Commercial Division Rule 11-b governs a party’s obligation to produce a log of documents withheld on the basis of privilege. Enacted in 2014, Rule 11-b substantially streamlines the privilege log process by encouraging parties, “where appropriate,” to exchange categorical privilege logs, rather than document-by-document logs. Rule 11-b instructs the parties to meet-and-confer over the issue
Peter J. Sluka
Proposed Commercial Division Rule Change Gives Remote Proceedings Even More Staying Power
It is no secret by now that remote proceedings are here to stay. Driven at first by the safety protocols related to the COVID-19 pandemic, remote proceedings have outlived those protocols, and they remain the preferred forum for many parties and Justices. The recent pages of this blog are filled with caselaw and proposed rule…
Counsel May Not Evade Word Limitations by Incorporating Affidavits in Place of a Statement of Facts
Justice Cohen reminds counsel that the Commercial Division word limits exist to keep arguments concise, not test whether lawyers can “respectfully refer the Court to” or “incorporate herein” other filings into their memoranda. …
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Updates to Commercial Division Rules Concerning Discovery of ESI
On March 7, 2022, Chief Administrative Judge Lawrence K. Marks signed administrative order amending the commercial division rules to modernize and streamline the rules concerning ESI. …
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Limitations on the Rights of Minority Owners in Closely-Held Businesses
Despite all the statutory and common law protections, minority owners remain, in many ways, subject to the whim of the majority. Those considering investment in a closely-held business, negotiating an owners’ agreement, or contemplating litigation are wise to consider the impact of certain key limitations.
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The Rights of Minority Owners in Closely-Held Businesses
The pages of this blog are filled with cases pitting a minority owner of a closely-held business—most often a corporation or an LLC—against the majority. Books and records proceedings, derivative actions brought on behalf of the company, bids for dissolution, and cases seeking to enforce the terms of the owners’ agreement,…
Even as Pandemic Wanes, Remote Depositions Remain the New Normal
In March 2020, the New York State Courts and attorneys’ offices all over the state shut down as part of the public’s broad effort to slow the spread of the Coronavirus, and the legal profession quickly transitioned to remote operations. Remote team meetings, court appearances, arbitration hearings, networking events, and depositions were all borne from the necessity imposed by closed offices and social distancing.
Despite the sometimes steep learning curve associated with the remote conferencing technology and systems, remote proceedings became surprisingly effective. Lawyers who once swore that there was nothing like being in the same room as their adversary found that, in many cases, the Zoom or Teams suite works just fine. As a consequence, one need not look beyond the pages of this blog to see that for many, remote practices are here to stay. Commercial Division Rule 1 now allows attorneys to request to appear remotely, saving client costs and avoiding the unnecessary risk of infection. In February, we wrote about the Commercial Division Advisory Committee’s proposed rule authorizing and regulating the use of remote depositions. The proposed rule has received favorable comment.…
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Reminder to Practitioners: Gender Neutral Language Required
Commercial Division justices have been trailblazers in the bench’s efforts to improve the diversity and inclusiveness of the attorneys appearing before them. For example, many Commercial Division justices include in their individual rules provisions specifying that oral argument is more likely to be granted in cases where women or attorneys from historically underrepresented groups have a speaking role. Justice Jamieson of the Westchester Commercial Division recently emphasized to members of the New York State Bar Association at the Association’s Spring Meeting that she often insists on hearing from the women or diverse attorneys present, posing questions directly to them—sometimes to the chagrin of the “lead “ attorneys—during conferences and arguments.
These and other efforts of the Commercial Division justices have greatly contributed to the substantial improvement of the courts and the legal profession in its inclusion of women and attorneys from historically underrepresented backgrounds. A recent survey published by the New York State Judicial Committee on Women in the Courts, however, found that “there still remains a significant strain of bias against female lawyers, litigants, and witnesses that adversely impacts the fairness of their treatment in the judicial process which must be vigorously addressed.”…
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Can You Assign Your Rights Under an Insurance Contract that Prohibits Assignment? Only for Prior, Fixed Losses
Parties to a contract generally can include in their agreement a provision preventing assignment of the agreement’s rights and remedies without the consent of both parties. Because a party’s assignment of rights under a contract to a third party may have serious implications for both sides in the performance of that agreement, anti-assignment clauses protect the contracting parties by ensuring that no transfer of the agreement’s rights occurs without the consent of all involved. Dance with the date you brought. And absent fraud, unconscionability, or some other reason to invalidate the contract, courts generally enforce those anti-assignment clauses.
