Response by the New York Federal & State Courts to COVID-19

NY Court House

New York Federal Courts

OVERVIEW

The response by the federal courts of New York to COVID-19 has been less drastic than the response by the New York State (“NYS”) courts. For example, in NYS court, pursuant to the Administrative Order of Chief Administrative Judge Lawrence Marks, all non-essential proceedings are halted. That means no filing of any kind – electronic or hard copy – is permitted. And pursuant to the Executive Order signed by Governor Cuomo, as of March 20, all time limits prescribed by New York procedural law, and all statues of limitations, are tolled until April 19, 2020.

By contrast, in the federal courts of New York, there is no sudden halt of proceedings or wholesale extension of deadlines. Although certain criminal law deadlines have been extended (for example, the EDNY has extended the period of time in which a preliminary hearing must be held in criminal proceedings), the majority of deadlines set forth in the Federal Rules of Civil Procedure remain in effect. And while the federal courts have issued orders limiting visitor access to the courthouse, none of the federal district courts have implemented a rule making telephonic/video conferencing mandatory. Instead, in the district courts, the individual judges are encouraged, in their own discretion, to update their rules of practice to provide for alternative methods to in-person court appearances. Perhaps most significantly, unlike the NYS court system, electronic filing is still permitted in all federal courts of NY.

As a general matter, unlike the NYS courts, there is no across-the-board directive governing the NY federal courts. Instead, each district court has implemented its own unique set of guidelines, permitting its federal judges to exercise their own discretion in updating their individual rules of practice. A limited review of the individual rules of practices of the federal district court judges suggests that they are all requiring alternative methods to in-person court appearances. It should be noted, however, that the federal bankruptcy courts have taken it a step further, and are all requiring mandatory telephonic/video conferencing.

It is not clear why the response to COVID-19 by the NYS court system has differed drastically in comparison to the response by the NY federal courts. One reason may be that, unlike federal courts, the state courts still rely on paper filings. For example, NY Civil Court and Housing Court do not permit e-filing, and NYS motion support offices still require working copy submissions. These paper filings must be handled by court personnel and present a higher risk of contamination. In addition, given the heavier case volume in the NYS court system, it may have been determined by the Chief Administrative Judge that a sudden halt of all proceedings was required to adjust to the rapidly changing health crisis, and to implement an updated set of procedures and protocols.

BACKGROUND

On March 27, 2020, Congress passed the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), which authorized the Judicial Conference of the United States to provide authority to Chief District Judges to permit the conduct of certain criminal proceedings by video or audio conference. The President signed the CARES Act into law on March 27, 2020.

On March 29, 2020, the Judicial Conference of the United States made the appropriate findings as required under the CARES Act, finding specifically that “emergency conditions due to the national emergency declared by the President under the National Emergencies Act (50 U.S.C. § 1601, et seq.) with respect to the Coronavirus Disease 2019 (COVID-19) have materially affected and will materially affect the functioning of the federal courts generally.”

There has not been an overarching order issued by the Administrative Office of the U.S. Courts (the “U.S. Admin. Office”). However, U.S. Admin Office issued a directive that recommended that federal district courts do the following:

  • Permit as many employees as is practicable to telework.
  • Postpone all courthouse proceedings with more than 10 people, such as naturalization ceremonies.
  • Conduct in-person court proceedings only when absolutely necessary.  Utilize videoconferencing or audioconferencing capabilities where practicable.
  • Conduct jury proceedings only in exceptional circumstances.
  • Limit the number of family members who attend proceedings.
  • Stagger scheduling of critical court proceedings to reduce the number of people in seating galleries, wells of courtrooms, conference rooms, and public waiting areas; and
  • Limit staff at critical courtroom proceedings to fewer than 10 people, and ensure that they are at least six feet apart.

Consistent with that directive, the NY federal courts have been coordinating with state and local health officials to obtain local information about the COVID-19, and have each issued orders relating to court business, operating status, and public and employee safety.

ANALYSIS

2nd Circuit

  • 21-day extension of time for all filings and deadlines effective through May 17, 2020. However, the deadlines for a notice of appeal, petition for review, or other document that confers jurisdiction on the Court are not affected.
  • Arguments to be heard as scheduled via telephone.
  • Access to courthouse by individuals who do not have business with the court will be denied. The majority of court staff are teleworking each day. A skeletal staff will report to the courthouse to perform tasks that cannot be done remotely.
  • Paper copies of documents that are otherwise required to complete a filing will not be required in any case.

