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
A recent decision from the First Department reminds us that New York courts are not sympathetic to duress claims when the alleged acts or threatened acts fall within the ambit of the defendant’s rights under a valid agreement.
In Zhang Chang v Phillips Auctioneers LLC, the First Department affirmed Manhattan Commercial Division Justice Jennifer
When a party to a contract repudiates, the non-repudiating party is faced with two options: (1) treat the repudiation as an anticipatory breach, terminate the contract and seek damages; or (2) continue to treat the contract as valid and await the time for performance before bringing suit. In a recent decision from the Suffolk County
In a recent Commercial Division case, Justice Elizabeth H. Emerson was asked to determine whether certain parties were bound by an arbitration clause and whether that arbitration clause applied to a particular controversy—two questions typically determined by the court. Then why did Justice Emerson defer these questions to the arbitrator? The answer requires a close
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.”Continue Reading Reminder to Practitioners: Gender Neutral Language Required
In one of my first posts, entitled Restrictive Covenants: The Importance of Understanding Their Contractual Limits, I wrote about a First Department decision upholding a portion of Justice Andrea Masley’s Order enjoining a defendant modeling agent and agency from unfairly competing, disclosing, or misappropriating the plaintiff’s confidential information and interfering with the plaintiff’s contractual
A cause of action accrues, triggering the commencement of the statute of limitations period, when “all of the factual circumstances necessary to establish a right of action have occurred, so that the plaintiff would be entitled to relief” (Gaidon v. Guardian Life Ins. Co. of Am.). The “continuing wrong” doctrine is an exception
Under the Commercial Division Rules, a court may seal court records “upon a written finding of good cause.”[1] So, what led Justice Robert R. Reed to deny two unopposed motions to seal in a recent decision in the New York Commercial Division? Lack of specificity.
The CPLR 3123 notice to admit can be a useful device in litigation. Its primary purpose is to expedite a trial by eliminating the necessity of proving a “readily admittable fact” or matter not in dispute. But, as efficient as it sounds, the notice to admit is a limited device, and may only be used
The New York Commercial Division was created in 1993 “to test whether it would be possible, by concentrating on commercial litigation, to improve the efficiency with which such matters were addressed by the court and, at the same time, to enhance the quality of judicial treatment of those cases.” By implementing rules and procedures developed with efficiency in mind and after careful consultation with Judges and practitioners alike, the Commercial Division has become a resounding success; it is one of the most efficient and effective forums in the world for the litigation of complex civil disputes.
It should therefore come as no surprise that other New York courts have taken notice of the innovative rule changes contributing to the success of the Commercial Division. As Chief Administrative Judge Marks observes: “through the work of the Commercial Division Advisory Council – a committee of commercial practitioners, corporate in-house counsel and jurists devoted to the Division’ s excellence – the Commercial Division has functioned as an incubator, becoming a recognized leader in court system innovation, and demonstrating an unparalleled creativity and flexibility in development of rules and practices.”
Now, by Administrative Order effective February 1, 2021, the Uniform Civil Rules for the Supreme Court (the “Uniform Rules”) will incorporate, in whole or in part, nearly 30 Commercial Division Rules. Some of these changes were foreshadowed by my colleague Paige Bartholomew in 2018 when the Unified Court System’s Advisory Committee on Civil Practice requested public comment on whether to adopt nine of the Commercial Division’s Rules.
Continue Reading Innovation Becomes the Norm: Commercial Division Rules Shape Revised Uniform Rules for the Supreme Court and County Court