CLE: Recent CPLR Developments

The Commercial and Federal Litigation Section of the New York State Bar Association continued its morning live-program CLE sessions with a segment entitled “CPLR Up­date for Commercial Litigators,” featuring David Horowitz and Katryna Kristoferson of the Law Offices of David Paul Horowitz, PLLC, as well as Hon. Justice John R. Higgitt, Associate Justice of the Appellate Division, First Department.

Mr. Horowitz prefaced the rule-change discussion with an important announcement—the 60th anniversary of the CPLR! The CPLR was adopted by the New York Legislature in 1962 and went into effect on September 1, 1963.

CPLR 321(d)

The first rule change the presenters covered during the CLE session was CPLR 321, which was amended to include a new subdivision “(d),” and which became effective on De­cember 16, 2022. It provides:

d) Limited scope appearance. 1. An attor­ney may appear on behalf of a party in a civil action or proceeding for limited purposes. Whenever an attorney appears for limited purposes, a notice of limited scope appear­ance shall be filed in addition to any self-represented appearance that the party may have already filed with the court. The notice of limited scope appearance shall be signed by the attorney entering the limited scope appearance and shall define the purposes for which the attorney is appearing. Upon such filing, and unless otherwise directed by the court, the attorney shall be entitled to ap­pear for the defined purposes.

2.Unless otherwise directed by the court upon a finding of extraordinary circum­stances and for good cause shown, upon completion of the purposes for which the at­torney has filed a limited scope appearance, the attorney shall file a notice of comple­tion of limited scope appearance which shall constitute the attorney’s withdrawal from the action or proceeding.

This new subdivision allows parties attempting to repre­sent themselves pro se in civil actions in New York state court to seek limited-scope legal assistance and to encourage judges to permit attorneys to appear on behalf of the pro se parties for limited purposes.

After hearing numerous questions from the audience con­cerning the applicability of this new subdivision to various scenarios, Mr. Horowitz noted that although the amendment does not define in what capacity an attorney may make a limited appearance on behalf of a client or at what particular juncture during a litigation, he envisioned limited scope ap­pearances to be particularly suited for situations in which a participating litigant needed an attorney to appear on his or her behalf at a court conference (such as a residential mort­gage foreclosure conference). He also emphasized that it is crucial for the pro se client and the appearing attorney to de­fine the scope of the limited appearance in a retainer agree­ment in order to avoid some foreseeable issues down the road.

Justice Higgitt added that the amendment may be helpful for attorneys who are pinch-hitting for pro se clients regard­ing complex, nuanced motions, affording them the oppor­tunity to “come in cleanly and get out cleanly” without the rigmarole of having to move to be substituted in or relieved as counsel.

CPLR 2106

The panel then addressed the newest amendment to Rule 2106 of the CPLR. Effective January 1, 2024, CPLR 2106 allows a statement by “any person, wherever made, subscribed and affirmed by that person to be true under the penalties of perjury,” to be used in a New York action in lieu of, and with the same force and effect as, an affidavit.

The amendment provides that an affirmation should in­clude the following language:

I affirm this ___ day of ______, ____, un­der the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that the foregoing is true, and I understand that this document may be filed in an action or proceeding in a court of law.

(Signature)

The previous version of CPLR 2106 allowed only attor­neys, physicians, osteopaths, and dentists to submit unsworn affirmations in a New York civil case. The new change ex­pands the use of CPLR 2106 affirmations to anyone, aligning New York law with federal standards of allowing the use of unsworn declarations under penalty of perjury, and alleviat­ing the burden and formalities of notarization.

Commercial Division Rule 27

The panelists then turned to a new amendment to Rule 27 of the Rules of Practice for the Commercial Division (ef­fective August 31, 2023) concerning motions in limine. Mr. Horowitz noted that he believes motions in limine to be one of the most effective and underutilized tools available to liti­gators in terms of ascertaining what will be or will not be ad­missible at trial. Justice Higgitt agreed and added that mak­ing a motion in limine on evidentiary issues not only gives a litigant clarity or predictability on how a critical piece of evidence will or not will be used at trial, but allows a litigant to preserve that point for appeal.

Whereas the old rule provided no specific guidance about the subject matter to be included in motions in limine, or the timing of opposition papers, the amended rule now in­cludes a deadline for the service of opposition papers—i.e., no later than two days before the return date of the motion— and provides guidance on the types of broad issues that mo­tions in limine should address.

For example, motions in limine should address (1) the re­ceipt or exclusion of evidence, testimony, or arguments of a particular kind or concerning a particular subject matter; (2) challenges to the competence of a particular witness; or (3) challenges to the qualifications of experts or to the receipt of expert testimony on a particular subject matter. Lastly, the amended rule also requires that motions in limine not be used as substitutes for summary judgment motions.

Interstitial Period—First and Second Department Split

Mr. Horowitz then spoke about a recent Second Depart­ment decision of interest, HSBC Bank USA, N.A. v. Rubin, (2022 N.Y. Slip Op. 05682 [2d Dep’t 2022]), which dealt with the issue of whether a party is eligible for affirmative re­lief during the interstitial time between an order of dismissal and the entry of a judgment. In Rubin, the plaintiff-lender filed a motion for the appointment of a temporary receiver following dismissal of an action. The Supreme Court denied the plaintiff’s motion, finding that there was no pending ac­tion on which the court could entertain the motion. The Sec­ond Department reversed, holding that the order of dismissal did not divest the court of the authority to reach the merits of the plaintiff’s motion. An action that is dead, but not buried, may be revived and relief may be granted during “the intersti­tial time existing between an order of dismissal and the entry of a judgment.”

Justice Higgitt noted the tension between the Second Department’s holding in Rubin and the First Department’s seemingly contrary ruling in Favourite Ltd. v. Cico, 208 AD3d 99 (1st Dep’t, 2022), in which the First Department held that the trial court lacked the discretion to grant leave to amend a complaint that had been dismissed on appeal without leave to replead. In Cico, the First Department dis­missed the plaintiffs’ second amended complaint for lack of standing and remanded the matter to the trial court for en­try of judgment. After dismissal, the defendant never acted on that order by obtaining the entry of judgment, and the plaintiffs attempted to revive the dismissed action by filing a motion for leave to amend. The trial court granted plaintiffs’ request, but the First Department reversed. The First Depart­ment held that following dismissal there was nothing left to amend, and the entry of a subsequent judgment constitutes a “mere ministerial act.” Cico will be argued before the Court of Appeals in April.

Overall, the CLE session was nuanced and highly infor­mative and will certainly inform litigation practice in the bar for 2024 and beyond.

Madeline R. Greenblatt, associated with Farrell Fritz, P.C., is a litigator who represents a broad range of individuals and entities in complex commercial matters. She has extensive experience in all phases of litigation in both state and federal courts as well as arbitrations and mediations with the American Arbitration Association and JAMS. Prior to joining Farrell Fritz, Madeline worked in private practice with an emphasis in general commercial litigation and real estate litigation.

Published in the NYSBA Commercial and Federal Litigation Section Newsletter | 2024 | Vol. 30 | No. 1

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