Remote Proceedings - A Permanent Option in New York’s Commercial Division

The COVID-19 pandemic forced courts to quickly adopt the use of virtual technology. Now, some of the changes are here to stay, at least in the Commercial Division of the New York Supreme Court...

The COVID-19 pandemic forced courts to quickly adopt the use of virtual technology. Now, some of the changes are here to stay, at least in the Commercial Division of the New York Supreme Court.

On October 19, 2021, Chief Administrative Judge Lawrence K. Marks approved a new Commercial Division rule (22 NYCRR § 202.70(g)) that will permit virtual evidentiary hearings and non-jury trials, at the discretion of the judges and upon consent of the parties. Rule 36 is permanent and will take effect on December 13, 2021.

Modernizing Court Proceedings Beyond the Pandemic

While the use of technology allowed New York courts to remain at least partly operational during the height of the COVID-19 pandemic, its benefits are not limited to emergency situations. Given that New York is a commercial hub, the Commercial Division often hears disputes involving parties from all over the country. Virtual proceedings can make the litigation process more efficient for attorneys, litigants, and judges.

The Commercial Division Advisory Council first proposed making remote proceedings permanent last year. In a memorandum in support of the rule, the council wrote: “The primary reason the CDAC sees the need for such a rule is because allowing evidentiary hearings and non-jury trials to proceed virtually will reduce travel time and expense for clients, counsel, and witnesses.”

Minimum Standard for Virtual Proceedings

Rule 36 provides much-needed flexibility for New York commercial litigants. Nonetheless, it is important to note that all parties must agree before proceeding with virtual evidentiary hearings and non-jury trials. Additionally, because the new rule is permissive rather than mandatory, the court must also sign off. 

Rule 36 also contains several requirements that must be met with regard to the video technology used. Specifically, the video technology used must enable:

• A party and the party’s counsel to communicate confidentially;
• An option for access by interpreters for a person of limited English proficiency;
• A verbatim record of the trial; and
• Public access to remote proceedings.

Will New Jersey Follow Suit?

Changes may also be coming to New Jersey. In a Notice to the Bar, dated July 16, 2021, the New Jersey Judiciary requested comments on the future of court operations, including the continued use of remote proceedings. The Notice noted that stakeholders have expressed interest in making some of the changes to court operations permanent. “Stakeholders specifically have requested that certain routine court matters continue to be conducted remotely so as to reduce time and money costs for attorneys, clients, and court users who otherwise would be required to miss work, school, or other obligations,” the Notice stated.

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, Ajoe Abraham, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.