Judge Lawrence Knipel Part 14
Judge Lawrence Knipel is a justice of the Supreme Court for New York County. He sits in the Civil Branch, primarily handling torts, negligence, malpractice, contracts, administrative, and environmental matters. Judge Knipel was elected to the Supreme Court of the State of New York, 2nd Judicial District in 2012 after serving as a Justice of the Civil Court for nine years. He also served as a judge on the New York City Criminal Court prior to his elevation to Civil Court.
A native of Brooklyn, Judge Knipel graduated from SUNY Albany in 1976 and went on to receive his Juris Doctorate from Brooklyn Law School in 1979 . Prior to his election to the bench, Judge Knipel worked as an associate and senior counsel at Woronick & Ford on Long Island and as a senior associate at Whitman Breed Abbott & Morgan, also on Long Island. From 1984 to 1992, he served as aide to the former New York State Chief Judge Judith Kaye and later as Deputy Counsel for Governor George Pataki from 1995 to 2000. Judge Knipel was elected to the Civil Court in 2003 and after his election to the Supreme Court became the Supervising Judge of the Brooklyn Civil Court.
Judge Part Rules and Practices
Part Rules are the rules of procedure and decorum that have been put in place by the judge of a part to be used in the постановления of the cases that are before the court. Judge Knipel’s Part Rules can be found on the part’s webpage. In addition, the Rules of the Commercial Division are the rules that are applied to cases in this Commercial Division part.
The Part Rules are as follows:
Discovery Must Be Complete Before All Other Matters
All discovery must be complete by the compliance date of the preliminary conference ordered by the court. There will be at least one compliance conference before the preliminary conference compliance date to discuss discovery and settlement.
Formal Motions
Formal motions to be made contingent upon completion of discovery. Discovery disputes will be discussed at conferences prior to the preliminary conference compliance date. Non-urgent motions should be returnable on the regular short form notice of motion date.
Urgent Motions
The court will try to provide a decision within 48 hours of a motion being submitted. However, the court will only consider serious, substantive and urgent issues. When an urgent motion is denied, a copy of the order will be transmitted to the court where the motion was made returnable. Repeated appearances before the court without merit may result in the imposition of sanctions.
Affidavit of Service
An affidavit of service must be submitted along with all motions to show that the motion has been served properly.
Service Via Fax
Service via fax is permitted only with advance consent of the court and consent must be given by the close of business the day before the fax will be sent.
Coverage of The Part
Any attorney in good standing appearing in the court may cover in this court. Counsel taking over a matter must fulfill the requirements for an attorney appearing in this court.
Key Rules and Regulations
Judge Knipel’s courtroom operates under a set of rules that define the conduct and procedures that are unique to this court. She has certain preferences that attorneys and litigants should be aware of when appearing in her courtroom. These rules aim to maintain order and efficiency in the court.
One critical consideration for all practitioners comes in CPLR § 2103 (a) (4), which provides that service by mail is complete upon internal mailing, or picking up for delivery, to the staff of the Clerk of the court in which the action is pending. Judge Knipel’s Courtroom Clerk requires that any papers served by regular mail to the Court be sent in time to actually be delivered to the Court no less than three days after the date of mailing, and at least ten (10) full days before any return date. Should the return date fall on a Court holiday, the application must actually be delivered to the court by mail or by any other means at least two (2) days prior to the return date. This is to ensure that the Court actually receives the papers by the return date. If delivered to a regional office of the Clerk of the Court, the applicant must refer only to that office in the caption. This means that one cannot write "Hon. Vito P. Genna, Queens County" on the caption if in fact, the application was delivered to the far away Elmhurst Office. One must write "Hon. Vito P. Genna, Queens County, Eastern District" on the caption of an application mailed to the Elmhurst Office.
Moreover, when submitting an application for a stay, it is critical that counsel include a copy of the Notice of Appeal, and proof that it has been filed with the County Clerk’s office.
