Lawyers practicing in the Commercial Division are keenly aware of issues related to attorneys’ fee awards in commercial cases. Commercial agreements commonly contain a provision awarding attorneys’ fees to a prevailing party in a manner sufficient to satisfy entitlement to an award under the contractual exception to “American Rule.” However, entitlement to a fee award
Commercial Division litigators are keenly aware of CPLR 3215’s proof requirements. We can recite in our sleep the need to submit (1) proof of service, (2) proof of default, (3) the amount due, and (4) facts constituting the claim. While the elements themselves are pretty straightforward, the nuances can be tricky – particularly relating to the facts necessary to constitute the claim. The CPLR permits the facts constituting the claim to be submitted by affidavit or the complaint itself, if it is verified. There is no express language in the CPLR suggesting that the movant is required to show prima facie entitlement to relief. But as Manhattan Commercial Division reiterated recently in Bellino v. Dormet, Inc., et al., that is exactly what is required.
Bellino stems from a business venture allegedly gone bad. Plaintiff alleges that between 2019 and 2020 he and his business partner formed Doromet, Inc. (the “Company”) to import precious metals from South America to the United States. Plaintiff alleges to have made capital contributions to the Company totaling $550,000 between August 2019 and August 2020 that were ultimately used to purchase gold that was going to be imported by supplier – defendant Garcia (“Garcia”) in compliance with the legal requirements of Brazil and the United States. Plaintiff alleges that the Company paid Garcia $1 million to purchase and import gold from Brazil, which included $500,000 of Plaintiff’s capital contribution. According to Plaintiff, the gold was seized by Brazilian authorities due to alleged non-compliance with Brazilian export requirements. Plaintiff thereafter demanded return of his $550,000 from his partner and Garcia, neither of whom complied. Continue Reading Commercial Division Reiterates That It’s Not a Rubber Stamp for CPLR 3215 Default Motions: Movant Must Set Forth Prima Facie Entitlement to Judgment
Over a beautiful, sunny weekend earlier this month (May 17-19), commercial litigators and judges from all over the State converged on Saratoga Springs and the beautiful Gideon Putnam Hotel, for the Commercial and Federal Litigation Section Spring 2024 Meeting. In addition to the receptions, dinners, golf and after-program discussions, all of which were excellent, the Spring Meeting was jam-packed with two days of substantive, thought-provoking and forward-thinking topics. The program was remarkable enough that we here at New York Commercial Division Practice thought it appropriate to report the goings-on for all that could not attend.
After a wonderful opening reception and dinner on Friday night to kick off the Meeting, including introductory remarks from ComFed Chair Anne B. Sekel, Esq.; Chair-Elect, Michael Cardello III, Esq.; and Simply Saratoga author, Carol Godette, NYSBA members in attendance were in for a treat first thing Saturday morning, when former Farrell Fritz partner and current U.S. Magistrate Judge for the Eastern District of New York, Hon. James L. Wicks; U.S. District Court Judge for the Southern District of New York, Hon. Mary Kay Vyskocil; Ralph Cater, Esq.; Moya Novella, Esq.; and Stephen Breidenbach, Esq. led a panel discussion about what AI and its platforms are, how they work (or do not work), and how AI is used by litigators in practice. The panel had attendees on the edge of their seats, demonstrating in real-time the functionality of various AI platforms performing legal tasks such as drafting extension letters, briefs, and deposition outlines, all while attempting to incorporate individual court practice rules. The panel then took up the ethical and other implications of using AI, including in regards to the duty of competence, duty of diligence, duty to communicate, duty of confidentiality, and the unauthorized practice of law. It was a great start to the Meeting. Continue Reading Happenings from the NYSBA Commercial and Federal Litigation Section Spring 2024 Meeting
As one can easily glean, we here at the New York Commercial Division Practice Blog view New York’s Commercial Division as the heartbeat of business litigation in the United States. So, we think getting your business litigation in front of the Commercial Division is a big deal. But what happens when you have a case that meets the requirements for the Commercial Division, and you are not assigned to that Part?
Generally, there are two ways to be assigned to the Commercial Division under § 202.70[d] of the New York Code of Rules and Regulation (the “Rules”). The first is for any party to file an RJI with the accompanying Commercial Division Addendum 90 days following service of the complaint. The second is by consent of the parties via a forum – selection clause in the parties’ contract.
But what if a party files an RJI before the 90-day period runs without requesting assignment or submitting a Commercial Division Addendum? The answer lies in § 202.70[e] of the Rules, which permits a party to apply via letter to the Administrative Judge within 10 days of the RJI for transfer to the Commercial Division.
But what if the request is made outside the time limits in § 202.70[d] and [e] of the Rules? Again, § 202.70[e] of the Rules permits a letter application to the Administrative Judge showing “good cause” for the delay.
While the timing provisions are relatively simple to work though, the “good cause” standard under CPLR 2004, which requires reasoning for the delay, is a bit more subjective, as a finding of good cause is within the discretion of the Administrative Judge. It is imperative, therefore, to point the Administrative Judge to applications with analogous issues or facts to support your cause. As for where to find those decisions, never fear, the Commercial Division itself provides some help in this regard.
On the New York Courts webpage, the Commercial Division has a page titled Administrative Judge on Transfer Applications. That page provides a list of all the Administrative Judge’s decisions on transfer applications from prior to the effective date of the Commercial Division Rules on January 17, 2006, to the present.
For example, what if a timely request for Commercial Division assignment was not filed, but you have a related case pending before a Commercial Division Judge? The Administrative Order in ABG HMX LLC v. Alba Longa Concepts LLC provides precedent for the Administrative Judge granting a transfer for “good cause”, in this context. And what if a request for Commercial Division assignment is rejected by the clerk’s office but was only a few days late? Curtis v. Merrill Lynch, et al provides precedent for the Administrative Judge granting a transfer if the request was “untimely albeit only by a matter of days.” But waiting years before filing a transfer application is not wise. In ABL Advisor LLC, et al. v. Ian S. Peck, et al, the Administrative Judge denied a transfer application made two years into the litigation, finding that the “rules are designed to ensure that appropriate cases are assigned to the Commercial Division at the inception of the case, not two years into the litigation.” Finally, what if you have a complex commercial case but one of the issues is arguably excluded from review by the Commercial Division? In City of New York v. FC 42nd Street Associates, L.P., the Administrative Judge granted transfer of a generally excluded real property case that dealt with the determination of fair market value in relation to rental income, agreeing that while the case “is not an action for the payment of rent only, … the complaint raises complex questions of commercial and arbitration law and belongs in the Commercial Division.” And there are many more helpful examples for litigators on the Commercial Division’s “Transfer Application” page.
In short, the next time you find yourself in a position where leave to the Administrative Judge is required for assignment to the Commercial Division, remember the Commercial Division and its readily available resources has you covered. Continue Reading Help, I Need to Get My Case into the Commercial Division!! Transfer and Determinations by the Administrative Judge