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As readers of this blog are well aware, we here at New York Commercial Division Practice take great pride in posting about proposed or amended rules of practice in the Commercial Division. Knowledge of the local rules is particularly relevant when filing documents. One recent local rule change that may catch our readers’ eyes is Nassau County Supreme Court’s new procedures for filing an order to show cause .

Litigants generally have two options when bringing a motion before a court in New York State: (i) a motion on notice; or (ii) a motion brought by order to show cause. An order to show cause is typically used for emergency applications or when a litigant is seeking some form of immediate relief, such as a stay or temporary restraining order. As part of an application for an order to show cause, a party’s attorney must submit an affirmation under 22 NYCRR § 202.7(f), which provides that the opposing party has been given notice of the date, place, and time that the application will be filed with the court in order to appear in response to the application. This is where things get interesting.

Continue Reading A Good Lawyer Knows the Law; A Great Lawyer Also Knows the Local Rules
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Business Corporation Law § 619 (“BCL”) gives shareholders an “exclusive method . . . to test the validity of an election of a director.” Specifically, BCL § 619 states:

“Upon the petition of any shareholder aggrieved by an election, and upon notice to the persons declared elected thereat, the corporation and such other persons as the court may direct, the supreme court at a special term held within the judicial district where the office of the corporation is located shall forthwith hear the proofs and allegations of the parties, and confirm the election, order a new election, or take such other action as justice may require”

But under what circumstances can a court reverse an election? And what factors does a court consider? The case of Jazwinski v Justice Ct. Mut. Hous. Coop. is illustrative on these questions.

Continue Reading It’s Time to CO-OPerate: Commercial Division Refuses to Overturn Election of Board of Directors
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On March 4, 2025, the New York County Lawyers Association (“NYCLA”) celebrated a significant milestone during its Annual Gala held at The Pierre Hotel in Manhattan. The event commemorated the 30th Anniversary of the Commercial Division of the New York State Supreme Court.

At the Gala, the NYCLA presented its highest honor – the William Nelson Cromwell Award, which was first established in 1964. This prestigious award is conferred upon individuals who have demonstrated exceptional commitment to public service. This award is named in honor of William Nelson Cromwell, one of NYCLA’s earliest and most esteemed leaders, for “unselfish service to the profession and the community.”

At the Gala, the award was presented to the Commercial Division Justices in New York State. Among those present to accept the honor were Commercial Division Justices from across New York State, including Justice Boddie of the Brooklyn Commercial Division, Justice Driscoll of the Nassau County Commercial Division, Justices Chan, Masley, and Reed of the Manhattan Commercial Division, and Justice Jamieson of the Westchester County Commercial Division.

Continue Reading A Court that Means Business: Three Decades of the New York Commercial Division

In a recent decision, the New York County Commercial Division reaffirmed the high bar that parties must meet when attempting to seal court documents in business disputes. In Linkable Networks, Inc. v. Mastercard Inc., the court ruled that Mastercard, despite having the consent of the plaintiff, was not entitled to an order sealing documents referenced in prior motion practice and produced in discovery. This ruling is another reminder of the high bar courts have set to seal documents, as discussed by my colleague Serene Carino in her blog post “Signed, Seal, Delivered.” It also highlights the balance courts strike between protecting sensitive business information and upholding the public’s right to access judicial records.

Under Section 216.1(a) of the Uniform Rules for Trial Courts, a court may seal or redact court records only upon a written finding of “good cause.” The rule stipulates that such an order must specify the grounds for sealing and take into account both the interests of the parties involved and the public’s right to transparency. In the business context, courts are more willing to seal records when trade secrets or competitive advantages are at risk.

Continue Reading Commercial Division Clarifies Standards for Sealing Court Records in Business Disputes
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Oleksandr Sushko, Unsplash

Under CPLR 3213, a plaintiff can move for summary judgment in lieu of complaint which, under the right circumstances, serves as a useful tool to avoid extensive litigation and obtain speedy relief. Recently, in JADR Consulting Group Pty Ltd. v Ault Alliance, Inc., some loan sharks attempted to take advantage of the device’s efficiency. Manhattan Commercial Division Justice Margaret A. Chan heard the legendary jaws theme music but was not deterred, instead denying summary judgment and granting the defendant’s cross-motion to dismiss.

Background:

In JADR, the plaintiff and the defendant entered into a promissory note in which the defendant promised to repay a principal of $2,756,245.10. However, plaintiff conceded that the defendant only received $2,249,996. The interest rate on the note was set at 16% per annum, and the default rate was set at 24% per annum or the maximum permitted by law.

That note was amended twice. First, a new section was added to include that in the event of a default, the principal would increase by $1,000,000. Second, the maturity date of the note was extended and included that any default would, at the plaintiff’s discretion, extend the maturity date by 30 days, but also add $250,000 to the principal to be repaid. Further, both amendments increased the principal amount despite the fact that the defendant never received additional consideration.

Continue Reading You’re Gonna Need a Bigger Boat: Criminal Usury Statutes Prevent Loan Sharks
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Regular visitors to this blog no doubt are aware that the rules of practice for the Commercial Division are centered on innovation, efficiency, cost-effectiveness, and predictability.  This includes the rules governing trial and trial preparation (Rules 25-33), which are important enough to merit their own, separate Preamble. 

