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 changes underscoring the reality that virtual proceedings will remain an integral part of the practice of law for the foreseeable future (see this post regarding Commercial Division Rule 1 and requests to appear remotely, or this post concerning remote depositions).

On September 23, 2022, the Office of Court Administration sought public comment on a proposal by the Commercial Division Advisory Council (“CADC”) to amend Commercial Division Rule 36 to expressly authorize courts to order virtual evidentiary hearings and bench trials without the consent of the parties, upon a finding of good cause.

Rule 36, titled: Virtual Evidentiary Hearing or Non-jury Trial, currently provides that, if there is appropriate videoconferencing technology, the court “may, with the consent of the parties, conduct an evidentiary hearing or a non-jury trial utilizing video technology.”  The proposed amendment would clarify that the court may “with the consent of the parties, or upon a motion showing good cause, or upon the court’s own motion, conduct an evidentiary hearing or non-jury trial utilizing video technology.” 

This proposed change follows a similar change to Commercial Division Rule 37.  As discussed in this post, new Commercial Division Rule 37 provides that the courts may “upon the consent of the parties or upon a motion showing good cause, order oral depositions by remote electronic means.”  If the court can order that depositions can be remote, why can’t it order the same for evidentiary hearings and bench trials? 

The CDAC notes that the proposed amendment simply clarifies the authority that the courts already have.  Relying mostly on Judiciary law § 2-b(3), which empowers courts with the authority to “devise and make new process and forms of proceedings, necessary to carry into effect the powers and jurisdiction possessed by it,” several courts have concluded that even without amendment to the Commercial Division Rules, courts have the authority to order remote proceedings over the objection of a party (see, e.g., Quattro Parent LLC v Rakib, 2022 N.Y. Slip Op. 30190[U], 3 [NY Sup Ct, NY Co 2022] [Masley, J.]; Wyona Apartments LLC v Ramirez, 70 Misc 3d 591 [Civ Ct, Kings Co 2020]).

The more interesting portion of the proposal lies in the CADC’s proposed addition of subsection (d), which provides:

In connection with any opposed motion [to proceed with a virtual hearing or non-jury trial], the Court shall determine the existence of “good cause” by considering at least the following factors:

(1) the overall efficiency of conducting a virtual proceeding, including but not limited to consideration of the convenience to all parties involved, the time and costs of travel by counsel, litigants, and witnesses to the location of the trial or hearing, and avoiding undue delay in case management and resolution;

(2) the safety of the parties, counsel, and the witnesses, including whether counsel, the litigants, and the witnesses may safely convene in one location for the trial or hearing; and

(3) Prejudice to the parties.

Enumerating these factors in Rule 36, the CADC reasons, “will allow the Commercial Division to increase efficiency and to reduce unnecessary litigation.” 

These factors seem to favor remote proceedings.  Courts have already held that virtual proceedings do not prejudice a party (see A.S. v N.S., 68 Misc 3d 767, 768 [Sup Ct, NY Co 2020]), so factor (3) is a non-factor in all but exceptional circumstances.  And it is difficult to imagine a circumstance where factor (1) or (2) would counsel in favor of an in-person hearing; remote proceedings will always entail less travel time and costs and greater “safety.”  If courts cabin their consideration to the factors proposed by the CDAC, we will see a lot more virtual proceedings.

The proposed rule also permits courts to consider other factors. Depending on the circumstances, the security of the proceedings and risk of unauthorized electronic access, the risk that a witness may get off-camera coaching during their testimony, and the effective presentation of evidence (particularly non-documentary evidence) might all weigh into the Court’s analysis. 

Comments to the proposal are due by November 23, 2022, by email to rulecomments@nycourts.gov.  In the meantime, counsel should keep their video-cameras and Zoom-suits handy.

