On July 28, 2025, Justice Chan of the New York County Commercial Division issued a decision in RSM US LLP v. Notes, 2025 NY Slip Op. 32971(U), rejecting a JHO’s award of sanctions because of the movant’s failure to meet and confer as required by the Commercial Division rules, explaining:
The court, however, will grant RSM’s motion to vacate on the narrow ground that Notes failed to comply with 22 NYCRR 202.7 and Commercial Division Rule 14 before filing his motion. It is well settled that, under 22 NYCRR 202.7, no motion shall be filed with the court unless there has been served and filed with the motion papers relating to disclosure an affirmation that counsel has conferred with counsel for the opposing party in a good faith effort to resolve the issues raised by the motion. This affirmation of good faith shall indicate the time, place and nature of the consultation and the issues discussed and any resolutions, or shall indicate good cause why no such conferral with counsel for opposing parties was held. Failure to comply with this requirement warrants denial of a discovery-related motion.
Here, there is no dispute that Notes’ original motion for sanctions did not include an affirmation of good faith as part of its filing. Nor did Notes attempt to satisfy this requirement after the deficiency was raised by RSM in its opposition. This requirement is incorporated into Commercial Division Rule 14.
JHO Ramos, however, did not address Notes’ failure to comply with 22 NCYRR 202.7 before concluding that RSM’s conduct in discovery warranted sanctions. This oversight however was in error. Indeed, the requirement that Notes submit an affirmation of good faith prior to filing a discovery-related motion is not a mere technicality; it reflects a failure to engage in collaborative efforts to resolve discovery issues. Therefore, JHO Ramos should have required Notes to comply with 22 NYCRR 202. 7-or otherwise addressed Notes’ failure to do so-before grappling with the substance of Notes’ motion for sanction.
In an effort to avoid this outcome, Notes asserts that the parties had continued to discuss the problems with RSM’s production deficiencies since the August 2024 Order, including back and forth emails since January 2025. For this reason, in Notes’ view, any further attempts to meet and confer would have been futile. On the present record, the court disagrees. It is, of course, true that the failure to include an affirmation of good faith is not necessarily fatal to a motion where, under the circumstances of the case, the movant establishes that any further attempt to resolve the dispute nonjudicially would have been futile. Here, by contrast, Notes’ contention that the parties had already discussed RSM’s self-explanatory production deficiencies at various points, without more details, falls short of making the requisite showing the futility of any further good faith attempts to meet and confer.
To be sure, JHO Ramos did conclude that RSM’s conduct, to date, had offended the notion of meaningful discovery and had otherwise failed to make a good faith effort to produce relevant documents. And this court is generally not inclined to substitute its judgment in place of JHO Ramos’ well-reasoned, first-hand determinations as to the parties’ conduct in the discovery process that he is overseeing. Nevertheless, because Notes did not meet his burden of demonstrating his good ·faith attempts to resolve the issues in his motion prior to its filing (or the futility of doing so), the issue of whether RSM engaged in sanctionable conduct was not yet ripe for JHO Ramos’ adjudication.
In sum, the court grants RSM’s motion to vacate the May 28 Order because Notes’ failure comply with 22 NYCRR 202. 7 and Commercial Division Rule 14 warranted denial of his sanctions motion. This determination is without prejudice to Notes’ right to re-file his motion before JHO Ramos following his demonstration of what good-faith meet·and·confer efforts were undertaken to resolve the issues
addressed in his sanctions motion.
(Internal quotations and citations omitted).