Counsel also have to be careful when relying upon affidavits from individuals who have not been cross-examined, even by consent. In Kauffman v M.G.M. Holding Corp., 218 AD2d 651 (1995), the court stated: Further, since the affidavits of defendant’s officers were never cross-examined (even by consent) in accordance with the provisions of CPLR 3117(c), nor in any other way timely rebutted by plaintiff, they constituted competent evidence of defendant’s lack of notice of Industrial’s lien in the first instance (see, Zuckerman v City of New York, 49 NY2d 557, 562-563). Conversely, plaintiff was unable to overcome defendant’s evidence with respect to its lack of notice of Industrial’s lien (see, CPLR 3212[a]; Kavanagh v Ogden Props., 188 AD2d 560, 562). In the absence of triable issues of fact, defendant was entitled to judgment as a matter of law.
Parties should include an affirmation in every motion practice which includes the date of filing of the appeal, which have not been cross-examined, or where there is an outstanding stipulation to sign the original decision, and/or where no answers have been filed by the adversary.
This uniformity of rules in Judge Knipel’s courtroom helps to avoid confusion and ensures that all parties are treated fairly and consistently.
Effects on Litigants
Impact on Legal Proceedings in Judge Knipel’s Court
Judge Knipel’s rules are few, but they set the tone for conduct and professionalism in all legal proceedings litigated before him. His courtroom rules and procedures are strictly followed. Failure to abide by his courtroom rules will undoubtedly result in an unfavorable ruling. There is no amount of oral argument or "friendly persuasion" that will convince Judge Knipel otherwise.
Prior to the initial appearance of an action, the court’s notice of entry of the application is posted on the wall of the 3rd Floor West hallway in the Kings County Civil Courthouse.
Pursuant to Uniform Court Rule 202.12(c), a party must make a good faith effort to resolve any discovery dispute or 3214 motion with opposing counsel prior to seeking relief from the court. In addition to the letter motion, a copy of the correspondence between the parties must be annexed. Before entering an order to show cause for failure to respond to a discovery demand or complying with a preliminary conference order, Judge Knipel issues an order to show cause for failure to make an effort to resolve the issue. Make no mistake, he is watching. Plaintiff/Defendant motions are returnable on alternating Mondays at 9:30 a.m. Unless otherwise directed by the court, counsel are to argue briefly the motion with no more than ten minutes of argument per side apiece.
Judge Knipel will not consider late applications or an attorney’s failure to appear. For example, in Barrus v. City of New York, NYSCEF # 502114, Judge Knipel denied a plaintiff’s motion for summary judgment as untimely filed. The application was made on June 12, 2008 seeking to calendar a trial date. However, pursuant to his Individual Part Rules a motion must be filed within 30 days of service of the note of issue. In Bonesky v. New York City Transit Authority, NYSCEF # 106759/07, Judge Knipel denied a party’s motion to conform the judgment to the verdict as untimely filed because it the application filed was beyond the 30 day time requirement of 22 NYCRR 202.32. Although these rulings seem harsh, Judge Knipel is consistent in his approach and intolerant of attorneys who plead ignorance of the law and his rules.
In Board of Mgrs. of President Street Condominium v. 160 President St. Corp., NYSCEF # 101973/07, Judge Knipel granted defendant’s motion for summary judgment but also stated that defendant was entitled to attorneys’ fees. However, Judge Knipel does not grant a motion for attorneys’ fees on a default. The misconduct must be shown on the record and then the court will consider awarding sanctions, once sanctions are properly placed on notice. An example of a case where he granted sanctions is City of New York v. Manshul Dev. Corp., NYSCEF # 116830/02. As a rule, Judge Knipel will not award attorneys’ fees unless there has been an offer to settle the matter prior to the filing of a motion.
Comparative Cases
Notably, there are some similarities with Judge Knipel’s rules and those of his colleagues in the same courthouse. Judge Laura Jacobson also requires that depositions be electronically formatted if they do not already exist in that condition. In addition, she allows non-clients to appear at a deposition for three hours. Judges Dawn Jiminez-Salta, Carlos T. Lazlo and Peter P. Sweeney are all predecessors of Judge Knipel. They, too, have electronic format requirements and time limits on deposition appearances. Judge Jiminez-Salta also allows for an additional stipulation. She will allow non-parties to appear at a deposition by way of video-conferencing. This rule does make sense, as not everyone can travel to New York County for a deposition. It is also common that many non-parties live in different states or countries.
