As readers of this blog are well aware, we here at New York Commercial Division Practice repeatedly discuss decisions by the Commercial Division emphasizing strict adherence to the Commercial Division Rules. Nowhere is that clearer, and more common, than Commercial Division Rules 14 and 24, which require parties to make a good-faith effort to
The Commercial Division Advisory Council (“CDAC”) has recommended a new rule that would introduce the use of Virtual Evidence Courtrooms in the Commercial Division. The proposed Rule 25-a is now under review by the Administrative Board of the Courts (the “Board”). If adopted, the rule would mark another step towards the Commercial Division’s ongoing efforts
When litigants pursue claims against foreign defendants, the question of how to serve them is more than procedural – it’s jurisdictional. As many readers of this blog are aware, CPLR 308 authorizes alternate service methods when traditional methods are shown to be impracticable. A recent decision from Manhattan Commercial Division Justice Margaret A. Chan confirms
Under Rule 37 of the Rules of the Commercial Division, the court may order a remote deposition upon (1) consent of the parties, or upon (2) a motion showing good cause.
In spite of the increasing reliance on remote depositions in the wake of the COVID-19 pandemic, a recent decision from Justice Robert R.
As readers of this blog are aware, the most contentious battles during a lawsuit are fought during discovery. Among the various discovery battles is scheduling depositions. In many cases, parties tend to reschedule depositions, which typically drags out the length of a litigation. The worst decision a party can make is failing to appear for a deposition. As a recent decision from Manhattan Commercial Division Justice Margaret Chan shows, New York courts will dispose of a case (i.e., striking of a pleading) for a party’s repeated failure to appear for a scheduled deposition.
In O’Rourke v Hammerstein Ballroom, Defendants moved separately, pursuant to CPLR §§ 3124 and 3126, requesting several forms of discovery sanctions against Plaintiff, including (i) dismissal and/or striking of the complaint; (ii) precluding Plaintiff from offering testimony or evidence in support of his claims; and (iii) monetary sanctions, for Plaintiff’s repeated failure to appear at court-ordered depositions. Specifically, between November 19, 2021, to January 24, 2024, the Court held eight discovery conferences with the parties and scheduled Plaintiff’s deposition each time. However, Plaintiff failed to appear for each of his eight separate court-ordered depositions.Continue Reading A Deposition Wake Up Call: Commercial Division Strikes Pleading for Repeated Failure to Appear for a Deposition
Sections 3102 and 3108 of the CPLR outline methods for conducting discovery, including discovery “outside” or “without” the state. But what about demands for discovery and inspection of documents located outside the country? A recent decision from Justice Robert Reed of the Manhattan Commercial Division in Bagatelle Little W. 12th LLC v. JEC II, LLC
A recent decision from the Manhattan Commercial Division reminds us of the ramifications of non-compliance with discovery obligations. Although in my experience courts (especially the Commercial Division) typically do not like to get involved in discovery disputes (see, e.g., ComDiv Rule 14 requiring parties to meet and confer to resolve all discovery disputes)
Arbitration can be an effective alternative for parties seeking to avoid drawn-out and costly litigation. As a result, it has become common practice for parties to negotiate arbitration clauses into their agreements. However, parties consenting to arbitration should be prepared to abide by an arbitrator’s discretion, especially regarding discovery. If not, parties might be left
The burden of establishing personal jurisdiction over a defendant rests with the plaintiff. Service of process is a necessary component of jurisdiction, and it is not complete until proof of service is filed. Ordinarily, defective service of process is not a jurisdictional defect and does not warrant dismissal. But when it comes to “affix and mail” service under CPLR § 308(4), the statutory requirement of “due diligence” must be strictly observed, otherwise dismissal may result. A recent decision from Manhattan Commercial Division Justice Robert Reed in Arena Special Opportunities Fund, LLC v McDermott discusses just how much diligence is required.Continue Reading If the Service Was Poor, You’ll Have to Do More – How Much Diligence Is Due for Affix and Mail Service?