NYCAL Justice Peter Moulton Issues New CMO

On June 20, 2017, NYCAL Justice Peter Moulton issued a new case management order (New CMO) and an accompanying case management decision (the Decision). As the Decision states, the court’s New CMO follows from a 2014 decision from prior NYCAL Justice Heitler as to whether punitive damages should continue to be deferred in NYCAL.

After negotiations to craft a new CMO failed, Judge Moulton decided to issue the New CMO without consent of the parties. The Decision acknowledges that many of the new provisions “differ[] from” the rights afforded by New York’s Civil Practice Laws and Rules, but the Court nonetheless determined that consent was not necessary. See Decision, at pp. 16-18 (citing Matter of New York City Asbestos Litig., 2014 WL 10714009, at 6, and § 202.6(c)(2) of the New York City Rules for Trial Courts).

The Decision previews some of the major New CMO provisions, including, for example, limitations on joinder of cases for trial, introduction of punitive damages to NYCAL, use of hearsay documents at trial for Article 16 purposes, and discovery of bankruptcy trust documents.

As to limitations on joinder for trial, the court acknowledges that “there is some merit to defendants arguments” concerning the propriety of joint trials. Id, at 20. The Decision states that the New CMO limits joinder of trials to two, “or a maximum of three upon demonstrating certain criteria.” Id, at 20. Notably, the Decision and the New CMO provide that any plaintiff that seeks punitive damages cannot be joined with any other case. Finally, the Decision discusses a new CMO provision that permits trials to “be opened in other counties” in New York City to provide a “safety valve to ensure that NYCAL is able to process cases with sufficient speed.”

As for punitive damages, the Decision indicates that the New CMO “allow[s] for the assertion of punitive damages in NYCAL”. Id, at 21. The Decision states:

pursuant to the First Department’s direction, the Case Management Order signed on today’s date gives due process protections to defendants in the form of discovery and various pre-trial decision points that provide notice as to whether a plaintiff will be asserting punitive damages against a given defendant. Defendants have the right under New York law to move for summary judgment dismissing claims for punitive damages. Because cases where a plaintiff asserts punitive damages may not be joined with any other plaintiff’s case, joinder motions will provide final definitive notice concerning whether a plaintiff will be proceeding with a punitive damages claim.

Id, at 21-22 (internal citations omitted).

Next, the Decision analyzes whether to permit defendants to admit as evidence at trial certain documents (i.e., standard interrogatories, deposition transcripts from prior cases) of non-parties for Article 16 purposes. Here, the court, on the one hand, allows for the use of non-party standard interrogatories at trial for Article 16 purposes. On the other hand, deposition transcripts from prior cases of non-parties will apparently not be admissible. Id.

Finally, the Decision discusses the New CMO’s deadlines and other requirements for plaintiffs to submit bankruptcy trust claims.

The New CMO does not become effective until July 20, 2017.

Read the Decision here.

Read the New CMO here.


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