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Individual Practices of Judge Melvin L. Schweitzer

New York State Court of Claims, 26 Broadway, 10th Floor, New York, NY 10004

Communications with Chambers | Appearance by Counsel | Preliminary Conference | Motions | Pre-Trial Procedures |

These practices are intended to facilitate the orderly and efficient administration of claims before this Court. As such, this Court expects to conduct periodic reviews and may make revisions based on actual experience with their implementation.

In addition, one or more of these practices may be modified sua sponte, in this Court's discretion, where a variation is deemed appropriate to the nature and relative complexity of the specific claim before the Court. Any such variations will be addressed at the Preliminary Conference (paragraph 3 hereof), the Trial Preparation Conference (paragraph 5 hereof), or at any of the additional conferences, e.g., compliance conferences, that may be held in the course of the litigation.

Unless otherwise ordered by Judge Schweitzer, matters before this Court shall be conducted in accordance with the following:

1. Communications with Chambers

A. Letters
Except for routine scheduling and calendar matters, and situations requiring immediate attention, communications with Chambers shall be by letter, sent by regular or express mail, as necessary, addressed to: Judge Melvin L. Schweitzer, 26 Broadway, New York, NY 10004, or delivered by hand to the Court of Claims receptionist on the 10th Floor at 26 Broadway, in an envelope addressed to Chambers. Copies of the letter shall be simultaneously delivered to all counsel in such a manner that opposing counsel will receive it before, or contemporaneously with, the submission to Chambers. Copies of correspondence between counsel shall not be sent to Chambers.

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B. Telephone Calls
For routine scheduling and calendar matters, and situations requiring immediate attention, call 212-361-8170 between 9:00 A.M. and 5:00 P.M.

C. Faxes
Faxes to Chambers are permitted so long as they are followed by a hard copy sent to Chambers, with copies simultaneously delivered to all counsel in such a manner that opposing counsel will receive it before, or contemporaneously with, the submission to Chambers.

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D. Requests for Adjournments or Extensions of Time
All requests for adjournments of scheduled Court appearances or of the return date of a motion, or for an extension of time shall be made only after consultation with opposing counsel. The request to Chambers must state (1) the original date, (2) the number of previous requests for adjournment or extension, (3) whether the adversary consents, and, if not, the reasons given by the adversary for refusing to consent, and (4) a proposed new date on which the parties have agreed. See, Disciplinary Rules of the Code of Professional Responsibility, Appendix A, Part III (22 NYCRR Part 1200). A request for an adjournment or an extension of time may be made by letter or telephone call to Chambers. Unless and until notified by Chambers that the requested adjournment or extension of time has been granted, the parties shall adhere to the original schedule.

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E. Settlements and Discontinuances
Pursuant to the provisions of section 20-a of the Court of Claims Act, settlements are by written stipulation approved by the Court and filed with the Chief Clerk at New York State Court of Claims, P.O. Box 7344 Capitol Station, Albany, NY 12224. In the case of a claim brought by an administrator of an estate, or the representative of an infant or incompetent, counsel must submit appropriate documentation as required by the Court. Information that describes the level of substantive detail this Court requires in this regard may be obtained from Chambers upon written request.

Counsel are advised that the Court requires compliance with the provisions of CPLR 3217 governing discontinuance of a claim. In particular, a Court order will be necessary to discontinue a claim brought on behalf of an infant or incompetent or by an administrator of an estate. In the case of an infant or incompetent, counsel must submit an affirmation of counsel and an affidavit of the guardian explaining the reasons why the claim is being discontinued. Information that describes the level of substantive detail this Court requires in this regard may be obtained from Chambers upon written request.

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2. Appearance by Counsel

Counsel appearing at a conference with the Court must be fully familiar with the case; authorized to explore settlement; and able to enter into agreements pertaining to substantive and procedural issues in the case.

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3. Preliminary Conference

A. Counsel will be notified by Chambers of the date set for the Preliminary Conference provided for by Section 206.10 of the Uniform Rules for the Court of Claims. Generally, this will be on the second Tuesday of a month, a discovery conference day.

B. Prior to a Preliminary Conference, counsel for all parties shall confer regarding all discovery and other issues pertaining to matters of case management and shall make a good faith effort to reach agreement on these matters in advance of the conference. Counsel shall come to the Preliminary Conference fully prepared to report on these consultations and the agreements, if any, that have been reached.

C. If discovery demands have been served prior to the date set for the Preliminary Conference, counsel are encouraged to comply therewith.

D. Counsel appearing at the Preliminary Conference must be fully prepared to discuss any jurisdictional issues raised by the pleadings.

E. The Preliminary Conference will result in the issuance by the Court of a Scheduling Order that will include a schedule for the completion of discovery, a date for filing the note of issue, a date for disclosure of experts, and a date for summary judgment motions.