Southern District of New York

  • Telephonic/video conferences and arguments are not mandatory. It is encouraged, but up to the discretion of each judge. Adjournments are to be given liberally.
  • March 9, 2020 – Colleen McMahon, Chief United States District Judge, issued an order restricting courthouse access to people who have visited certain countries in the last 14 days.
  • March 20, 2020 – Edward Friedland, District Court Executive, issued updated operations protocols for the conduct of business in the SDNY, effective March 23, 2020. These updates included the following:
    • Criminal case operations will proceed at the Daniel Patrick Moynihan Courthouse in Foley Square and the Charles L. Brieant Courthouse in White Plains, limited to the processing of new arrests, arraignments, bail appeals, and emergency matters. Arraignments are to take place in a larger courtroom.
    • In multiple defendant cases, no more than two persons will be arraigned at one time. Spectators will be required to sit in designated seats to preserve social distancing procedures. Counsel may appear by telephone at arraignments or bail hearings.
    • Civil case operations will proceed at the discretion of the individual judge. In-court appearances will be limited to emergency matters, and even these should be conducted by teleconference or videoconference if possible.
    • Emergency civil matters (orders to show causes for TROs) will be handled in the usual manner by the judge to whom the case is wheeled out to. Applications to participate by teleconference will be entertained and decided by the presiding judge.
    • Mediation: court ordered mediation will no longer take place in the courthouses. Mediators and the parties are encouraged to use alternate locations or other methods of convening mediation sessions.
  • March 27 – jury trials, both criminal and civil, are suspended until June 1, 2020.
  • March 30 – operations in the SDNY will be further curtailed.
    • No SDNY staff will be on site at 40 Foley and no Southern District matters will be heard in the Marshall courthouse with the exception of grand jury matters.
    • The Moynihan Courthouse at 500 Pearl Street will become the locus of activity in the SDNY. The courthouse will be open, but only to hear urgent criminal matters and matters in which immediate relief is sought pursuant to Rule 65(b).
    • For bail applications and TROs, participants must be working remotely.
    • Extensions of time – individual judges have been instructed to post on their web pages any orders of general applicability extending time in civil matter.

Northern District of New York

  • Telephonic/video conferences and arguments are not mandatory. It is encouraged, but up to the discretion of each judge. Adjournments are to be given liberally.
  • March 13, 2020 – NDNY courthouses remain open, with a skeletal staff in place. Staff in the Clerk’s office are available by phone. Mail will be received, and public counters remain open for filings. E-filing may still be made.
    • Group tours and visits, moot courts, bar meetings, etc. are suspended.
    • Civil and criminal jury selections and jury trials scheduled to commence from the date of the order through April 30, 2020 before any district or magistrate judge in any courthouse in the NDNY are continued.
  • March 16, 2020 – visitor restrictions for sick people or people who traveled to certain countries.
  • March 30, 2020 – video or telephone conferencing is authorized, with the consent of the defendant, for most criminal proceedings, including misdemeanor pleas and sentencings.

Eastern District of New York

  • Telephonic/video conferences and arguments are not mandatory. It is encouraged, but up to the discretion of each judge. Adjournments are to be given liberally.
  • March 16, 2020
    • Effective March 16 – April 17, all civil and criminal jury trials are continued pending further order of the court.
    • Individual judges may continue to hold conferences, bench trials and hearings in the exercise of their discretion, but are strongly encouraged to conduct court proceedings by phone or video conference, and/or adjourn matters or deadlines, or stay litigation, where in-person meetings would be necessary to prepare for any such proceedings.
    • Initial appearances shall continue to take place in the ordinary course, or remotely, depending on the judge.
  • March 17, 2020
    • In-person admission ceremonies at courthouse locations are suspended.
    • All petty offense proceedings are suspended.
  • March 18, 2020 – All criminal matters in which a magistrate judge must conduct a preliminary hearing on or between March 18, 2020 and April 27, 2020 is extended to 60 days after initial appearance.
  • March 27, 2020 – For all cases filed on or after March 18, 2020, Marshall Service is suspended through April 27, 2020.
  • March 30, 2020 – video or telephone conferencing is authorized, with the consent of the defendant, for most criminal proceedings, including misdemeanor pleas and sentencings.

Western District of New York

  • Telephonic/video conferences and arguments are not mandatory. It is encouraged, but up to the discretion of each judge. Adjournments are to be given liberally.
  • March 16, 2020
    • Continued criminal jury trials through may13
    • Confirmed that e-filing can still be made
    • Reduced courthouse staff
    • All ADR deadlines are extended 60 days
    • Mediator may adjourn mediation sessions for next 60 days, and no mediation sessions to be conducted in courthouses
  • March 19, 2020 – attorney admissions ceremonies suspended or through video conferencing.
  • March 30, 2020 – video or telephone conferencing is authorized, with the consent of the defendant, for most criminal proceedings, including misdemeanor pleas and sentencings.