In the insurance context, however, the enforcement of anti-assignment clauses is more complicated. Because insurers—like any contractual party—have a legitimate interest in protecting themselves from insureds’ assignment of the insurance agreement to a different, perhaps more risky party, anti-assignment clauses in insurance agreements are enforceable against assignments that occur prior to a covered loss. Arrowood Indem. Co. v. Atlantic Mut. Ins. Co., 96 AD3d 693, 694 [1st Dept 2012]. But in circumstances where the assignment occurs after the covered loss, New York courts are more critical of anti-assignment clauses. In those circumstances, courts reason, there is no increased risk to the insured; the loss already occurred, and the only thing that changes as a result of the assignment is who the insurer will need to pay for that loss.
In Certain Underwriters At Lloyd’s, London v AT&T, Corp., 2021 N.Y. Slip Op. 31740[U], a recent decision by New York Commercial Division Justice Cohen, the Court explores the exceptions to the general rules regarding anti-assignment clauses in insurance policies. Ultimately, the case underscores the difficulties insurers face in disclaiming coverage by enforcement of an anti-assignment clause in the policy.…
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General Statement of Indebtedness is Sufficient to Restart Statute of Limitations Despite Ambiguities
The statute of limitations to recover on a breach of contract is six years. Parties can extend that limitations periods by agreement, and New York General Obligations Law 17-101 governs the form of such agreements. It provides that, “[a]n acknowledgment or promise contained in a writing signed by the party to be charged thereby is the only competent evidence of a new or continuing contract whereby to take an action out of the operation of the provisions of limitations of time for commencing actions under the civil practice law and rules. . . ” Per GOL 17-101, only signed writings acknowledging the indebtedness and promising to pay are sufficient to extend the statute of limitations.
In considering whether a writing satisfies GOL 17-101 and extends a statute of limitations, Courts require three elements: Signature, Content, and Delivery.
First, the acknowledgement must be “signed by the party to be charged thereby.” See 20 Plaza Hous. Corp. v. 20 Plaza E. Realty, 950 N.Y.S.2d 871, 874 (Sup. Ct. N.Y. Cty. Aug. 30, 2012) (Section 17-101 inapplicable because acknowledgment was “not signed by defendant”).
Second, the acknowledgment must convey “an intention to pay Plaintiff’s debt.” See Knoll v. Datek Sec. Corp., 2 A.D.3d 594, 595 (2d Dep’t 2003) (“[T]he critical determination is whether the acknowledgment imports an intention to pay.”). If the writing is at all inconsistent with an unequivocal intention to repay the debt, the writing fails the requirements of GOL 17-101.
Third, the acknowledgment “must have been communicated to the plaintiff or someone acting on his behalf, or intended to influence the plaintiff’s conduct.” See Lynford v. Williams, 34 A.D.3d 761, 763 (2d Dep’t 2006) (Section 17-101 inapplicable where “plaintiff did not learn of the [purported acknowledgments] until after he commenced this action”).
In part because GOL 17-101 was intended to limit the instances in which an acknowledgment revives a cause of action, Courts strictly enforce each of the three requirements. A writing failing any of the Signature, Content, or Delivery requirements is insufficient to restart the statute of limitations. While the requirements of GOL 17-101 are strictly enforced, not every ambiguity in the acknowledgment will defeat its enforcement. Recently, in Hawk Mtn. LLC v. RAM Capital Group LLC, 2021 NY Slip Op. 01349, the First Department held that an acknowledgement was sufficient to satisfy GOL 17-101 and restart the statute of limitations, despite its failure to specifically refer to the debt and inconsistencies between the acknowledgment and the underling note.…
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