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

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

One of the ongoing goals of the New York State Office of Court Administration (“OCA”) is to periodically update and refine the jurisdictional criteria for the Commercial Division to ensure that it exclusively handles complex commercial matters. As part of this effort, OCA has proposed an important change aimed at establishing a monetary threshold for cases seeking equitable or declaratory relief.

Currently, a case that is presumptively considered “commercial” and seeks equitable or declaratory relief is not required to meet any monetary threshold. However, on September 20, 2024, the OCA issued a Request for Public Comment on a proposal to amend 22 NYCRR § 202.70 (a) and (b), based on recommendations from the Commercial Division Advisory Council (“CDAC”). These proposed amendments would introduce a monetary threshold specifically for cases seeking equitable or declaratory relief within the Commercial Division. While the change may seem small, its implications for practitioners and litigants would be substantial.Continue Reading The Commercial Division Proposes a Monetary Threshold for Equitable and Declaratory Relief: Implications and Insights

Under CPLR §§ 3111 and 3122(d), “[t]he reasonable production expenses of a non-party witness shall be defrayed by the party seeking discovery.” The Commercial Division Rules at Appendix A (“Guidelines for the Discovery of ESI”) define “reasonable production expenses” to include:

Continue Reading The Cost of Withholding ESI: First Department Sets Limits on Non-Party Recovery of ESI Production Costs
  1. Reasonable fees charged by outside counsel and e-discovery consultants;
  2. Reasonable costs incurred in connection with the identification, preservation, collection, processing, hosting, use of advanced analytical software applications and other technologies, review for relevance and privilege, preparation of a privilege log (to the extent one is requested), and production;
  3. Reasonable costs associated with disruption to the non-party’s normal business operations, provided such costs are quantifiable and warranted by the facts and circumstances; and
  4. Other costs reasonably identified by the non-party.
Continue Reading The Cost of Withholding ESI: First Department Sets Limits on Non-Party Recovery of ESI Production Costs

I think it’s fair to say that Commercial Division judges have little time for discovery disputes.  If one peruses the individual practice rules of many of the ComDiv judges, one typically finds language all but prohibiting discovery motions.  And ComDiv Rule 14, which itself provides that “[d]iscovery disputes are preferred to be resolved through court conference as opposed to motion practice,” expressly gives the judges the discretion to do so (“If the court’s Part Rules address discovery disputes, those Part Rules will govern discovery disputes in a pending case”).  If a particular ComDiv judge’s individual rules are silent on the matter, then the default rule in Rule 14 applies.  In which case, counsel are restricted to (i) making a good-faith attempt to resolve the dispute(s) amongst themselves; and (ii) if unsuccessful on their own, submitting competing letters outlining their respective positions and asking for the opportunity to conference the dispute(s) with the court. 

Commercial Division judges also have little time for attorney gamesmanship.  Again, the ComDiv Rules expressly support this sentiment, as one need look no further than the Preamble to the Rules, which was amended some five years ago to insist on, among other things, “that the practicing bar be held rigorously to a standard of commitment and professionalism of the highest caliber.”  This includes conduct at depositions. Continue Reading Playing Nice in the Litigation Sandbox

My colleague Matt Donovan recently wrote about the requirements of Commercial Division Rule 13(c) and highlighted certain decisions in which expert reports were precluded for non-compliance. This week’s post looks at a decision by newly-appointed Manhattan Commercial Division Justice Nancy M. Bannon, who denied a motion to preclude expert reports despite non-compliance with the rule. In the decision, Justice Bannon sheds light on the boundary between admissible and impermissible expert opinions, particularly when reports encroach on the court’s authority to opine on legal conclusions, while also imposing specific limitations on the expert’s testimony.Continue Reading Court Permits Expert Reports with Disclosure Gaps but Recognizes Limits on Trial Testimony

It’s been a minute since our last installment of our “Check the Rules” series here on New York Commercial Division Practice, in which we occasionally highlight decisions from Commercial Division judges holding litigants and practitioners to account for noncompliance with either the Rules of the Commercial Division or the individual practice rules

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. 

Background: 

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

On February 14, 2024, Chief Administrative Judge Joseph Zayas signed an Administrative Order amending Section 202.70(b)(1) of the Uniform Rules for the Supreme and County Courts (Rules of the Commercial Division of the Supreme Court), and adding a new Rule 9-b to Section 202.70(g). But rather than vest the Commercial Division with new powers

Commercial Division Rule 11-f establishes that a party may serve a notice or subpoena on any legal or commercial entity. Upon receiving this notice, the responding party must then designate and produce a corporate representative for the deposition, who is prepared to testify about information known or reasonably available to the entity concerning topics listed in the deposition notice. While a corporate representative deposition may serve as a great discovery tool, it may also serve as a dangerous trap. In a recent decision from the Manhattan Commercial Division, Justice Andrea Masley reminds us that parties who attempt to depose an additional corporate representative of the same entity are fighting a losing battle.Continue Reading Commercial Division Says “No Chance” on “Second Chance” Deposition of a Corporate Representative