If you have ever looked at a contract’s New York choice-of-law provision or a status conference stipulation and thought to yourself, “Who wrote this darned thing?” then now is your chance to weigh in. The Commercial Division Advisory Council has recommended two new forms—a model choice-of-law provision and a model status conference stipulation and order form—and the Office of Court Administration is soliciting public comments. Comments should be emailed to rulecomments@nycourts.gov by August 25, 2017.

Standard New York Choice-of-Law Provision

The proposed sample choice-of-law provision, which would be appended to the Rules of the Commercial Division, is as follows:

THIS AGREEMENT AND ITS ENFORCEMENT, AND ANY CONTROVERSY ARISING OUT OF OR RELATING TO THE MAKING OR PERFORMANCE OF THIS AGREEMENT, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO NEW YORK’S PRINCIPLES OF CONFLICTS OF LAW.

The gentle reader must forgive the ALL-CAPS format of the original proposed text (presumably this provision was intended to be read loudly in a New York accent). This proposed uniform provision is intended to (1) assist drafters who wish to choose New York law to govern disputes; (2) reduce litigation over choice-of-law issues; and (3) showcase New York’s “predictable and sensible commercial law” and thereby increase commercial litigation in New York courts. Whether increased commercial litigation in New York’s courts is a desirable goal may be open to debate, but few would object that litigation over sloppily-drafted choice-of-law provisions should be eradicated to the extent possible.

Model Status Conference Stipulation and Order

The Advisory Council has also recommended the adoption of a revised model status conference stipulation and order for use in the Commercial Division. This revised form, which can be viewed here, was designed to incorporate changes in Commercial Division rules and practice since the form was last revised in October 2015. The proposed form has a new section on expert discovery, contains reminders on the finality of discovery deadlines and the availability of alternative dispute resolution, and allows for greater specificity regarding discovery topics. As a model form it is not mandatory, but insofar as it is used as a guide by judges it provides a comprehensive overview of the discovery topics that a court would need to address.

Several weeks ago, we reported on some recent updates to Manhattan Commercial Division Justice Bransten’s individual practice rules. New York commercial litigators should take note of some recent changes in the Queens County Commercial Division as well.

According to an official announcement from the Queens County Commercial Division, as of April 3, 2017, all Commercial Division motions made before Justices Marguerite A. Grays or Leonard Livote must be made returnable directly before either judge in their respective Commercial Division Parts and on their respective motion days (as opposed to the Queens County’s Centralized Motion Part or “CMP”), with the corresponding Notices of Motion or Proposed Orders to Show Cause bearing the words “COMMERCIAL DIVISION” in boldfaced type.

Justice Grays’s individual practice rules and Justice Livote’s individual practice rules, particularly with respect to Commercial Division motions made before them (again, as opposed to the CMP), are virtually identical. Some specifics worth noting:

• Both judges designate Tuesdays as their motion day, first call at 10:00 a.m.;

• Both judges emphasize the above-referenced “COMMERCIAL DIVISION” marking requirement, cautioning that non-compliance “may result in the motion being calendared in the CMP”;

• Both judges require that all moving papers be filed in hard copy in the Motion Support Office “at least five business days prior to the scheduled return date.” All answering papers, cross-motions, and replies, on the other hand, “will be accepted only on the return date in the Part”;

• Both judges require in-person appearances by counsel or pro se litigants on the return date of all disclosure motions and Orders to Show Cause, cautioning that such “papers will not be accepted from a calendar service”; and

• Both judges require that all applications for adjournment be made in person on the return date. Again, “calendar service or non-attorneys will not be permitted to make applications for adjournments.”

These are welcome distinctions for litigants interested in prosecuting and/or defending their commercial cases expeditiously. Before April 3, 2017, a commercial litigator wishing to make a motion in the Queens County Commercial Division was left to navigate the many and specific procedures of the CMP where motions are seemingly ever subject to the prospect of being “administratively rescheduled,” “marked off,” outright “discarded,” or otherwise delayed because of some other emboldened, highlighted, and/or underscored procedural particularity.

New Rules Shutterstock_317335106One aspect of the Commercial Division that makes it a highly desirable forum for litigators and litigants alike is its focus on the efficient administration of justice. The Commercial Division Advisory Council (the “Advisory Council”), established by New York’s Chief Judge to make recommendations to improve and enhance the Commercial Division, recently proposed three amendments to the Rules of the Commercial Division that would each further this objective.

Standard Alternative Forum Selection Clauses

In light of concerns that were raised after the Chief Administrative Judge issued an Administrative Order, dated March 6, 2017, adopting the Advisory Committee’s September 2016 proposal to add a sample forum selection clause designating the Commercial Division as the chosen forum, the Advisory Committee recently issued a revised proposal. The concerns centered on the potential for the original sample forum selection clause to limit commercial litigants’ access to the New York federal courts. The new proposal addresses this by including two sample forum selection clauses: one designates the Commercial Division exclusively as the chosen forum, while the other provides that the parties agree to submit to the exclusive jurisdiction of either the Commercial Division or the New York federal courts.

