As readers of this blog are well aware, we here at New York Commercial Division Practice take great pride in posting about proposed or amended rules of practice in the Commercial Division. Knowledge of the local rules is particularly relevant when filing documents. One recent local rule change that may catch our readers’ eyes is Nassau County Supreme Court’s new procedures for filing an order to show cause.
Litigants generally have two options when bringing a motion before a court in New York State: (i) a motion on notice; or (ii) a motion brought by order to show cause. An order to show cause is typically used for emergency applications or when a litigant is seeking some form of immediate relief, such as a stay or temporary restraining order. As part of an application for an order to show cause, a party’s attorney must submit an affirmation under 22 NYCRR § 202.7(f), which provides that the opposing party has been given notice of the date, place, and time that the application will be filed with the court in order to appear in response to the application. This is where things get interesting.
Section 1 of Nassau County Supreme Court’s new order to show cause rule provides:
If an Order to Show Cause seeking any injunctive relief, including a stay or TRO, is to be presented, it must comply with Uniform Rule §202.7(f). The movant shall first consult with Chambers as to a convenient date and time for counsel to appear (whether In Person or Virtually) with regard to the compliance with Uniform Rule §202.7(f) and written notice shall be given to Chambers as well.
Simply put, prior to sending the required 202.7(f) notice to the opposing party, the moving party must consult with the Court or a particular judge’s chambers regarding the date and time for the parties to appear. Failure to follow this local rule may result in the clerk rejecting the filing before a judge even sees it.
In the case of filing an emergency order to show cause, Section 2 provides that:
All attorneys and litigants filing an emergency Order to Show Cause shall notify the assigned Part (if the case was previously assigned) AND the Order to Show Cause Clerk at (516) 493-3119 (NasSupOSC@nycourts.gov) SIMULTANEOUSLY with the notice provided to opposing counsel. The movant shall copy the assigned Judge through their Remote Email and the Clerk on the 202.7 Notice to opposing counsel. The form of the relief requested should be noted in the 202 Notice. Chambers shall still be notified of the impending emergency filing and provide an affidavit as to why 202.7 Notice was not provided. If the matter is not yet assigned, it will be randomly assigned to a judge, who will be notified by the Clerk.
As such, Section 2 mandates that the moving party must not only consult with the Court and the Clerk’s office regarding its emergency filing, but must include both the Court and the Clerk on its 202.7 (f) notice to the opposing party. While this section of the new rule imposes an additional obligation upon litigants, it also provides the Court and Clerk’s office with sufficient notice of such emergency filings.
In the words of my colleague Matt Donovan, “[c]heck the rules, folks. Always check the rules.”
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