Rule 202.12. Preliminary Conference

(a) A party may request a preliminary conference at any time after service of process. The request shall state the title of the action; index number; names, addresses, and telephone numbers and email addresses of all attorneys appearing in the action; and the nature of the action. If the action has not been assigned to a judge, the party shall file a request for judicial intervention together with the request for a preliminary conference. The request shall be served on all other parties and filed with the clerk for transmittal to the assigned judge. The court shall order a date for preliminary conference in any action upon such request and subject to the following

(b) In the absence of a party request as set forth in subdivision (a), and except as provided in subdivision (g), after the filing of a request for judicial intervention, the court shall promptly email to all parties the form of a stipulation and order, prescribed by the Chief Administrator of the Courts which shall provide for completion of disclosure within twelve (12) months of the filing of the request for judicial intervention for a standard case, or within fifteen (15) months of such filing for a complex case. The form of the stipulation shall contain a certification by attorneys for the parties that they have met and conferred on the items set forth in sections 202.11 and 202.12(c). If all parties sign the form and return it to the court within thirty (30) days, such form shall be "so ordered" by the court and no preliminary conference shall be held unless the court orders otherwise. If such stipulation is not returned signed by all parties, the court shall schedule a conference to be held virtually before the court or, in the court's discretion, nonjudicial personnel, for the purpose of completing the form stipulation. Except where a party appears in the action pro se, an attorney thoroughly familiar with the action and authorized to act on behalf of the party shall appear at such conference.

(1) If the parties agree on the form stipulation it may be "so ordered" by the court. Where the parties cannot agree, or where issues arise that need judicial intervention, the court may schedule a conference before the assigned judge or before the judge in charge of the preliminary conference part. At the discretion of the court, the conference may be held virtually or in person. (2) At the preliminary conference the parties shall be prepared to discuss the items set forth in sections 202.11 and 202.12(c) and such other items as the court may direct.

(c) Where a case is reasonably likely to include electronic discovery, attorneys for all parties shall meet and confer on the subject of electronic discovery. If the parties are unable to reach a stipulation governing electronic discovery, the court may direct a conference on the subject. The parties or attorneys appearing at such conference must be sufficiently versed in matters relating to their clients' technological systems to discuss competently all issues relating to electronic discovery, and attorneys may bring a client representative or outside expert to assist in such e-discovery discussions. A non-exhaustive list of considerations for determining whether a case is reasonably likely to include electronic discovery is:

(1) Does potentially relevant electronically stored information ("ESI") exist; (2) Do any of the parties intend to seek or rely upon ESI; (3) Are there less costly or less burdensome alternatives to secure the necessary information without recourse to discovery of ESI; (4) The cost and burden of preserving and producing ESI and whether such costs and burdens are proportional to the amount in controversy; and (5) What is the likelihood that discovery of ESI will aid in the resolution of the dispute.

(d) The court may, in its discretion, either in advance of the preliminary conference or in response to the filing of the stipulation and order contemplated by subdivision (b) of this section, require the parties to provide to the court their positions on each of the items in sections 202.11 and 202.12(c) and such other matters as the court deems necessary or appropriate.

(e) The matters which may be considered at a preliminary conference or at the first conference before the court if the preliminary conference has been cancelled under sections 202.12(b) or 202.12(g), shall include:

(1) the positions of the litigants on the matters described in sections 202.11 and 202.12(c), particularly alternative methods for resolving the dispute, simplification and limitation of factual and legal issues, where appropriate, expedited disposition of the action, and effective controls to prevent protracted litigation due to lack of judicial management; (2) the terms, provisions and schedule included in the stipulation described above submitted by the attorneys for the litigants, and the establishment of a timetable for the completion of all disclosure proceedings, provided that all such procedures must be completed within the timeframes set forth in subdivision (b) of this section, unless otherwise shortened or extended by the court depending upon the circumstances of the case; (3) Where the court deems appropriate, it may establish the method and scope of any electronic discovery. In establishing the method and scope of electronic discovery, the court may consider the following non-exhaustive list, including but not limited to:

(i) identification of potentially relevant types or categories of ESI and the relevant time frame; (ii) disclosure of the applications and manner in which the ESI is maintained; (iii) identification of potentially relevant sources of ESI and whether the ESI is reasonably accessible; (iv) implementation of a preservation plan for potentially relevant ESI; (v) identification of the individual(s) responsible for preservation of ESI; (vi) the scope, extent, order, and form of production; (vii) identification, redaction, labeling, and logging of privileged or confidential ESI; (viii) claw-back or other provisions for privileged or protected ESI; (ix) the scope or method for searching and reviewing ESI; and (x) the anticipated cost and burden of data recovery and proposed initial allocation of such cost.

