New York Civil Practice
Law & Rules





NYCPLR Article 34

CALENDAR PRACTICE; TRIAL PREFERENCES

3401. Rules for the hearing of causes.
3402. Note of issue.
(a) Placing case on calendar.
(b) New parties.
3403. Trial preferences.
(a) Preferred cases.
(b) Obtaining preference.
3404. Dismissal of abandoned cases.
3405. Arbitration of certain claims.
3406. Mandatory filing and pre-calendar conference in dental, podiatric and medical malpractice actions.
(a) Mandatory filing.
(b) Pre-calendar conference.
3407. Preliminary conference in personal injury actions involving certain terminally ill parties.
(a) Request for conference.
(b) Preliminary conference.
Rule 3401. Rules for the hearing of causes. The chief administrator of the courts shall adopt rules regulating the hearing of causes, which may include the filing of notes of issue, the preparation and publication of calendars and the calendar practice for the courts of the unified court system. Insofar as practicable, such rules within the city of New York shall be uniform.

Rule 3402. Note of issue.

(a) Placing case on calendar. At any time after issue is first joined, or at least forty days after service of a summons has been completed irrespective of joinder of issue, any party may place a case upon the calendar by filing, within ten days after service, with proof of such service two copies of a note of issue with the clerk and such other data as may be required by the applicable rules of the court in which the note is filed. The clerk shall enter the case upon the calendar as of the date of the filing of the note of issue.

(b) New parties. A party who brings in a new party shall within five days thereafter serve him with the note of issue and file a statement with the clerk advising him of the bringing in of such new party and of any change in the title of the action, with proof of service of the note of issue upon the new party, and of such statement upon all parties who have appeared in the action. The case shall retain its place upon the calendar unless the court otherwise directs.

Rule 3403. Trial preferences.

(a) Preferred cases. Civil cases shall be tried in the order in which notes of issue have been filed, but the following shall be entitled to a preference:
1. an action brought by or against the state, or a political subdivision of the state, or an officer or board of officers of the state or a political subdivision of the state, in his or its official capacity, on the application of the state, the political subdivision, or the officer or board of officers;
2. an action where a preference is provided for by statute; and 3. an action in which the interests of justice will be served by an early trial.
4. in any action upon the application of a party who has reached the age of seventy years.
5. an action to recover damages for medical, dental or podiatric malpractice.
6. an action to recover damages for personal injuries where the plaintiff is terminally ill and alleges that such terminal illness is a result of the conduct, culpability or negligence of the defendant.

(b) Obtaining preference. Unless the court otherwise orders, notice of a motion for preference shall be served with the note of issue by the party serving the note of issue, or ten days after such service by any other party; or thereafter during the pendency of the action upon the application of a party who reaches the age of seventy years, or who is terminally ill.

Rule 3404. Dismissal of abandoned cases. A case in the supreme court or a county court marked "off" or struck from the calendar or unanswered on a clerk`s calendar call, and not restored within one year thereafter, shall be deemed abandoned and shall be dismissed without costs for neglect to prosecute. The clerk shall make an appropriate entry without the necessity of an order.

Rule 3405. Arbitration of certain claims. The chief judge of the court of appeals may promulgate rules for the arbitration of claims for the recovery of a sum of money not exceeding six thousand dollars, exclusive of interest, pending in any court or courts except the civil court of the city of New York, and not exceeding ten thousand dollars, exclusive of interest, pending in the civil court of the city of New York. Such rules must permit a jury trial de novo upon demand by any party following the determination of the arbitrators and may require the demander to pay the cost of arbitration; and shall also provide for all procedures necessary to initiate, conduct and determine the arbitration. A judgment may be entered upon the arbitration award. The rules shall further provide for the recruitment and qualifications of the arbitrators and for their compensation; except that such rules may authorize use of judicial hearing officers as arbitrators. All expenses for compensation, reimbursement and administration under this rule shall be a state charge to be paid out of funds appropriated to the administrative office for the courts for that purpose.

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Article 34 Continued . . .

Rule 3406. Mandatory filing and pre-calendar conference in dental, podiatric and medical malpractice actions.

(a) Mandatory filing. Not more than sixty days after issue is joined, the plaintiff in an action to recover damages for dental, medical or podiatric malpractice shall file with the clerk of the court in which the action is commenced a notice of dental, medical or podiatric malpractice action, on a form to be specified by the chief administrator of the courts. Together with such notice, the plaintiff shall file: (i) proof of service of such notice upon all other parties to the action; (ii) proof that, if demanded, authorizations to obtain medical, dental, podiatric and hospital records have been served upon the defendants in the action; and (iii) such other papers as may be required to be filed by rule of the chief administrator of the courts. The time for filing a notice of dental, medical or podiatric malpractice action may be extended by the court only upon a motion made pursuant to section two thousand four of this chapter.

(b) Pre-calendar conference. The chief administrator of the courts, in accordance with such standards and administrative policies as may be promulgated pursuant to section twenty-eight of article six of the constitution, shall adopt special calendar control rules for actions to recover damages for dental, podiatric or medical malpractice. Such rules shall require a pre-calendar conference in such an action, the purpose of which shall include, but not be limited to, encouraging settlement, simplifying or limiting issues and establishing a timetable for disclosure, establishing a timetable for offers and depositions pursuant to subparagraph (ii) of paragraph one of subdivision (d) of section thirty-one hundred one of this chapter, future conferences, and trial. The timetable for disclosure shall provide for the completion of disclosure not later than twelve months after the notice of dental, podiatric or medical malpractice is filed and shall require that all parties be ready for the trial of the case not later than eighteen months after such notice is filed. The initial pre-calendar conference shall be held after issue is joined in a case but before a note of issue is filed. To the extent feasible, the justice convening the pre-calendar conference shall hear and decide all subsequent pre-trial motions in the case and shall be assigned the trial of the case. The chief administrator of the courts also shall provide for the imposition of costs or other sanctions, including imposition of reasonable attorney`s fees, dismissal of an action, claim, cross-claim, counterclaim or defense, or rendering a judgment by default for failure of a party or a party`s attorney to comply with these special calendar control rules or any order of a court made thereunder. The chief administrator of the courts, in the exercise of discretion, may provide for exemption from the requirement of a pre-calendar conference in any judicial district or a county where there exists no demonstrated need for such conferences.

Rule 3407. Preliminary conference in personal injury actions involving certain terminally ill parties.

(a) Request for conference. At any time, a party to an action who is terminally ill, and who asserts in a pleading in such action that such terminal illness is the result of the culpable conduct of another party to such action, may request an expedited preliminary conference in such action. Such request shall be filed in writing with the clerk of the court, and shall be accompanied by a physician`s affidavit stating that the party is terminally ill, the nature of the terminal illness, and the duration of life expectancy of such party, if known. The court shall hold a preliminary conference in such action within twenty days after the filing of such a request.

(b)

1. Preliminary conference. At such preliminary conference, the court shall issue an order establishing a schedule for the completion of all discovery proceedings, to be completed within ninety days after the date of the preliminary conference, unless it can be demonstrated for good cause that a longer period is necessary.

2. At such preliminary conference, the court shall issue an order that a note of issue and certificate of readiness be filed in such action within a period of time specified in the order, that the action receive a preference in trial, and that the trial be commenced within one year from the date of such order. In its discretion, and upon application of any party, the court may advance or adjourn such trial date based on the circumstances of the case.

3. Notwithstanding the provisions of subdivision (b) of rule 3214 of this chapter, the service or pendency of a motion under rule 3211, 3212 or section 3213 of this chapter shall not stay disclosure in an action where a preliminary conference order has been entered pursuant to this rule.