Know,The,Rules,Word,On,Wooden,Blocks,Isolated,On,Dark

For commercial practitioners who happen to be fans of the TV series “The Office,” Dwight Schrute’s “Learn Your Rules, You Better Learn Your Rules” jingle perfectly describes the constant theme of practicing before the New York Commercial Division. Since its inception in 1993, the Commercial Division has garnered the reputation of placing a heavy emphasis on rules for purposes of efficiency. As readers of this blog may know, those who fail to comply with the Commercial Division Rules, and/or the individual practice rules of a particular Commercial Division judge, will suffer the consequences. A recent decision issued by Justice Robert R. Reed illustrates this principle.

In Latin Mkts. Brazil, LLC v McArdle, a renowned conference promoter in the investment management industry (“Plaintiff”), commenced an action in 2020 against two former employees (“Defendants”), alleging that Defendants stole and used its trade secrets to form a competing entity in the same industry. The parties appeared before the Court for a Compliance Conference, and the Court issued a Compliance Conference Order that granted Plaintiff “leave to file a notice of motion to compel forensic inspection of the computers involved in the subject litigation.”

Plaintiff filed a motion to compel Defendants to respond to its discovery demands and produce, among other things, (i) certain computers belonging to Plaintiff, which the parties agreed to by stipulation, (ii) electronic discovery from local hard drives of computers used by Defendants in their business operations, and (iii) responses to Plaintiff’s Second Notice for Discovery and Inspection, and First Set of Interrogatories. Plaintiff argued that it obtained permission to make this discovery motion at the prior Compliance Conference.

In opposition, Defendants argued that Plaintiff’s motion to compel should be denied based on Plaintiff’s noncompliance with Manhattan Commercial Division Justice Robert Reed’s Part 43 Rule 6(h), which states that “discovery motions are discouraged,” and Commercial Division Rule 14, which requires that “discovery disputes are preferred to be resolved through court conference as opposed to motion practice.” In fact, prior to filing their opposition papers, Defendants’ counsel emailed Plaintiff’s counsel, requesting that Plaintiff withdraw its motion on the basis that it was only authorized to file a motion to compel for the “forensic inspection of the computers” at issue. Plaintiff’s counsel refused to withdraw its motion, and argued on reply that it properly included discovery issues that were raised in previous correspondence with the Court, but not addressed in the Compliance Conference Order.

Justice Reed denied Plaintiff’s motion in its entirety on the basis that “the filing of the instant motion was done without leave of court and in direct contravention of Commercial Division Rules 14 and 24, and Part Rule 43 6(h).” Justice Reed cited to a recent decision, Maple Drake Austell Owner, LLC v D.F. Pray, Inc., in which he denied a motion to strike on the basis that defendant “failed to comply with this court’s explicit rules … [by] never submitt[ing] a letter to the court outlining any of the discovery disputes.”

Upshot:

In light of the famous idiom – “penny wise and pound foolish” – practitioners who fail to adhere to the Commercial Division Rules and/or the individual rules of a particular Commercial Division judge are not only wasting their time, but also the court’s time, and their client’s money. In the words of my colleague Matt Donovan,“[c]heck the rules, folks. Always check the rules.”

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As frequent readers of this blog are no doubt aware, the ten-volume practice treatise entitled Commercial Litigation in New York State Courts and edited by distinguished commercial practitioner Robert L. Haig (the “Haig Treatise”) – now in its 5th edition – is an invaluable guide for litigators navigating the inner workings of the New York State Court system.  With contributions by over 250 authors, the Haig Treatise is a must-have in every commercial litigator’s library, as it is chock-full with insights, strategies, and tactics essential to litigators and corporate in-house counsel alike.  With over 150 chapters, the Haig Treatise is a one-stop destination providing guidance on virtually every topic, procedural or substantive, that may arise in your commercial-litigation practice.

It’s no surprise that the Haig Treatise devotes an entire chapter to the topic of practicing before New York’s Commercial Division.  After all, Mr. Haig chairs the Commercial Division Advisory Council, whose primary purpose is to advise the Chief Judge of the State of New York on all matters related to the Commercial Division, and is one of the leading advocates for the Commercial Division as being among the premier business courts in the country – nay, the world.   