(4) addition of other necessary parties; (5) settlement of the action; (6) removal to a lower court pursuant to CPLR 325, where appropriate; and (7) any other matters that the court may deem relevant.

(f) At the conclusion of the conference, the court shall make a written order including its directions to the parties as well as stipulations of the parties' attorneys. Alternatively, in the court's discretion, all directions of the court and stipulations of the attorneys may be recorded by a reporter. Where the latter procedure is followed, the parties shall procure and share equally the cost of a transcript thereof unless the court in its discretion otherwise provides. The transcript, corrected if necessary on motion or by stipulation of the parties approved by the court, shall have the force and effect of an order of the court. The transcript shall be filed by the plaintiff with the clerk of the court.

(g) In its discretion, taking into account the caseload of the court, the nature of the claim, the absence of an IAS judge to preside, the inability of a defendant to retain counsel, the failure of an insurer to appoint counsel, or the inability of the parties to meet and confer, the presiding court, either in advance of the preliminary conference or at the request of one of the parties, may issue to all parties a case scheduling order setting forth a timetable which shall provide for completion of disclosure within 12 months of the filing of the request for judicial intervention for a standard case, or within 15 months of such filing for a complex case. If a case scheduling order is issued by the court the order may also provide for other terms and conditions as the court deems appropriate, and the preliminary conference shall be cancelled. In response to such scheduling order, any party may, within 10 days of entry of the scheduling order, object thereto and request a preliminary conference as described above.

(h) In the discretion of the court, failure by a party to comply with the order or transcript resulting from the preliminary conference, or with the so-ordered stipulation or scheduling order provided for in subdivisions (b) and (g) of this section, or the making of unnecessary or frivolous motions by a party, shall result in the imposition upon such party of costs or such other sanctions as are authorized by law.

(i) A party may request the court to advance the date of a preliminary conference upon a showing of appropriate circumstances. During the course of the case, any party may request such additional conferences as appropriate. The court will give the attorneys notice of the conference at least one week before any conference unless there are special circumstances requiring an earlier conference.

(j) The court, in its discretion, at any time may order such conferences as the court may deem helpful or necessary in any matter before the court.

(k) The provisions of this section shall apply to preliminary conferences required in matrimonial actions and actions based upon a separation agreement, in medical malpractice actions, and in real property tax assessment review proceedings within the City of New York, only to the extent that these provisions are not inconsistent with the provisions of sections 202.16, 202.56 and 202.60 of this Part, respectively.

(l) The provisions of this section shall apply where a request is filed for a preliminary conference in an action involving a terminally ill party governed by CPLR 3407 only to the extent that the provisions of this section are not inconsistent with the provisions of CPLR 3407. In an action governed by CPLR 3407 the request for a preliminary conference may be filed at any time after commencement of the action, and shall be accompanied by the physician's affidavit required by that provision. §202.12-a Residential Mortgage Foreclosure Actions; Settlement Conference

(a) Applicability. This section shall be applicable to residential mortgage foreclosure actions involving a home loan secured by a mortgage on a one-to four-family dwelling or condominium, in which the defendant is a resident of the property subject to foreclosure.

(b) Request for judicial intervention.

(1) At the time that proof of service of the summons and complaint is filed with the county clerk, plaintiff shall file with the county clerk a specialized request for judicial intervention (RJI), on a form prescribed by the Chief Administrator of the Courts, applicable to residential mortgage foreclosure actions covered by this section. The RJI shall contain the name, address, telephone number and e-mail address, if available, of the defendant in the action, and the name of the mortgage servicer, and shall request that a settlement conference be scheduled. Any P.O. Box or other alternate addresses associated with the defendant of which the servicer or its attorney is aware shall also be listed. If the mortgage servicer involved in the case and listed on the RJI is changed at any time following the filing of the RJI, plaintiff shall file with the court and serve on all the parties a notice setting forth the name and contact information of the new or substituted mortgage servicer.

(2) Upon the filing of the RJI, the court shall send either a copy of the RJI, or the defendant's name, address and telephone number (if available), to a housing counseling agency or agencies funded by the New York State Office of the Attorney General’s Homeowner Protection Program for the judicial district in which the defendant resides, for the purpose of that agency making the homeowner aware of free foreclosure prevention services and options available to the parties.

(3) In such county or counties as the Chief Administrator shall direct, in the event that a plaintiff fails to file proof of service of the summons and complaint in a residential mortgage foreclosure action with the county clerk within one hundred twenty days after the commencement of the action, or fails to file the RJI at the time of the filing of proof of service, the county clerk shall provide the Chief Administrator with the case name, index number, property address, and contact information of parties and counsel in the action. The Chief Administrator may take such further action as she deems fit with respect to such case or cases, including but not limited to (a) placing a case on a delinquency calendar; (b) providing case information to a housing counseling agency or agencies; and (c) ordering a status conference.