Bankruptcy Court for the Southern District of New York

  • All hearings and conferences will be conducted telephonically as of 3/20.
  • 3/20
    • Parties should contact the judge’s courtroom to inquire whether upcoming evidentiary hearing will proceed as scheduled and be prepared to discuss procedures for conducting the hearing remotely.
    • Skeleton court staff.

Bankruptcy Court for the Northern District of New York – All hearings and conferences to be conducted telephonically, and there is a skeletal court staff.

Bankruptcy Court for the Western District of New York

  • All hearings and conferences to be conducted telephonically, and there is a skeletal court staff.
  • 3/17 – no longer accepting cash as payment for court fees.

Bankruptcy Court for the Eastern District of New York – All hearings and conferences to be conducted telephonically, and there is a skeletal court staff.

New York State Courts

Appellate Division

As of March 17, 2020, all Courts of the Appellate Division have suspended indefinitely deadlines for perfecting, filing or other deadlines such as those set forth by court order, Rules of the Appellate Division, and 22 NYCRR 1240 and 1250. This suspension does not apply to statutory deadlines. All motions and applications for extensions of time to perfect or file pending as of March 17 were granted without a date.  All Appellate Division Courts will only entertain emergency applications. No hard copy filing is permitted until further notice.

First Department

Filings may still be made by NYSCEF, if an e-filed case, or by e-mail to the Clerk. For non-electronically filed civil matters, the correct email addresses are:  AD1copy-civil@nycourts.gov and AD-1-clerksoffice@nycourts.gov.

All matters calendared for the March term will be heard on submission only.  All appeals calendared for the second and third weeks of the April 2020 term will be re-calendared.  Emergency applications may be submitted to AD1InterimApp@nycourts.gov, with notice via email to opposing counsel. Counsel will be notified by email as to the time and manner by which the application will be heard.

Second Department

As of March 25, 2020, the regular “Wednesday” hand-down of decisions will discontinued and decisions will continue to be released, although on an irregular schedule.

No hard copy filings will be permitted but filing may still be made by e-filing via NYSCEF. All filing made in connection with appeals that are not subject to mandatory e-filing shall be made through the digital portal accessible on this home page of this web site.

Emergency applications may be emailed to ad2clerk@nycourts.gov, with notice to your adversary. Counsel will be notified by email as to the time and manner by which the application will be heard. If you have an appeal on one of the Court’s calendars between now and April 2, that appeal will be taken on submission unless you contact the Court, at the above email to request to be heard via Skype.

 Third Department

All matters calendared for the March term will be heard on submission only, unless the matter involves an emergency. All matters currently scheduled for the April term are adjourned and will be re-calendared, unless it is an emergency. Emergency applications may be made by emailing ad3motions@nycourts.gov. Such email must indicate in the subject of the email the urgent nature of the request.

 Fourth Department

All matters calendared for the March/April 2020 term will be considered on submission only. All matters currently scheduled for May 2020 are adjourned.  The parties may notify the Court of any motions scheduled for those terms that are urgent by emailing ad4-clerk@nycourts.gov.  Any such email must be sent by April 9, 2020 and must indicate the nature of the request.

Emergency applications must be brought by order to show cause and may be filed by sending them to the above email address. No other applications or motions shall be submitted.

Any filing in connection with appeals subject to mandatory e-filing must still be filed via NYSCEF. Any digital filing made in connection with appeals not subject to mandatory e-filing may be submitted through the digital portal accessible here.

New York State

Effective March 18, 2020, all foreclosure auctions and conferences are postponed. The Civil Court is not accepting any new actions and proceedings unless for essential or emergency matters. Parties who wish to file new actions, proceedings or motions in Civil Court on an emergency basis can make an application in an emergency part for permission to file.