Chapter 39 of the Haig Treatise, entitled “Practice Before the Commercial Division,” is of particular interest to us here at New York Commercial Division Practice for obvious reasons.  Authored by the Hon. Brian M. Cogan of the EDNY and co-managing partner Alan M. Klinger of Stroock & Stroock & Lavan LLP, the chapter provides an all-fours summary for those who may be less familiar with practicing in the Commercial Division – including but not limited to issues related to eligibility for assignment, unique discovery rules, motion practice, ADR requirements, and confidentiality – much of which has served as blog fodder for us over the years.

But the Haig Treatise’s chapter on the Commercial Division also offers some unique practice insights worth expanding on here.  For example, the chapter spends a fair amount of time on the subject of forum shopping – particularly from the perspective of weighing the advantages and disadvantages of litigating in the Commercial Division as opposed to federal court, which for many years enjoyed preferential status among commercial litigators in the New York metro area. 

It’s common knowledge, of course, that plaintiffs’ counsel angle to commence suit in the forum expected to be most favorable to their clients.  Likewise, defendants’ counsel often take the opportunity to remove or transfer a case to a forum more favorable to their own clients.  On this, the authors of the ComDiv chapter suggest that the Commercial Division has “leveled the playing field” in the forum-selection game, and they provide invaluable strategic considerations for litigators when making this choice.

To be sure, since its inception in the mid-1990s, the Commercial Division has become a more attractive setting for business litigation in New York.  In fact, it has for many become the preferred forum for litigating complex business disputes.  The ComDiv chapter authors explain that one of the primary reasons for this is because of the expertise and sophistication of the ComDiv judges on all matters commercial.  As the preamble to the ComDiv Rules suggests, “the [Commercial] Division’s judges are chosen for their extensive experience in resolving sophisticated commercial disputes. Unlike jurists in other civil parts in New York’s court system, Commercial Division justices devote themselves almost exclusively to these complex commercial matters.”  This constitutes a legitimate counterpoint to a common argument in favor of litigating commercial disputes in federal court due to the business-law expertise of many of its judges, who often are appointed to the bench after having spent years litigating complex commercial matters at major law firms.

Another consideration weighing in favor of choosing to litigate before the Commercial Division as opposed to federal court is the comfort of knowing that, once commenced or transferred, your case will be heard by one of a select number of judges.  For example, for those looking to litigate in Manhattan, there are eight Commercial Division judges to whom your case could be assigned versus the approximately 50 SDNY district and magistrate judges sitting on Pearl Street or Foley Square.  Likewise, if you’re looking to litigate in or around Westchester County, you can be certain that your case will be assigned to one or the other of Commercial Division Justices Linda Jamieson or Gretchen Walsh versus the approximately 10 SDNY district and magistrate judges sitting on Quarropas Street in White Plains.

By the way, if you find yourself persuaded by the ComDiv chapter authors on this topic, Appendix C of the ComDiv Rules makes available sample forum-selection clauses, the express purpose of which “is to offer contracting parties streamlined, convenient tools in expressing their consent to confer jurisdiction on the Commercial Division.”

The authors of the ComDiv chapter also make a point of extolling the technological virtues of practicing before the Commercial Division – including, for example, the introduction of the next-gen “Courtroom for the New Millennium” and other innovative developments toward remote or virtual court participation.  

In 2004, long before the COVID-19 pandemic, the Supreme Court in New York County initiated a pilot program entitled “CourtCall,” which permitted attorneys to participate in certain court conferences telephonically.  Despite its obvious benefits – e.g., efficiency, expediency, cost-savings, etc. – the program didn’t gain much traction in the non-commercial parts.  The same can’t be said for the Commercial Division however.  As noted by the ComDiv chapter’s authors, “one legacy of the program [wa]s that the Commercial Division appear[ed] to have a greater degree of receptivity to the use of teleconferencing than in the non-commercial parts.”  

Such appearances no doubt have become realities over the last couple of years, as the Commercial Division has been compelled by the circumstances presented by COVID to make a massive pivot toward remote or virtual participation as a “new norm” for commercial litigation in New York – including, for example, new or amended rules on remote depositions, remote appearances, and virtual evidentiary hearings.   

