On August 6, 2014, the Second Department issued a decision in Middleton v. Russell, 2014 NY Slip Op. 05631, reversing a trial court’s denial of a motion for failure to follow part rules.
In Middleton, the trial court denied the defendants’ “motion to vacate the note of issue and to compel certain disclosure on the ground that the defendants did not request a conference before making the motion in accordance with the court’s part rules.” The Second Department reversed the decision, explaining:
The Supreme Court has broad discretion in supervising disclosure and in resolving discovery disputes. However, the Appellate Division is vested with its own discretion and corresponding power to substitute its own discretion for that of the trial court.
Here, the Supreme Court improvidently exercised its discretion by denying the defendants’ motion to compel certain disclosure, on the ground that the defendants neglected to comply with its part rules requiring advance notice of the motion so that the court could determine whether the matter should be conferenced. While such rules are permissible for the purpose of assisting the court in its supervision of disclosure, the application of the subject rule to the instant matter so as to deny the defendants’ motion was improper in view of the strong indication that the defendants are entitled to additional disclosure and the demonstrated inability of the parties to reach an agreement regarding the requested disclosure.
(Internal quotations and citations omitted). The defendants got a second chance from the Second Department here, but it is hard to see what reason there could have been for not following the part rules regarding pre-motion conferences in the first instance. The Commercial Division justices who have part rules post them on the Commercial Division website. And, of course, we link to them from this blog.