Comparatively, in Richmond County, Judge Philip Lewis, who likewise requires depositions in electronic format, stipulates that at the same time of the deposition , copies must be made and served. Judge Ginamarie Fiorillo requires attorneys to engage in a pre-calendaring conference on their cases. While she does not specifically state that the attorney must be the one to attend the conference, it would not be prudent to have a non-attorney responsible for calendaring the forthcoming matters. Similarly, while the rules in Brooklyn require the parties to appear at the deposition, Judge Melvin L. Schweitzer stipulates that the deponent must appear. However, his language is ambiguous. It would be worthwhile to confirm that the testimony of the deponent will be taken as well as the party’s attorney at the deposition.
In Queens, Judge Irwin M. Silbar requires attorneys to meet and confer prior to calendaring. Similarly, Judge David Vaughn requires parties to appear for the deposition, however, his language is equally unclear as to whether the deponent is required to be present. Judge William E. McCarthy requires all transcripts to be delivered to the attorneys, which is similar to the other judges’ requirements; he simply expands the rule.
Practical Suggestions
Some practical advice for appearing in Judge Knipel’s courtroom. Be prepared – it is imperative that attorneys carefully review all the rules, procedures and practices of the Judges. Simply having a good working knowledge of the local and appellate rules is not enough. Each Justice has different procedures and diligent research is required to remain in compliance with same. In addition, Judicial practice may dictate the outcome of certain motions or applications, where the outcome would otherwise be dependent upon the rules. These judicial practices are thus equally as important as the rules, and may be available by simply calling the Court Clerk for assistance.
Research, research, research – Unfortunately, some of this information can only be gleamed from attorneys who appear repeatedly before the Judge, and converse with the Court Clerk. Understanding how each Judge operates takes time. Ultimately, it is up to the attorney to reach out on your own and learn how to comply with the Judge’s rules through your own independent research.
Confirmation – All conferences on the Circuit Level must be confirmable at least 48 hours in advance (already a foot fault). Do not wait until the last minute to confirm which Judge has your application or motion. Call the appropriate clerk well in advance to secure a judicial assignment and by which Judge your matter will be heard. This cannot be emphasized enough! It will save you the difficulties of repeated adjournments as a result of same.
Concluding Comments and Future Predictions
The impact of Judge Knipel’s rules and procedures extends beyond his own courtroom. As mentioned, the 2nd Department has adopted the Rule Writ practice as part of its case settlement procedures and appointed Justice Sherwood as chair of the task force on this process. The future of this process in the Supreme Court will become more certain as practitioners test the waters, but the use of the Rule Writ practice is already a useful negotiating tool.
Judge Knipel’s order requiring a response to a motion for summary judgment before opposition papers come due is an interesting twist that has not yet been adopted in any other part of the First Department, nor for that matter in any other part of the city. It may well be that we see this practice develop and become common in other parts of the state, but, at least as of now, it remains unique to Judge Knipel’s courtroom. Most of the complaints voiced by practitioners regarding this rule grow out of the fact that the Rule Writs are directed for the purpose of obtaining a dismissal of the case, and the remedy of a dismissal may be obtained in the ordinary course by a motion to dismiss the complaint or for summary judgment . Under these circumstances, it is often the case that an opponent’s Rule Writ submission operating as a "pre-effort" towards a granted motion to dismiss is accompanied by a note that counsel will then withdraw the Rule Writ voluntarily upon delivery of a further compliant pleading. One upcoming motion term is sure to be the proving ground for how the practice should operate, as when the expected motion from the defendant(s) to dismiss the complaint is likely to be filed. Little doubt that, once that practice does develop, the plaintiffs’ rule will jump back in with its own pre-emptive submission of a rule writ to dismiss the defendant’s motion to dismiss plaintiff’s complaint.
The significance of these rules and procedures, like many past innovations in the commercial division, will be in their future evolution. All in all, it would be unusual if, prior to settlement, there was a motion to dismiss the complaint, followed by a rule writ to dismiss the motion to dismiss the complaint, followed by a motion for summary judgment, followed by a rule writ to dismiss the motion for summary judgment. But with Judge Knipel’s arsenal at their disposal, one could not rule out a continuing expansion in the use of this particular form of rule practice.