As with many chapters in the Haig Treatise, the ComDiv chapter closes with some helpful practice aids, checklists, and forms – in this case specifically geared toward practicing in the Commercial Division – including ComDiv assignment and preliminary-conference forms, confidentiality stipulations, and much more.

In sum, chapter 39 of the Haig Treatise on practicing before the Commercial Division – as with the Treatise as a whole – is a well-organized, straightforward, and practical tool that all New York commercial litigators should have on their shelves.  

Render,Illustration,Of,Attorney-client,Privilege,Title,On,Legal,Documents

It is commonplace knowledge that the attorney-client privilege protects confidential communications relating to legal advice between a client and an attorney from disclosure. However, a recent decision from Justice Robert Reed of the Manhattan Commercial Division in Brawer v. Lepor serves as a gentle reminder that “communications do not automatically obtain privilege status merely because they were created or communicated by an attorney.”

Brawer involved a dispute among the founders of a company called MedReviews LLC that publishes medical journals, podcasts, webcasts, and seminars. Plaintiff Michael Brawer, a minority member of the company, commenced a lawsuit against the company’s President, Vice President, and majority member due to an alleged mishandling of company assets. In discovery, plaintiff moved to compel defendants to disclose certain withheld documents, and defendants asserted that the documents were withheld on the basis of the attorney-client privilege. After an in-camera review of the withheld documents, the court substantially denied plaintiff’s motion with the exception of requiring the production of defendants’ retention agreements, engagement letters, and invoices from their counsel.

It’s no secret that New York courts generally favor liberal discovery. And the attorney-client privilege is narrowly interpreted to avoid any tension with this policy of open discovery.

To be precise, the attorney-client privilege applies to confidential communications between a client and an attorney only when such communications are made for the purpose of giving or receiving legal advice. In Brawer, the court found that defendants’ attorney was hired to provide legal advice, and that therefore the attorney’s communications with the company’s officers were not discoverable.

The attorney-client privilege also covers communications of an attorney’s agent, such as consulting experts hired by counsel to assist in preparing for a case. In Brawer, the court found that the communications between the defendants, the attorney, and the consulting experts were therefore protected from disclosure.

Under the common interest doctrine, attorney-client communications shared with a third party or among defendants to an action are privileged if there exists a “common legal interest” among the parties in pending or anticipated litigation. In Brawer, the court found that the withheld communications as between the various defendants were privileged because the parties shared a common legal interest in the defense of plaintiff’s action. The court reasoned that when an attorney represents various clients on a matter of common interest, any confidential communications exchanged between the parties are not subject to disclosure.

Plaintiff’s motion, however, was not denied in its entirety insofar as the court held that “retention and engagement letters and invoices [from the attorneys] are discoverable.” The cases cited by the court stand for the further proposition that fee arrangements between attorney and client, or any agreement for legal fees to be paid for by a third person, do not relate to legal advice and therefore are not protected by the attorney-client privilege, thus highlighting the propositions announced at the outset that the mere participation of an attorney in confidential communications does not automatically protect such communications from disclosure.

Road,Sign,Triangular,Shape,With,Exclamation,Mark,On,A,Background

As practitioners and readers of this blog are aware, responsive pleadings are foundational documents prepared at the earliest stage of a litigation in which the responding party denies, admits, or states that she lacks knowledge or information sufficient to form a belief as to the truth of the allegation. While the substance of the responsive pleading is dictated by CPLR 3018, the form can (and often does) vary. I’m sure we have all come across answers ranging from those that respond to each numbered allegation, answers where the responding party bundles its denials, admissions, and DKIs into fewer paragraphs, and anything in between.

As of Monday, September 12, 2022, responsive pleadings in the Commercial Division will take on a new form, with an eye toward utility and overall efficiency.

On August 17, 2022, Chief Administrative Judge Lawrence K. Marks promulgated amended Commercial Division Rule 6 (Administrative Order 189/2022), which now includes a brand-new subsection “(d).” Rule 6 (d) will require the responding party to prepare her responsive pleading to interlineate in her response each allegation in the pleading. To wit:

Rule 6. Form of Papers.

