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Commentary:

AMENDMENTS TO UNIFORM RULES FOR PROCEDURE IN MATRIMONIAL ACTIONS, EFFECTIVE MARCH 1, 1997 - 22 NYCRR 202.16

By Order dated January 28, 1997 the Chief Administrative Judge amended, effective March 1, 1997, section 202.16 of the Uniform Rules for the Supreme and County Court, relating to procedure in matrimonial actions. Several sections of section 202.16 have been amended to specify that the papers referred to in the rule be filed with the court. The prior version of the rule required the net worth statement, statement of proposed disposition and note of issue to be "filed", which meant that, in accordance with CPLR 2102, they had to be filed in the office of the clerk of the court in which the action is triable. That would be the office of the county clerk, in his capacity as clerk of the Supreme and County Courts. See CPLR 8020(a) The amendment specifies that the papers have to be filed with the court, meaning the judge to whom he matter is assigned. See CPLR 105(e) and (g).

22 NYCRR 202.16(b) [Form Statements of Net Worth] was amended to require that sworn statements of net worth be filed "with the court". It now provides:

Sworn statements of net worth, except as provided in subdivision (k) hereof, 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.

 

22 NYCRR 202.16(c) [Retainer Agreements and Closing Statements] was amended to add the words "with the court" to subdivision (c)(1) and to delete subdivision (c)(3) which required each attorney to file a closing statement with the clerk of the court. It now provides:

(1) A signed copy of the attorneys 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 attorneys retainer agreement shall be filed with the court within 10 days of its execution.

 

22 NYCRR 202.16(d) [Request for Judicial Intervention] was amended to require that the request for judicial intervention be filed "with the court".

22 NYCRR 202.6(a) requires any party who files a statement of net worth pursuant to DRL § 236, notice of motion, order to show cause, application for an ex parte order, notice of petition, note of issue, notice of malpractice action, and request for a preliminary conference pursuant to 22 NYCRR 202.12(a), in an action to which a judge has not been assigned, to attach to the papers to be filed a written request for judicial intervention, in duplicate. The court may not accept the paper without the request for judicial intervention and payment of the filing fee for it required by CPLR 8020(a).

Another amendment to 22 NYCRR 202.16(d) added a sentence requiring the court, notwithstanding the provisions of 22 NYCRR 202.6(a), to accept a request for judicial intervention that is not accompanied by other papers to be filed in court. It now provides:

(d) 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 and 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 and 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.

 

22 NYCRR 202.16(f)(1) [Preliminary conference] which required the court to order the preliminary conference to be held within 30 days after the action has been assigned was amended to require that the court order the preliminary conference to be held within 45 days after the action has been assigned. In addition, the parties must provide the court and opposing counsel with a copy of the sworn statement of net worth at the preliminary conference. The judge is now required to address the parties personally at some time during the conference. It now provides:

(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, including statements of net worth that, if not yet filed, shall be filed with the court at such time before the conference as the court shall require, but the court shall require the statement of net worth to be filed no later than ten days prior to the preliminary conference. In addition, the parties must provide the court and opposing counsel with a copy of the net worth statement at the time of the conference. Both parties personally must be present in court at the time of the conference, and the judge shall address the parties at some time during the conference.

22 NYCRR 202.16(f)(2) which required that all disclosure proceedings be completed within 6 months from the assignment of the action to the judge was amended to require that the timetable for the completion of disclosure established at the preliminary conference require that all such procedures be completed within 6 months from the commencement of the conference. It now provides:

(f)(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; (iii) simplification and limitation of issues, (iv) the establishment of a timetable for the completion of all disclosure proceedings, provided that all such procedures must be completed 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) and any other matters which the court shall deem appropriate.

22 NYCRR 202.16 (f) (3) was amended to extend from 20 days to within 30 days of the conference, the time of the parties to file with the court a list of suitable law guardians for selection by the court. The time of the parties to file with the court a list of neutral expert witnesses to assist the court has been extended from 20 days from the conference to within 30 days of the conference. That part of the rule which gave the court the discretion to schedule a compliance conference, at which the parties must be present in court has been deleted. The court is now required to schedule a compliance conference unless it dispenses with the conference based upon a stipulation of compliance filed by the parties. Unless the court excuses their presence, the parties must be present in court at the time of the compliance conference and the judge must address them at some time during the conference. The rule now provides:

(f) (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 a law guardian for the infant children, or may direct the parties to file with the court, within 30 days of the conference, a list of suitable law guardians 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. Unless the court excuses their presence, the parties personally must be present in court at the time of the compliance conference. It the parties are present in court, the judge personally shall address them at some time during the conference.

22 NYCRR 202.16(g)[Expert Witnesses] has been amended to require that expert witness reports be filed with the court rather than submitted and to provide that except for good cause shown the reports exchanged between the parties shall be the only reports admissible at trial. The rule now provides:

(g) Expert witnesses. 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 files 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.

 

22 NYCRR 202.16(h)(3) [Statement of Proposed Disposition] had provided that the statement of proposed disposition be filed with the note of issue. It has been amended to require that the statement of proposed disposition and note of issue be filed with the court. It now provides;

(h) Statement of Proposed Disposition.

(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 with paragraph (1) within 20 days of such service.