When seeking a default judgment, parties often assume that an unanswered complaint puts them in the driver’s seat for a quick and early victory. But as practitioners in the Commercial Division are well aware, courts retain discretion to deny a motion for default judgment if the record raises questions about service or if the defendant
I have a soft spot for civil RICO: treble damages, enterprise allegations, the chance to elevate ordinary fraud into something operatic. But, as many of us have learned, civil RICO is not meant to transform ordinary commercial disputes into racketeering cases. Courts routinely dismiss such claims when plaintiffs fail to meet the statute’s strict pleading
In settlement agreements, a valid release serves as a critical mechanism for resolving disputes between parties. By its terms, a release is intended to extinguish all claims, both those that are known and unknown to the parties at the time of execution of the agreement. When parties are represented by counsel and agree to a
A recent decision from Monroe County Commercial Division Justice Daniel J. Doyle in Stuver v Greenlight Parent, L.P. demonstrates that arbitration clauses cannot be used as an automatic “get-out-of-court-free” card at the pre-answer, motion-to-dismiss stage. While arbitration clauses are enforceable contractual tools, courts still have the authority to determine whether a dispute falls within the
As readers of this blog are well aware, we here at New York Commercial Division Practice take great pride in posting about proposed or amended rules of practice in the Commercial Division. Knowledge of the local rules is particularly relevant when filing documents. One recent local rule change that may catch our readers’ eyes is Nassau County Supreme Court’s new procedures for filing an order to show cause .
Litigants generally have two options when bringing a motion before a court in New York State: (i) a motion on notice; or (ii) a motion brought by order to show cause. An order to show cause is typically used for emergency applications or when a litigant is seeking some form of immediate relief, such as a stay or temporary restraining order. As part of an application for an order to show cause, a party’s attorney must submit an affirmation under 22 NYCRR § 202.7(f), which provides that the opposing party has been given notice of the date, place, and time that the application will be filed with the court in order to appear in response to the application. This is where things get interesting.Continue Reading A Good Lawyer Knows the Law; A Great Lawyer Also Knows the Local Rules
Under CPLR 3213, a plaintiff can move for summary judgment in lieu of complaint which, under the right circumstances, serves as a useful tool to avoid extensive litigation and obtain speedy relief. Recently, in JADR Consulting Group Pty Ltd. v Ault Alliance, Inc., some loan sharks attempted to take advantage of the device’s efficiency.
Although discretionary, it is well-known among commercial practitioners that the Commercial Division justices generally like a Rule 19-a statement of material facts included with the submission of a summary judgment motion. When responding to a Rule 19-a statement, the responding party should be thinking a couple moves ahead. The ultimate goal should be to make
As many practitioners are aware, the litigation process in New York often feels like a tortoise race, with many cases taking years to resolve. Section 3213 of the CPLR (“Summary Judgment in Lieu of Complaint”) is a bit of an outlier in New York practice, as it provides a mechanism to streamline cases without bearing
As my colleague, Matt Donovan, recently blogged, it is essential for litigants to “play[] nice in the litigation sandbox” or risk facing the ire of the Justices in the Commercial Division. Many litigants might think they are playing “nicely” by asserting “good cause” in their arguments. But what does it actually mean to have
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