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4. Motions

A. Motion Days; Filings

  1. Motion practice in the Court of Claims is governed by sections 206.8 and 206.9 of the Uniform Rules for the Court of Claims. Motions before this Court are returnable on the second Wednesday of each month. No oral argument on a motion is required or permitted, except where ordered by the Court. If counsel wish to have oral argument, that request should be prominently typed at the top of the Notice of Motion or Cross-Motion, or the Affidavit in Opposition. In the event this Court grants the request, counsel will be contacted with a date and time for oral argument. Unless counsel are so contacted, counsel are to consider the request denied.
  2. Section 206.9(b) of the Uniform Rules for the Court of Claims requires that an original and two copies of motion papers be filed with the Chief Clerk in Albany. Section 206.5-a permits for filing by facsimile transmission. Courtesy copies of motion papers should not be sent to Chambers.

B. Motions Pertaining to Discovery Disputes

Pursuant to the provisions of section 206.8(b) of the Uniform Rules for the Court of Claims, a motion relating to discovery may not be made without first conferring with the Court. Parties who wish to make a discovery motion first must submit a written request to the Court explaining the nature of the dispute and the relief sought. Copies of the request shall simultaneously be delivered to all counsel in such manner that opposing counsel will receive it before or contemporaneously with the submission to Chambers. A conference with the Court or the Judge's Clerk shall be held in an effort to resolve the dispute before such a motion may be made.

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C. Summary Judgment Motions; Statements of Material Facts

  1. Any party, except a pro se Claimant, filing a motion for summary judgment, or partial summary judgment ("movant") shall submit with that motion a separate, concise statement in numbered paragraphs of the material facts as to which the moving party contends there is no genuine issue to be tried. The statement must contain only one factual assertion in each numbered paragraph. Each factual assertion must be followed by a citation to the portion(s) of the evidentiary record relied upon (for example, "Ms. Jones visited Los Angeles, California on August 3, 2003. Smith Affidavit at ¶ 6; Stone Deposition at page 43").
  2. The party opposing the motion, except a pro se Claimant ("opponent"), must accompany its opposition papers with a response to the movant's statement. The response must contain numbered paragraphs tracking those in the movant's statement, and must address all allegations of the movant's statement, detailing in each paragraph specifically what is admitted, what is disputed, and the basis for any dispute, citing specifically the portion(s) of the evidentiary record relied upon (for example, "Ms. Jones was in New York City at all times during the month of August 2003. Jones Affidavit at ¶ 10; Frank Deposition at pages 62-65"). Lack of relevance is not a valid reason for refusing to agree that a fact is or is not "in dispute." Each assertion must be a factual assertion, not a legal assertion.
  3. Responsive statements by the opponent may go on to make additional factual allegations in additional paragraphs numbered consecutively to follow those of the movant (i.e. do not begin re-numbering at 1). If additional factual allegations are made by the opponent in these additional paragraphs, the movant then must file its own separate, concise statement in response to such additional factual allegations.

D. Post-Submission Papers

Counsel are reminded that the presentation of papers or letters to the court after submission of a motion is not permitted. Absent express permission in advance, such materials will be returned unread.

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5. Pre-Trial Procedures

A. Trial Preparation Conference (TPC)

  1. A Trial Preparation Conference (TPC) will be conducted by this Court's Law Clerk in Chambers approximately two weeks prior to trial. The requirements for the TPC may vary, in the Court's discretion, to suit the type and complexity of the case. Instructions for the conduct of the TPC will be sent to counsel when the TPC and trial are scheduled.
  2. Typically, a TPC will address any matters pertaining to the trial and any information that the Court may deem necessary or desirable for the orderly and efficient administration of the claim including, without limitation:

    Pre-marking for identification of exhibits (such exhibits will be returned to the party proffering them until they are presented at trial);

    Pre-marking for identification of all excerpts from deposition testimony that each party intends to offer on their case in chief;

    Identifying witnesses that each party intends to call on its case in chief, the order in which they will testify and the estimated length of their testimony;

    Addressing any evidentiary issues likely to arise at trial;

    Discussing the need for pre-trial briefs on any issue;

    Arranging for any special requirements, such as an interpreter, audio-visual device, special accessibility, etc.
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B. Judicial Subpoenas

Judicial Subpoenas requiring the Court's signature should be submitted to Chambers prior to the date of the TPC so that, if possible, they may be returned signed at the TPC.

C. Expert Disclosure

  1. A party who has the burden of proof on a claim, cause of action, or defense shall serve its response to an expert demand pursuant to CPLR 3101(d) on the date ordered by the Court, but in no event less than 30 days before trial.
  2. Any amended or supplemental expert disclosure shall be allowed only with leave of the Court on good cause shown.
  3. Parties are expected to provide meaningful compliance with the requirements of CPLR 3101(d) pertaining to the subject matter of expert testimony, the substance of the facts and opinions on which the expert is expected to testify (including the basis and reasons therefore and the information the expert considered in forming the opinions) and the qualifications of the expert.
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D. Exploration of Settlement

The Court encourages exploration of settlement at any stage of the litigation, including the pre-trial phase and will arrange for a facilitator for this purpose at the parties' request.

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