As it stands, the Preamble to Rules 25-33 explains that “[t]hese rules emphasize the importance of pre-trial preparation and remind the practitioner that such preparation is an essential element of successfully . . . conducting a complex commercial  . . . trial [and] identify a series of key items that must be addressed or completed before commencing a trial in the Commercial Division” (emphasis added).  The Preamble goes on to list the items that counsel are obligated to address in advance, including:

  • “accurately estimating the length of the trial so that the court, counsel and parties can properly allocate their time”;
  • “preparing and communicating to the court motions in limine in advance of the trial date”;
  • “reviewing, assembling, and pre-marking exhibits”;
  • “addressing issues that may arise in connection with the use of deposition testimony at trial”;
  • “agreeing on a schedule for witnesses and the manner in which each witness will testify (including giving consideration to direct testimony by affidavit in a non-jury trial)”; and
  • “preparing and negotiating jury instructions and verdict sheets.”
Continue Reading Preparation Is Everything:  Commercial Division Advisory Council Proposes New Model Pre-Trial Order for Trials in the Commercial Division
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Frequent readers of this blog know that we are not shy in acknowledging the Commercial Division’s status as the leading forum for resolving complex business disputes. This reputation can be, in part, largely attributed to the ongoing efforts of the Commercial Division Advisory Council, which continually assesses and suggests practical, significant modifications to the Commercial Division Rules. These changes aim to maintain the utmost level of efficiency and reinforce the Commercial Division’s standing as a global leader in resolving commercial disputes.

The Advisory Council has recently proposed a significant rule change: an amendment to Commercial Division Rule 11 to mandate immediate exchange of specified categories of information at the outset of any litigation in the Commercial Division, eliminating the need for formal discovery requests. This proposal seeks to reduce some of the costs, delays, and complications associated with discovery, and to allow parties to “competently assess the risks of trial and the benefits of potential settlement in the early stage of the litigation.”

The proposal recommends a more standardized disclosure system for all Commercial Division cases, replacing the existing practice in which individual judges often establish their own “partial-disclosure regimes” to facilitate discovery. The Advisory Council believes that having a Commercial Division rule tailored to the discovery needs of complex commercial litigation will create a “more uniform and consistent approach, benefiting counsel and preventing the spread of individual judges’ idiosyncratic practices.”

Continue Reading Getting Ahead of Discovery: Can Amended Rule 11 Streamline Commercial Litigation?
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Although discretionary, it is well-known among commercial practitioners that the Commercial Division justices generally like a Rule 19-a statement of material facts included with the submission of a summary judgment motion. When responding to a Rule 19-a statement, the responding party should be thinking a couple moves ahead. The ultimate goal should be to make things easier for the judge to accept clearly stated facts that cannot be contested before the commencement of a trial. The last thing that you want to happen is to be caught in a Steve Urkel “did i do that ” moment in failing to dispute a contested fact. A recent decision issued by Manhattan Commercial Division Justice Robert R. Reed sheds light on the consequences of that very scenario.

Background and Analysis:

Perella Weinberg Partners LLC et al. v Michael A. Kramer et al., involved a breach-of-contract dispute related to the defendants’ departure from the plaintiffs’ financial-advisory firm. During the course of the litigation, both parties moved for summary judgment on their respective claims and counterclaims. As part of their submissions, the parties submitted and responded to their respective Rule 19-a statements.

Continue Reading A Cautious Reminder When Responding to a Rule 19-a Statement of Material Facts on a Motion for Summary Judgment
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Adam Michael Szuscik, Unsplash

As recently highlighted by my colleagues, the Commercial Division Advisory Council (“Advisory Council”) has been hard at work striving to implement and amend certain rules and regulations to enhance practice in the Commercial Division.  One recent proposal that may catch practitioners’ eyes is the potential addition of Commercial Division Rule 23:  a rule designed to govern the filing of amicus curiae briefs.

Amicus curiae or “friend of the court” briefs are used by non-parties, usually in federal appellate cases, who want to assist a court on issues in which they may have an interest.  Typically, amicus curiae briefs are allowed if they assist a court in analyzing an issue or argument that a party to the action is not able to fully and adequately present (see 22 NYCRR § 500.23 [a] [4]).

But amicus curiae brief filings in a state trial court, you say?  Yes, you read that right.  Despite the scarcity of such filings, the Advisory Council’s proposal attempts to introduce Rule 23 “given [the ComDiv’s] docket of sophisticated and often far-reaching commercial and business litigation.”

Continue Reading You Got a Friend in Me: Commercial Division Seeks to Adopt New Rule Governing the Filing of Amicus Curiae Briefs
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Amid the hustle and bustle of the holiday season, and gearing up for the new year, the Commercial Division Advisory Council (the “Advisory Council”) was hard at work in proposing new rule changes. On December 26, 2024, the New York State Office of Court Administration issued a request seeking public commentary on a proposal, recommended by the Advisory Council, to amend Commercial Division Rules Section 22 NYCRR §202.70 (c) concerning non-commercial cases.

Section 22 NYCRR §202.70 (c)(5), in particular, provides that courts within the Commercial Division are not permitted to hear proceedings to enforce judgments, even where the required monetary threshold is met. Some Commercial Division judges have interpreted this rule as a bar to the enforcement of judgments, even if such judgments were obtained in the Commercial Division (see e.g., Gibson, Dunn & Crutcher LLP v World Class Capital Group LLC, Index No. 650318/2020 [Sup Ct, NY County Nov. 20, 2020]; J. Remora Maintenance LLC v Efromovich, 2018 WL 4963419, at *2 [Sup Ct, NY County Oct. 15, 2018]).

Continue Reading New Year, New (Proposed) Rules: Updates in the Commercial Division