  • 71 Thomas Street, 80 and 111 Centre Street Courthouses are closed to the public. All essential applications will be heard in person at 60 Centre Street by the Ex-Parte Judge, except that Mental Health Hearings will be conducted remotely from 60 Centre Street.
  • Effective March 23, 2020, and until further notice, Queens Supreme Court, Civil Term will relocate to Queens Civil Court, Room 301 and the Queens County Clerk will relocate to room 244. All emergency applications in that Court will be heard by the Emergency Judge in room 301.
  • Richmond County Civil Courthouse is closed. All emergency applications for Richard Civil will be handled at Richmond Supreme Court.  For more information, call 646-386-5409.
  • Kings County Discovery Part will accept PC orders, submissions of compliance conference orders, and motions orders on consent. The Brooklyn Civil Courthouse is closed.  All emergency applications for Kings Civil and Housing Court will be handled at Brooklyn Supreme Court, Criminal term. For more information, call 347-404-9133.
  • Bronx County Housing Court is closed.  All emergency applications for the Bronx Housing Court will be handled in the basement of the Clerk’s Office at the Bronx County Courthouse.  For information, call 718-618-2500.

Courts Outside New York City

As of March 16, all courts outside of New York City have designated special court parts to hear essential matters. A list of locations may be found as part of Schedule A to the Memorandum found here of the Hon. Lawrence K. Marks, dated March 15, 2020.

New York Commercial Division

Three of the Justices of the New York Commercial Division have issued temporary part rules:  Justice Masley, Justice Schecter, and Justice Sherwood. Justice Friedman is expected to issue temporary rules in short order.

Surrogates Court

New York County has adjourned all matter scheduled to be heard through April 10, 2020. All paper filings are to be mailed by regular mail or, if brought in person, to be left in a box outside room 303.  The Court will no longer issue citations returnable before the court until after May 2020.  Parties with urgent matters are directed to call the Chief Clerk’s Office at (917) 509-7218.

Kings County has adjourned all matters returnable in the month of April. The contact information for Kings County is (347) 404-9700. Queens County has adjourned all matter through the weeks of April 9. New motions must be made returnable no earlier than April 23, 2020. Parties seeking emergency relief in Queens County must email qnssurr-emergency@nycourts.gov. Richmond County has postponed all calendars until further notice. Emergency matters may be made by contacting the Chief Clerk at 718-675-8504 or rcrrach@nycourts.gov. Bronx County has adjourned all matters through April 10. All papers must be filed by regular mail or by leaving in a box at the front entrance of the courthouse. Bronx County will no longer issue citations returnable before the court until after May 2020

All Trials

Effective March 16, pending trials and grand juries will continue to conclusion. Until further notice, no other criminal or civil trials may commence until further notice. No new grand juries may be empaneled absent exception circumstances.

All Motions

Effective March 16, unless otherwise directed by the court in exceptional circumstances, all motions in civil matters will be taken on submission.  When permitted, argument will be conducted by remote means or at a later date. Motions returnable in room 130 requiring working copies will be adjourned for 30 days. No hard copies may be submitted in Room 130.

Temporary Orders of Protection 

All temporary orders of protection issued in any matter that were due to expire on or after March 19, 2020 are extended under the same terms and conditions until further notice.

All Discovery

By order of the Justice Administrative Judge of the Courts, dated March 16, 2020, the prosecution of pending civil matters (including discovery) in any manner requiring travel or in-person appearances is strongly discouraged.  Parties to a civil litigation will not be penalized if discovery compliance is delayed for reasons related to the coronavirus.  Where a party is unable to meet discovery or litigation schedules, the parties must best efforts to postpone proceedings by agreement and stipulation for a period not to exceed 90 days. If no agreement may be reached, the proceedings shall be deferred until such later date when the court has review the matter.

All Non-Essential Functions are Postponed

Effective March 16, all non-essential functions of the Court are postponed until further notice. In addition, all eviction proceedings are suspended until further notice.

Non-Essential Filings Are No Longer Accepted

As of March 22, no papers will be accepted for filing in any New York court on any matter that is not an essential matter. These matters include a limited subset of criminal court and family court matters.  In Supreme Court, certain applications under the Mental Hygiene law, emergency applications for guardianship matters, all temporary orders of protection, emergency applications related to the coronavirus, emergency Election Law applications, and extreme risk protection orders.  In Civil and Housing Court, applications addressing landlord lockouts, reductions in essential services, serious code violations, serious repair orders, or for post-eviction relief will be heard.  Finally, all Court have the discretion to deem any other matter “essential.”

State Courts Go Virtual

During the week of March 23, New York City Criminal Court and Family Court systems began virtual operations.  Starting March 30, the following courts have gone virtual: the Fifth Judicial District, the Seventh Judicial District, Suffolk County, and the Court of Claims. The Court system anticipates that all Judicial Districts outside the City will be operating virtually to handle the essential and emergency matters.  In addition, the leaders of the tort, commercial, matrimonial and criminal bar are trying to find was to incrementally expand court access while minimalizing courthouse traffic.

 

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