In expensive lawsuits involving fraud claims, the temptation of a defendant to play hide and seek with its assets can be high. To prevent this result, 
CPLR § 6201 provides a mechanism (i.e., prejudgment attachment order) to preserve such assets. However, in a recent decision from the Suffolk County Commercial Division, Justice Elizabeth H.
Fraud Claims Dismissed Based on the “As Is, Where Is, and With All Faults” Contractual Provision
Nobody likes fraud claims asserted against them. Thankfully for defendants, fraud claims are notoriously difficult to prove, and defendants often try to have these claims dismissed at the pleading stage.
An express disclaimer in a contract is often a popular avenue for litigants facing a fraud claim to move for dismissal. A recent Commercial Division
New Amendment to ComDiv Rule 3(a) Provides More Options to Litigants Seeking Alternative Dispute Resolution
In recent years, the New York court system has endorsed alternative dispute resolution (“ADR”) as a way to increase efficiency in the court system, making ADR presumptive in most civil cases. As a pioneer of efficiency, the Commercial Division has reinforced – through the adoption of multiple ADR-related rules and rule amendments – its “strong
Joint Venture Agreements: For Better or For Worse; In Profit or In Loss
Just like a bride and groom vow to join together for better or for worse, commercial parties joining together through a joint venture must make a similar promise to share in profits and losses. In a recent decision from the Suffolk County Commercial Division, Justice Elizabeth H. Emerson took a close look at the parties’
Necessity Is the Mother of Innovation: The Option of Virtual Evidentiary Hearings and Non-Jury Trials Goes from Provisional to Permanent
As we all are acutely aware, during the last 21+ months, the normally slow-to-change practice of law has been thrust into overdrive, forcing lawyers and courts to quickly pivot from a largely in-person practice to virtual.
New York courts in particular have done an incredible job expanding access to litigants online by, among other things,
Avoiding Judicial Conflicts of Interest: New ComDiv Rule 35 Will Require Corporate Disclosure Statements
Aficionados of Commercial Division practice know that the ComDiv rules originally were — and, as evidenced by an Administrative Order earlier this month, continue to be — modeled after the federal rules. Efficiency begets efficiency.
Earlier this month, on October 4, Chief Administrative Judge Lawrence K. Marks promulgated new ComDiv Rule 35, which, as of
The Dynamic Duo of Proportionality and Reasonableness: Another New Proposal From the Commercial Division Advisory Council
As we’ve mentioned time and again on this blog, since its inception in 1995, New York’s Commercial Division has continued to not only be a leader in developing and shaping commercial law, but it is also on the forefront of instituting rules with the goals of fostering litigation efficiency, cost reduction, and implementation of technology
Even as Pandemic Wanes, Remote Depositions Remain the New Normal
In March 2020, the New York State Courts and attorneys’ offices all over the state shut down as part of the public’s broad effort to slow the spread of the Coronavirus, and the legal profession quickly transitioned to remote operations. Remote team meetings, court appearances, arbitration hearings, networking events, and depositions were all borne from the necessity imposed by closed offices and social distancing.
Despite the sometimes steep learning curve associated with the remote conferencing technology and systems, remote proceedings became surprisingly effective. Lawyers who once swore that there was nothing like being in the same room as their adversary found that, in many cases, the Zoom or Teams suite works just fine. As a consequence, one need not look beyond the pages of this blog to see that for many, remote practices are here to stay. Commercial Division Rule 1 now allows attorneys to request to appear remotely, saving client costs and avoiding the unnecessary risk of infection. In February, we wrote about the Commercial Division Advisory Committee’s proposed rule authorizing and regulating the use of remote depositions. The proposed rule has received favorable comment.Continue Reading Even as Pandemic Wanes, Remote Depositions Remain the New Normal
A Wave of E-Discovery Change: The Latest Proposal from the Advisory Council
New York’s Commercial Division has continuously taken the lead as an innovative forum, proposing rule changes that are aimed at increasing efficiency and overall effectiveness of the litigation process. In the past several years, discovery challenges surrounding electronically stored information (“ESI”) have taken center stage in a majority of cases before the Commercial Division. Understanding
New York Yankees Up to Bat in the Commercial Division Against Former Minor League Affiliate
A few weeks ago, my colleague, Madeline Greenblatt, wrote a blog about a $1.75 million breach of contract action brought against Bob Dylan in the Manhattan Commercial Division. In her blog, Madeline reminded practitioners that New York courts will not consider extrinsic evidence to aid in the interpretation of an unambiguous contract, especially on