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:
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
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.
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
Did you know that the New York State United Court System publishes an annual report covering the advances, challenges, and achievements in and by our New York State courts over the past year? If you did not, now is the time to head over to the NYCourts website and browse the recently released 45th Annual
As any practitioner litigating a case before the Commercial Division knows, and as we have mentioned time and again on this blog, it is critical to know the Part Rules of the particular judge assigned to your case. But getting to know your judge – including the judge’s individual preferences and style – may be
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