* * *

(d)          Interlineation of Responsive Pleadings

(1)          For every responsive pleading, the party preparing the responsive pleading shall interlineate each allegation of the pleading to which it is responding with the party’s response to that allegation, and in doing so, shall preserve the content and numbering of the allegation;

(2)          The party who prepared a pleading to which a responsive pleading is required shall, upon request, promptly provide a copy of its pleading in the same word processing software application in which the pleading was prepared to the party preparing the responsive pleading.

Interlineated responses are not a foreign concept to New York attorneys, as it is standard practice for many practitioners when responding to discovery demands. In preparing responsive pleadings in cases before the Commercial Division, practitioners will now be required to re-state each allegation before responding to it, maintaining both the numbering and the content of the allegation. This applies to every type of responsive pleading, whether it is an answer to a complaint, a reply to counterclaims or cross-claims, or an answer to third-party pleadings.

“Readability” and “utility” were reasons cited by the Commercial Division Advisory Council in advocating for the promulgation of this new rule. The new format enables the Court, the parties, and counsel to review the responsive pleading as a self-contained document (instead of pulling up the pleading and its response and performing a side-by-side review each time). The CDAC envisions the heightened utility of interlineated responsive pleadings to come into play in a number of contexts, including motions directed to the pleadings, disclosure, depositions, summary judgment, and trial prep.

In addition, lest practitioners be concerned about the added cost in both time and money associated with preparing the newly mandated form of responsive pleading, the amendment requires counsel for the pleading party to “promptly” provide a copy of the pleading in a native word processing file upon request.

Finally, it is important to note that amended Rule 6 is meant to affect only the form of responsive pleadings, not the content or substance of responses permitted and/or required by the CPLR and caselaw.

Amended Rule 6(d) is effective as of September 12, 2022.

When the Court orders you to attend a Continuing Legal Education (CLE) class on civility “for the harm [you’ve] done to the [legal] profession”– not to mention issues you five-figures in sanctions – you know you’ve done something very, very wrong.  And that’s exactly what happened last month when Manhattan Commercial Division Justice Andrea Masley issued an Order (the “Order”) in Hindlin v Prescription Songs LLC, et al., censuring and sanctioning two seasoned New York attorneys for “uncivil and obstructive behavior” during depositions.

In this complex and contentious litigation, plaintiff Jacob Hindlin (a/k/a J Kash), a highly successful writer and producer of contemporary pop music, commenced an action in 2018 against music publishing and production companies owned by Lukasz Gottwald’s (a/k/a Dr. Luke), seeking a declaratory judgment regarding the parties’ rights and obligations concerning a series of agreements entered into in 2010.

The protracted litigation, which is scheduled for a jury trial on October 31, 2022, has a voluminous record replete with vigorous discovery motion practice leading to Justice Masley’s appointment of a special master to supervise discovery.

The deposition of Jaime Hindlin (plaintiff’s manager and wife), which led to the issuance of sanctions against two veteran attorneys, was conducted via videoconference.  According to the Court, Ms. Hindlin’s attorney interjected 187 times with improper speaking objections and/or colloquy, and instructed Ms. Hindlin not to answer 30 questions without any lawful basis. The plaintiff’s attorney interjected 114 times with improper speaking objections and/or colloquy.

This led the defendants to move for sanctions against the two attorneys in connection with their “improper, incendiary, and unprofessional” conduct at Ms. Hindlin’s deposition. The Court issued a Case Management Order stating that that, upon its review of the deposition transcript, the Court found it necessary to appoint Judge Karla Moskowitz, a retired First Department Justice, to supervise Ms. Hindlin’s continued deposition.

In the Order, the Court, citing various treatises, statutes, and rules concerning the appropriate conduct of attorneys at depositions, admonished (to put it mildly) the two attorneys.

The plaintiff’s attorney, a member of the Committee on Character and Fitness for the First Department for nearly four decades, received the brunt of Court’s powerful rebuke.  The Court noted that it was “not the first time [that the plaintiff’s attorney] has exhibited this type of unprofessional, bullying behavior in this action, though it was only brought to this court’s attention with this motion.”