(c) Settlement conference.

(1) The court shall promptly send to the parties a Notice scheduling a settlement conference to be held within 60 days after the date of the filing of the RJI. The Notice shall be mailed to all parties or their attorneys, which must include mailing to the address of the property subject to the mortgage. The Notice shall be on a form prescribed by the Chief Administrator, and it shall set forth the purpose of the conference, the requirements of CPLR Rule 3408, instructions to the parties on how to prepare for the conference, and what information and documents to bring to the conference as specified in CPLR Rule 3408(e). The Notice shall further provide that the defendant contact the court by telephone, no later than seven days before the conference is scheduled, to advise whether the defendant will be able to attend the scheduled conference. The court shall also provide in such mailing a copy of the current Consumer Bill of Rights published by the New York State Department of Financial Services pursuant to RPAPL §1303-3-a.

(2) The conference shall be held to conduct settlement discussions pertaining to the relative rights and obligations of the parties under the mortgage loan documents, including determining whether the parties can reach a mutually agreeable resolution to help the defendant avoid losing his or her home, and evaluating the potential for a resolution in which payment schedules or amounts may be modified or other workout options may be agreed to, including but not limited to loan modifications, “short sales” and “deeds in lieu of foreclosure” or any other loss mitigation options . The court may also use the conference for whatever other purposes the court deems appropriate. Where appropriate, the court may permit representatives of either party to attend the conference telephonically or by video-conference. Any representative participating in the conference, whether in person, telephonically or by video conference, shall be fully authorized to dispose of the case, as required by CPLR Rule 3408(c).

(3) If the parties appear by counsel, such counsel must be fully authorized to dispose of the case. If the defendant appears at the conference without counsel, the court shall treat the defendant as having made a motion to waive costs, fees and expenses, and shall determine whether permission to so appear shall be granted pursuant to the standards set forth in CPLR section 1101. If the court appoints defendant counsel pursuant to CPLR section 1102(a), it shall adjourn the conference to a date certain for appearance of counsel and settlement discussions, and otherwise shall proceed with the conference.

(4) The parties shall engage in settlement discussions in good faith to reach a mutually agreeable resolution, including a loan modification if possible, consistent with CPLR Rule 3408(f) The court shall ensure that each party fulfills its obligation to negotiate in good faith and shall see that conferences not be unduly delayed or subject to willful dilatory tactics so that the rights of both parties may be adjudicated in a timely manner. The court shall ensure that procedures are in place to enforce the duty to negotiate in good faith, as defined in CPLR Rule 3408(f), consistent with the mandates of CPLR Rule 3408(i), (j), and (k).

(5) Documents.

(i) Plaintiff and Defendant shall bring all documents enumerated in CPLR Rule 3408(e) to each conference held pursuant to CPLR Rule 3408, in addition to any other documents required by the judge, referee or judicial hearing officer presiding over the case

(6) At the first conference held pursuant to CPLR Rule 3408, the court shall determine if the defendant has answered the complaint and shall provide defendants who have not answered information as mandated by CPLR Rule 3408(1). The court shall ensure that procedures are in place to note the vacatur of any defaults upon service and filing of answers pursuant to CPLR Rule 3408(m). The court shall schedule such other conferences as may be necessary to help resolve the action.

(7) All motions, other than motions addressing compliance with CPLR Rule 3408 or this rule, shall be held in abeyance while settlement conferences are being held pursuant to this section. A party may not charge, impose or otherwise require payment from the other party for any cost, including but not limited to attorneys' fees, for appearance at or participation in the settlement conference.

(8) Plaintiff must file a notice of discontinuance or stipulation of discontinuance and vacatur of the notice of pendency within 90 days after any settlement agreement or loan modification agreement is fully executed.

(d) Training. The Chief Administrator shall establish requirements for education and training of all judges and nonjudicial personnel assigned to conduct foreclosure conferences pursuant to this section.

(e) Reports. The Chief Administrator shall submit a report no later than the first day of November of each year to the Governor, and to the legislative leaders set forth in section 10-a(2) of chapter 507 of the Laws of 2009, on the adequacy and effectiveness of the settlement conferences, which shall include number of adjournments, defaults, discontinuances, dismissals, conferences held and the number of defendants appearing with and without counsel.

(f) The Chief Administrator of the Courts may continue to require counsel to file affidavits or affirmations confirming the scope of inquiry and the accuracy of papers filed in residential mortgage foreclosure actions addressing both owner-occupied and (notwithstanding section [a] supra) non-owner-occupied residential properties.