 Further Support For Commercial Division Justices to Impose Sanctions

Referencing the finding of the Chief Judge’s Task Force on Commercial Litigation in the 21st Century that sanctions are often underutilized in Commercial Division Cases, the Advisory Council proposed an amendment to the Commercial Division Rules intended to provide additional support for Commercial Division judges to impose sanctions. The proposed amendment, which identifies “the need to conserve client resources, to promote efficient resolution of matters, and to increase respect for the integrity of the judicial process” expressly authorizes Commercial Division judges to “impose sanctions . . . against parties (or counsel) who fail to comply with case management deadlines and other discovery orders.”

Attorney Certifications Regarding ADR

Finally, the Advisory Council has also proposed a new rule aimed at increasing ADR utilization in the Commercial Division. The proposed rule would require attorneys to certify at the preliminary conference, and at each compliance or status conference, that they have discussed ADR options with their client(s) and to state whether their client(s) is willing pursue mediation during the litigation.  If the parties are both willing to mediate their dispute, they would be required to jointly propose a date by which they will select a mediator, but does not require that they set a deadline for the mediation to begin.

You’re a commercial litigator in New York. You’ve just been brought in on a case pending in the Commercial Division before a particular Commercial Division judge.  Or maybe you’ve just received an administrative bounce to a Commercial Division RJI Addendum, assigning your case to a particular Commercial Division judge sitting in the county where you recently filed motion papers or requested a preliminary conference. What’s the first thing you do?  You check the rules, of course.

Obviously, that begins with familiarizing (or re-familiarizing as the case may be) yourself with the Commercial Division Rules – particularly Rules 7 through 24, which supersede the Uniform Civil Rules with respect to conferencing your case and engaging in motion practice.

Know the Rules

But you also should look to see whether the particular Commercial Division judge assigned to your case has individual practice rules – which rules, in turn, often supersede or otherwise modify the Commercial Division Rules. Those Commercial Division judges that have individual practice rules update their rules with some regularity, so you also should make a point of checking them periodically.

As a recent example, Manhattan Commercial Division Justice Eileen Bransten, whose practice rules begin with the general principle of application noted above – namely, that “the Commercial [Division] Rules govern all cases before Justice Bransten unless modified or changed below” – updated her rules in March of this year. Some of the more notable updates to Justice Bransten’s “Practices in Part 3” are as follows:

  • Correspondence with the Court:       All letters to Justice Bransten, including pre-motion conference letters under Commercial Division Rule 24, in addition to being e-filed on the NYSCEF system, must be “hand delivered” to her Part Clerk and must conform to the font requirements of “Times New Roman, Size 12.”
  • Court conferences: Justice Bransten’s updated practice rules link to forms for the New Revised Preliminary Conference Stipulation and Order, as well as the New Compliance Conference Stipulation and Order, both of which are required for conferences held in Part 3.
  • Filing under seal: Justice Bransten’s updated practice rules provide for extensive direction concerning the filing of documents under seal:
    • Applications to file under seal must be made by Order to Show Cause;
    • Parties must meet and confer regarding the documents proposed for sealing before making a motion to file under seal;
    • Motions to file under seal will be considered in light of the limitations imposed on sealing as dictated by recent case law; moving parties must propose document redactions “as opposed to the wholesaling sealing of documents”;
    • Any document proposed for sealing must be filed in its original, un-redacted form as an exhibit to the motion, with the proposed redacted version of the document filed “as a subset of that exhibit”;
    • All motions to file under seal must be accompanied by a jointly-created index of the documents proposed for sealing, to include the basis for the proposed sealing and any objection thereto.
  • Motion practice in general:
    • Justice Bransten requires a courtesy (hard) copy of all e-filed motion papers;
    • If a party wishes to submit a deposition/hearing transcript or an arbitration award as an exhibit to a motion, the document must be submitted in its entirety as opposed to excerpts;
    • When submitting a Statement of Material Facts under Commercial Division Rule 19-a in support of a motion for summary judgment, a party must provide specific “references to appropriate documentation” establishing that the facts are undisputed; the party opposing the motion must “first repeat the movant’s claimed undisputed facts followed by its response,” which also must provide “reference to appropriate documentation.”
    • Consistent with her prior rulings on the topic (see e.g. ZV NY, Inc. v Moskowitz 44 Misc 3d 1225[A] [Sup Ct, NY County 2014), attorney affirmations in which counsel present arguments of law – sometimes referred to as “memo-affs” or “brief-adavits” or “brief-irmations” – “will not be considered by the Court.”
  • Trial practice:
    • Justice Bransten will not give parties a trial date unless and until they have attempted some form of ADR, whether privately or through the Commercial Division’s ADR Program.
    • All pre-trial submissions (briefs, witness and exhibit lists, and motions in limine, etc.) must be “both e-filed and hand delivered to the Part in hard copy.”