COVID-19 and The New York State Courts: “Up and Running” For “Essential and Emergency Matters”

• Posted on: Mar 30 2020

It is said that justice never sleeps. This is true, even as we adjust to life during the coronavirus pandemic. Although state and federal courts around the country have limited the business they handle, they nonetheless remain open. But what does this mean? 

The Lower Courts

The State of New York has answered this question through several recent court orders. These orders make clear that the courts are, as Chief Judge Janet DiFiore stated in a recent online message, “up and running” so as “to provide access for all essential and emergency matters during the coronavirus outbreak.” (Here.)

On March 22, 2020, Chief Administrative Judge Lawrence Marks issued administrative order AO/78/20 (here), which markedly curtailed the receipt of papers filed in the Uniform Court System (“UCS”) and by county clerks in litigation matters. The order applies to both paper and electronic filings and extends to all trial courts.

Chief Administrative Judge Marks issued the order in light of the public health concerns of the coronavirus, and to comport with Governor Cuomo’s recent Executive Order, which suspended and tolled the statutes of limitations for the commencement or filing of legal actions, as well as the time limits governing all actions and proceedings in the State’s criminal, family, civil, surrogate’s and appellate courts. (See Executive Order 202.8, here.) 

The order makes clear that the courts will accept filings only in matters deemed to be “essential.” Arraignments and emergency proceedings, such as (a) mental hygiene applications, civil commitments and guardianships, (b) child protection proceedings, juvenile delinquency proceedings, family offenses, emergency support orders, and (c) landlord lockouts, serious code violations, repair orders and post-eviction relief, fall into the definition of “essential”. A complete list of essential matters is attached to the order. In addition, judges may deem any individual matter to be “essential” as circumstances require. This catch-all provision is intended “to address the very rare case[] where individual facts necessitate an immediate hearing notwithstanding current public health concerns.” However, the catch-all provision “will be interpreted restrictively.”

It is important to note that the order concerns legal papers relating to litigation matters filed in the UCS. It does not pertain to filings with the County Clerk acting other than as a clerk of the court – including matters set forth in CPLR § 8021.

Moreover, the order does not address discovery in pending matters, which remains governed by a prior administrative order and relies on the agreement of the parties to the fullest extent possible. In the event that discovery disputes and conduct require judicial intervention, the courts will address them at a later date.

Finally, the order addresses only the filing of documents and does not address service of process. As Chief Judge DiFiore explained in her recent message, “in light of the filing prohibition and the Governor’s extension of statutes of limitation, service of (unfiled) process should and will be suspended by parties in non-essential matters.” 

As to preliminary, compliance and status conferences, Chief Administrative Judge Marks severely limited their occurrence in a prior administrative order (here). However, since that order on March 13, 2020, judges have been adjourning such conferences without a new date. 

On March 25 and 26, 2020, two courts went virtual. On March 25, 2020, the New York City Criminal Court initiated its second phase of videoconferencing arraignments. Under this phase, all parties will participate in court proceedings by videoconferencing using Skype for Business. All arraignments will be virtual, with the judge, prosecution and defense attorney and defendant appearing from remote locations. On March 26, 2020, the New York City Family Court started virtually hearing the following matters: child-protective intake cases involving removal applications, newly-filed juvenile delinquency intake cases involving remand applications, emergency family offense petitions and writ applications where there is a court order of custody or parenting time.

The Appellate Courts

The State’s four appellate divisions have their own rules to deal with the coronavirus health emergency. 

In the First Department (here), the Court maintained the filing deadlines for its May and June Terms, but suspended the deadlines to perfect, file, or otherwise comply with the rules of court until further order of the Court, except where mandated by statute. As of the date of this post, the Court adjourned all arguments scheduled for the April Term; these arguments will be re-scheduled at a later date.

Notably, the Court said that all filings made in connection with appeals subject to mandatory e-filing must be filed via NYSCEF in a timely manner and in accordance with the procedural and electronic rules of the Court. However, the Court suspended the requirement that the hard copy filing must follow the e-filing. In fact, the Court is not permitting the filing of hard copy documents. 

The Court will also consider emergency applications and attorney grievance committee matters.

In the Second Department, the Court has essentially closed its physical doors to the public, but not its virtual ones, at least for emergency matters. Pursuant to a recent notice and order (here, here), the Court will entertain emergency applications only. While litigants may continue to make electronic filings on the NYSCEF portal, the filings will not be reviewed as the Clerk’s Office will not be staffed to do so until further notice. 

Like the First Department, all deadlines to perfect, file, or otherwise comply with the rules of court are suspended until further order of the Court.

The Court will continue to process its calendars through April 2, 2020. Thus, for litigants with an appeal on one of the Court’s calendars, that appeal will be taken on submission unless the litigant contacts the Court by email to request an argument via Skype.

The Court will also entertain emergency applications and attorney grievance committee matters.

In the Third Department (here, here), the Court is considering all appeals from the March Term on submission only and adjourning all appeals for the April Term. The Court will re-calendar all April Term matters for a later term. Any appeal deemed to be an emergency by the parties may be treated as urgent. 

Like the First and Second Departments, all deadlines to perfect, file, or otherwise comply with the rules of court are suspended pending further order of the Court, except where mandated by statute. 

The Third Department is open with limited staff to accept NYSCEF filings and paper submissions where the parties choose to continue to file.

The Court will entertain only emergency applications. 

In the Fourth Department (here, here, here, here and here), all matters calendared for the March/April 2020 Term will be considered on submission only, without oral argument. All matters currently scheduled for the May 2020 Term have been adjourned and will be re-calendared for a later term.

For matters scheduled during the March/April 2020 Term or the May 2020 Term that the parties deem to be urgent, an application may be made in writing, on notice to all parties, to request that the Court consider the matter on an expedited basis. Such notification must be made by email no later than April 9, 2020. 

The Court will entertain only emergency applications brought by order to show cause.  Such emergency applications are to be filed by email.

The Fourth Department is accepting digital filings through NYSCEF for appropriate cases and through its digital portal in other cases. The Court suspended the requirement of hard copy submissions until further order of the Court. In fact, the Court is not permitting the filing of hard copy documents. 

Similar to its sister departments, all deadlines to perfect, file, or otherwise comply with the rules of court are suspended pending further order of the Court, except where mandated by statute.

In the New York State Court of Appeals (here), all filing deadlines and filing procedures remain in place, except that no in-person filings are permitted without prior arrangements made upon telephonic consultation with the Clerk’s Office.

The Court has adjourned oral arguments for the remainder of the March Term. The Court is considering changes to the April/May oral argument sessions and will notify parties directly as to how it will proceed. The Court will continue to consider cases that have been submitted.

The Blog’s Message

We understand that questions concerning the State’s court system are not high on the list of questions our readers have been asking about the coronavirus. But, for those who are thinking of starting an action, or who have a pending one, we hope that this post provides you with some answers. 

While we will continue to post articles on this Blog about substantive legal issues, we want you to know that nothing is more important to us than the health and safety of our families, friends, readers, clients, colleagues and communities. We therefore hope that all are healthy and safe and remain so during this public health crisis.