Fifth Judicial District To Expand Virtual Court Proceedings, but Still Limited

By: Christopher A. Powers

The COVID-19 pandemic has put much of daily life on hold, but there are positive signs that a return to normalcy, or at least the new normalcy, may not be far off.

Since approximately March 30, 2020, Central New York’s Fifth Judicial District (encompassing Herkimer, Jefferson, Lewis, Oneida, Onondaga and Oswego Counties) has been operating under Virtual Courtroom procedures for “essential” matters. Essential matters included criminal arraignments, bail applications, temporary orders of protection, sex offender registrations, child protection matters, mental health proceedings, guardianship matters, housing code violations, and other proceedings. Beginning today, April 13, 2020, the Fifth Judicial District will expand its virtual courtroom proceedings beyond essential matters.

You can view the full text of the Order here, but the general provisions of the Order are as follows:

  • The Court will continue to operate from one designated central location in each county to handle essential matters. All other court facilities other than the Central Locations remain closed.
  • Fully submitted undecided motions will be handled on a first-in/first-out basis unless a newer particular matter is deemed urgent.
  • No new civil case filings will be permitted; however, matters pertaining to existing filed cases may be considered in the discretion of the assigned judge.
  • E-filing will remain available only for essential filings, with this protocol to be reviewed weekly with the intent of gradually increasing the number of cases being handled. A Court user (judge, clerk, etc.) may use e-filing, however.
  • For non-essential matters, parties or their attorneys may contact chambers by email, the addresses of which will be published by each local bar association. Use of traditional mail is strongly discouraged. Parties and attorneys may call chambers, but messages are only being checked periodically so email is preferred.
  • The consideration of specific matters is within each judge’s discretion. All conferences and appearances that do occur shall be handled remotely by telephone conference or Skype for Business videoconference. Skype for Business is the only approved video platform at this time.
  • All motion practice remains on submission only unless otherwise directed by the assigned judge.
  • Any proceeding that requires a record will utilize a remote court reporter, if available. If unavailable, the proceeding will be tabled. No party may make a recording of a proceeding without the written permission of the court.
  • All parties and the court must promptly disclose the identities of all parties and individuals present during a virtual court appearance.
  • Do not disclose private cell phone numbers of court employees obtained in connection with a virtual appearance.
  • All documents exchanged via email should be sent to the Judge, law clerk, secretary and opposing counsel.

The above general provisions apply for all Fifth Judicial District Courts, with the following exceptions, which will be adjourned to a future date where personal appearances are possible:

  • Matters where one or more parties are proceeding pro se and unable to use remote technology, unless a judge determines that exigent circumstances exist
  • Cases where good cause is shown that the matter should be adjourned for reasons related to COVID-19 or otherwise
  • Evictions, foreclosures, default proceedings, and enforcement of money judgments

In addition to the general provisions above, the Court also released certain other directives for individual court parts, the highlights of which are below. See the full release for more detail.

Supreme Court – Civil Matters

  • Overdue undecided matters given priority on first-in/first-out basis
  • Second priority to judgments, stipulations, and orders approved by parties or unopposed.
  • Upon substantial completion of the above, proceedings may expand to other pressing matters including, but not limited to rescheduling trials and hearings, management of pending cases, resolving discovery issues, settlement conferences and other ADR processes, and other matters necessary to be heard in the interests of justice.
  • For “urgent” non-essential cases, motions and Orders to Show Cause shall be filed with the Chief Clerk at the Central Location to be processed by the Designated Judge on duty.
  • Court mediators may schedule and conduct mediations using the same protocols for case conferences used by the Court.

Supreme Court – Matrimonial

  • No matrimonial actions are deemed “essential” and documents are not being accepted for e-filing.
  • Urgent issues within pending matters may be addressed as follows:
    • Prioritize completion of all pending motions and decisions.
    • Then prioritize other pressing matters including but not limited to rescheduling trials and hearings where parties are represented, management of pending cases, motions, orders to show cause, settlement conferences, other ADR processes, and any other matter the court deems necessary to be heard in the interests of justice.
    • Judge has discretion to determine if a matter is urgent and will alert the parties how the matter will proceed.
  • Executive Order 202.7 provides for remote notarial acts so separation agreements can be properly acknowledged.
  • At this time, “no new cases” means we cannot file uncontested divorces or file a new action to preserve the date for retroactive support.

Surrogate’s Court

  • Pending motions and decisions are first priority along with pending cases and existing filings.
  • Filing of new estate/administration petitions is permitted for a fiduciary to be appointed in order to protect estate assets while matters are pending, including preliminary appointment with restrictions where appropriate. E-filing is preferred, but if such filing is unavailable it may be filed at the Central Location.
  • No citations to appear in court will be issued. All matters will be conducted remotely.
  • A Court representative shall be designated as the contact for questions and requesting permission to file petitions.
  • Urgent non-essential matters require a party to submit a short worksheet as approved by the Court, explaining the reasons the petition requires immediate action. The Court will review the worksheet and respond to the party directly.
  • Permissible filings include: new guardianship applications for disabled individuals or infants who have no current guardian where it is essential for their health, safety or well-being; applications to withdraw funds from restricted accounts during the economic hardship caused by the pandemic; uncontested wrongful death compromises and accounting procedures; other matters at the Surrogate’s discretion. The worksheet identified above should be used to submit such matters.

Family Court

  • Pending trials, motion and objection decisions and orders take priority, starting with oldest matters first.
  • The Court will use UCMS for all case information and will not remove hard files from the Courthouse. If necessary, the Court will contact attorneys to submit summaries of the case history.
  • Judges may contact attorneys in pending matters by email and hold conference calls as needed.
  • Trials and evidentiary hearings are held in abeyance until Court re-opens.
  • Matters featuring pro se litigants can be dealt with at the Central Location in conjunction with the judges and clerks if deemed necessary.
  • Similar to matrimonial matters, there is no mechanism to file new actions. This can affect support cases, where one party intends to seek retroactive arrears back to the date of filing.

Superior Criminal Courts

  • Pending trials, motions, decisions and orders take priority, beginning with oldest matters first.

City Court Proceedings

  • Pending trials, motions, decisions and orders take priority, with older matters first.
  • Once the above matters are completed, judges may schedule settlement conferences for small claims, commercial claims and civil claims where appropriate. If a judgment is required, it will be produced and entered after normal operations resume.

No end date was given for these new policies but expect more developments over the next few weeks. Check back to our COVID-19 Task Force home page for further updates.