Effective September 12, 2022, the New York Commercial Division Rules will require parties preparing responsive pleadings to “interlineate” the allegations which they are responding to within the responses themselves. Under new rule 202.70(g), titled “Interlineation of Responsive Pleadings”, counsel will essentially be required to restate the allegations of the complaint before responding to them in an answer. The rule change will likewise apply to answers to counter-claims and cross-claims.
The rationale behind newly added Commercial Division Rule 6(d) as set forth in the Memorandum regarding the Request for Public Comment on Proposal to Amend Commercial Division Rule 6 to Require the Interlineation of Responsive Pleadings, is that it permits parties and the court to read the answer itself, as a single document, without having to refer back to the original pleading. In adopting Rule 6(d), a single document (the answer) can now, theoretically, be utilized in various contexts. For example, and according to the Subcommittee on Procedural Rules to Promote Efficient Case Resolution (the “Subcommittee”), interlineated pleadings will facilitate motions to correct pleadings under CPLR § 3024, as well as motions challenging a party’s response to the requirements of CPLR § 3018. Now that responsive pleadings will contain both the original allegation and the response thereto, the movant will be able to direct the court to the precise allegation-response pair which it contends is inconsistent with the CPLR.
The Subcommittee also believes that the addition will also provide for quick reference to the pleadings in one document, rather than comparing multiple documents at once. This will allow parties to quickly reference certain admissions or denials and hopefully tailor its disclosure requests more precisely. It will also aid parties during depositions as only a single exhibit will be necessary, to the extent counsel wishes to question a deponent about particular admissions or denials contained within the responsive pleading. This is particularly helpful in more complex, high-value cases in which the pleadings and responsive pleadings are typically quite extensive and incredibly detailed, leaving room for confusion when comparing and relying on various pleading documents, both for the parties and the court.
There is also a question as to whether Rule 6 will eliminate the need for parties to attach both the original pleading and responsive pleading to any motions, including motions for summary judgment. Though this is unlikely, and it is prudent to annex both the complaint and the answer to any such motions, the addition of Rule 6 streamlines the court’s ability to refer to one document, as opposed to multiple, when reviewing exhibits annexed to motion papers.
At the very least, however, the addition of Rule 6 is likely to have practical implications on the application of CPLR § 4012. For example, during the course of litigation, it is not until the eve of trial that the allegations in the complaint (or other pleadings) and response thereto are incorporated into one document by virtue of the marked pleadings. Accordingly, the Subcommittee reasons that the rule change effectively modifies the requirements of CPLR § 4012, and Rule 6(d) now eliminates the need for a party to formally prepare “marked pleadings” in preparation for trial, as the interlineated pleadings have presumably been prepared at the beginning stages of an action. Gone are the days of lining up a complaint and an answer, side-by-side, allegation-by-allegation, in preparation for trial. In fact, by virtue of the amendment to Commercial Division Rule 6, the marked pleadings have been prepared in the early stages of litigation, months (or years) before trial is scheduled to begin.
The ultimate hope with the addition of Rule 6(d) to the Commercial Division Rules is to increase the readability and usability of responsive pleadings as well as to rely upon one document, as opposed to always comparing at least two documents side-by-side. Hopefully, practitioners will experience a level of efficiency not previously available, notwithstanding the additional time it will take to now draft and prepare responsive pleadings in accordance with Rule 6(d).