nd Dep't 2001]).

The conflict among departments of the Appellate Division and the need to clarify the intent of the 1984 amendment warrants this bill. Of course, non-party witnesses, like all of those from whom discovery may be sought, are protected from abusive discovery under CPLR 3103 and 3 I 04. There is no intent by this amendment to change statutory or case law concerning discovery of physicians or experts.

For more information regarding subpoenas, please see the New York SmartRules Response to Motion to Quash Subpoena Guides for Bronx, Nassau, New York, Kings, Queens, Richmond and Suffolk Counties.