Due to the coronavirus pandemic, the New York state court system has been accepting only certified essential case filings. You have an open NYSCEF e-filed case, but it's "non-essential." You wish to file and press forward, but you're seemingly hamstrung, the case on hold. Or maybe not. New York procedure is guided mostly by service, not filing, and even in e-filed cases, email and old-fashion service provisions still apply, filing being secondary. Still, there exist certain traps for the unwary if a paper is served and not filed, or when operating remotely, as discussed below.

COVID Emergency

On March 22, 2020, the Chief Administrative Judge ordered that "effective immediately and until further order, no papers shall be accepted for filing by a county clerk or a court in any matter of a type not included on the list of essential matters." The list includes categories of matters and a catch-all provision for any other matter that the court deems essential. The directive applies to both paper and electronic filings.

A prior order of the Chief Administrative Judge, from March 19, 2020, "strongly discouraged" the prosecution of civil matters, including discovery, in a manner that required in-person appearances, travel, or actions inconsistent with the health emergency. It provided that where discovery and litigation schedules could not be met for reasons related to the coronavirus emergency, the parties "shall use best efforts" to postpone proceedings by agreement and stipulation for a period not to exceed 90 days; that absent such agreement, the proceedings "shall be deferred" until later court review and directive; and that participants will not be penalized if discovery compliance is delayed due to reasons related to the coronavirus emergency.

A notice and form have been added to the NYSCEF e-filing web page whereby under the catch-all provision of the Chief Administrative Judge's order, a party may apply to have a non-essential category case be deemed essential. Filings in such cases must bear the "Notice of Essential Filing" cover page, on which the user specifies the prior approval or designates the document as an application to deem the matter essential.

On April 7, 2020, the Chief Administrative Judge issued a memorandum to judges and staff titled "Next Steps," providing that the existing prohibition on the filing of new non-essential matters will continue, but that certain preliminary steps would be taken to open up remote access to the courts for non-essential pending cases, such as holding remote conferences and resolving pending issues.

Case Advancement May Be Desirable

A litigation is often a mass of momentum—David Siegel noting "the mass of papers that fly back and forth in litigation." Siegel, N.Y. Prac. §202 (Thomson Reuters 6th ed. 2019). One or more parties may wish to continue a case's momentum in any number of circumstances. A responsive pleading may be owed. A counterclaim or cross-claim may be desirable for its in terrorem effect. A bill of particulars may be in queue. A briefing schedule may have been set. Discovery requests and responses may be in process. A substitution of counsel may need to be served so as to effectuate that change.

One may wish to serve a motion, returnable by a date certain "or as soon thereafter" as the parties may be heard. While motion papers must be filed prior to the return date (22 NYCRR §202.8(a)), routine e-filing may soon reopen. Attorneys may agree among themselves to re-notice motions with the same papers when that occurs, if for no reason other than to front-load their inventory of tasks before the resumption of full-press litigation, and be first in line when it does. As well, while CPLR 2214(b) provides minimum time periods for noticing motions, there is no outer time-limit. Siegel §247.

E-Filing Does Not Require Contemporaneous Filing

While easy to overlook, e-filing consists of two separate functions: serving the other e-filing parties and filing with the court. Most of what occurs in litigation is guided by service, not filing. Siegel §§77, 202.

The e-filing rules are divided into provisions for consensual e-filing (22 NYCRR §202.5-b) and mandatory e‑filing (§202.5-bb), with the rules overlapping. Under the former, "documents may be filed and served by electronic means … and only to the extent and in the manner prescribed." §202.5-b(a)(1). Under the latter, "all documents filed and served in Supreme Court shall be filed and served by electronic means … and only to the extent and in the manner prescribed." §202.5-bb(a)(1).

But very few documents must be filed under New York procedure, which rules speak mostly of service, not filing. In addressing the timing of papers too, the procedural rules speak mainly of service, not filing. In most if not all situations, any desirable filing may come later.

As for documents being served by "electronic means," the e-filing rules define "electronic means" to encompass methods of electronic transmission that include email. §202.5-b(a)(2)(i); see §202.5-bb(a)(1) (incorporating consensual provisions). The e‑filing rules also provide that old-fashioned service may be used: "A party may … utilize other service methods permitted by the CPLR provided that, if one of such other methods is used, proof of that service shall be filed electronically." §202.5-b(f)(2)(ii); §202.5-bb(a)(1) (incorporating same). The rules additionally set forth an exemption from the requirement of electronic filing upon a showing of good cause. §202.5-bb(a)(1).

E-Signatures and Other Traps in Circumventing E-Filing

Attorneys accustomed to the filing-is-service aspect of e-filing should proceed carefully in circumventing the filing convenience. For instance, the e-filing system provides that a document is deemed signed if, among other electronic image choices, "it is electronically filed under the User ID and password of that person." §202.5-b(e)(1)(iii). Many attorneys are accustomed to signing documents with "/s", which is acceptable under this rule. But when decoupling the filing and service, the attorney need take care that the signature is in a form acceptable outside of the e-filing rules, such as actually signing. Aside from having an email trail, an affirmation of service may be prudent, in order to have a paper trail, especially if the served document is to be subsequently e-filed.

Traps for Remote Operations Out-of-State

Particular traps abound for attorneys suddenly working remotely out of state. A non-resident attorney still must have a physical office within the confines of New York state, although that is a curable defect. Arrowhead Capital Fin., Ltd. v. Cheyne Specialty Fin. Fund L.P., 32 N.Y.3d 645 (2019). There is also a question whether a New York attorney may act as such—and sign court documents—beyond state lines. A judge apparently cannot, as an emergency order signed at one's out-of-state home was deemed a nullity. Eric Dash, Weekend Legal Frenzy Between Citigroup and Wells Fargo for Wachovia, N.Y. Times, Oct. 5, 2008; Debra Cassens Weiss, Judge Holds Weekend Court at Home Over Wachovia Buyout Tussle, ABA Journal, Oct. 6, 2008. Nor may an attorney operating as a notary act beyond state lines, or for that matter any New York notary. N.Y. Exec. Law §135 ("Every notary public duly qualified is hereby authorized and empowered within and throughout the state …"); see Kudrov v. Kudrov, 6 Misc.3d 1030(A) (Sup. Ct.), on reargument, 12 Misc.3d 205 (Sup. Ct. Kings County 2005).

On the other hand, the bar admission rules admit a person "to practice law in the courts of the State of New York" (22 NYCRR §520.1(a)) and recite no territorial restriction as does the notary statute. Acting as a New York attorney out of state for a client within that state while not being admitted to that state bar is arguably practicing law without a license, punishable in that state. See In re Roel, 3 N.Y.2d 224, 227 (1957) (lawyer admitted to practice in Mexico but not New York, having New York office advising on Mexican law, including divorce law, adjudged in criminal contempt for practicing law without license and enjoined).

New Case Filing? Try Federal Court If Possible

As for filing new non-essential cases, or for removable cases, consider federal court if there is diversity jurisdiction or a federal claim that confers federal subject matter jurisdiction. At last check, federal court remains open with modified procedures, reduced drop-box pick-ups, and with ECF filing fully operational. SDNY COVID Memorandum, March 20, 2020 ("Cases filed electronically will continue to be processed and assigned to judges.").

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As such, there are options for moving one's non-essential e-filed case forward—options well worth understanding, and available even after the present health emergency subsides.

Brian Graifman is a partner at Borah, Goldstein, Nahins & Goidel, P.C., and a past co‑chair of the New York County Lawyers Association Committee on the State Supreme Court.