The new Court Rule 22 NYCRR § 202.20-f states that before you can file a discovery motion against a non-responsive party, you must make good faith efforts to resolve the dispute, including efforts to conduct "an in-person or telephonic conference." As I discuss in an article published by the New York Law Journal in March, if/when you file a motion, you must submit an affidavit indicating, "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."  

One court took this requirement to an extreme degree, stating that seventeen (17) good faith letters to a party who failed to provide discovery responses were insufficient because none of the letters included the words, "in-person or telephonic conference." See Guzman v. 2420 LLC, 802367/2021E, 2024 N.Y.Misc LEXIS 10627 (Bronx County Sup. Ct. 2024). The First Appellate Division recently upheld this strict application of 22 NYCRR § 202.20-f. See Bayside Loan Servicing, LLC v. Evanson, 230 A.D.3d 1091, 218 N.Y.S.3d 103 (2nd Dept. 2024). Additionally, the leading Hornbook, New York Civil Practice: CPLR (Weinstein, Korn & Miller) added a notation to their Chapter, CPLR § 3124.01 (Failure to Disclose; Motion to Compel Disclosure), warning practitioners of this increased rules requirement.

Simply put, even if your adversary is brazenly non-compliant with their discovery obligations, if you want the Court to grant your motion to compel discovery, make sure your good faith efforts include efforts to schedule an "in-person or telephonic conference" because the New York Courts mean it.