For example, at his client’s December 2020 deposition, plaintiff’s counsel told the defendants’ attorney that he was “not very good at asking questions, but you are very good at interrupting others,” and that he was “really obnoxious.”  At Dr. Luke’s deposition, he told his adversary to “wipe that silly smile off [his] face.”  At a February 2021 non-party deposition, he called the defendants’ attorney “a joke,” telling him: “You have no knowledge of the law at all. You’re a joke . . . you’re nonsense.”

Judge Masley went so far as to suggest that such reprehensible behavior and conduct during discovery would have been sufficient to warrant dismissal of their clients’ claims.  Unfortunately, the defendants did not move for that relief.  And so, the Court chose to sanction the two attorneys for their conduct, which went well beyond “zealous” representation of their clients.

First, counsel was ordered to reimburse the defendants the attorneys’ fees and expenses incurred at Jaime Hindlin’s deposition and for making the motion.

Second, Jaime Hindlin’s attorney was ordered to pay $2,000 to the Lawyer’s Fund for Client Protection, while the plaintiff’s attorney was penalized $10,000.

Third, and perhaps most notable, Justice Masely ordered both attorneys to attend a New York State Bar Association CLE on civility within 30 days of her Order, and to submit to the Court an affirmation attesting to their attendance and whether they read the New York Standards of Civility as required.  Justice Masley even directed that the CLE instructor utilize the transcript from Jaime Hindlin’s deposition in his seminar “as an example of uncivil sanctionable behavior.”

In addition to being an interesting read, the Hindlin decision serves as a friendly reminder to practitioners that a little decorum never hurt anyone.

United,States,District,Court,Building,Located,In,New,York,City.

A few years back, in a post entitled What the Commercial Division Has Done for Us Lately, we commented on a 2019 report from the Commercial Division Advisory Council, which extolled “The Benefits of the Commercial Division to the State of New York” since its inception in 1995, including how it “has made the business litigation process in New York more cost effective, predictable and expeditious, and has thereby provided a more hospitable and attractive environment for business litigation in New York State.”

The business and legal communities in New York continue to carry the banner of the Commercial Division.  And for good reason.  As highlighted in a recent webinar sponsored by the Business Council of New York, the Commercial Division has become a preferred forum — if not the preferred forum — for resolution of complex business disputes and remains available to businesses of all sizes and all locations, including outside the State of New York.  Indeed, according to Advisory Council chair Robert L. Haig, himself a webinar participant:

Any business, which has a choice, should seriously consider bringing its business litigation in New York and including choice-of-forum clause in its contracts, specifying the Commercial Division as the forum for resolving disputes arising under the contract.

Any business that is concerned about the predictability and the cost of litigation should consider moving its operations, its markets, and even its headquarters to New York State.

Seriously?  New York?  After all, as noted by moderator Heather Briccetti of the Business Council at the outset of the webinar, “New York is a very challenging environment to do business, both in terms of taxes and regulation.”  So why choose to litigate in or even move your company to New York?

Well, according to the various webinar participants — among them representatives from the Association of Corporate Council, the American Bar Association and several current and retired judges, including former Manhattan ComDiv Justice O. Peter Sherwood and Queens County ComDiv Justice Marguerite A. Grays — it’s primarily because the Commercial Division is made up of sophisticated and responsive judges and court staff who possess the requisite commercial expertise to handle a strictly commercial docket, and who have developed a body of well-reasoned and consistently-applied precedent and rules on which businesses and their counsel can predictably rely in the efficient and effective resolution of their disputes.  The fact that the Commercial Division remains on the cutting edge of courtroom technology and other procedural innovations doesn’t hurt either, especially in the COVID and post-COVID era.

Sarah J. Mugel, General Counsel for National Fuel Gas Company, a multi-billion dollar diversified energy company headquartered outside Buffalo, offered an interesting perspective in terms of what matters to corporations and in-house counsel when faced with litigation:

Like most corporations, National Fuel tries to avoid litigation because of its cost and risk, and because of the diversion it causes to those non-legal employees who are involved, taking them away from their regular duties.  While there are many disadvantages to being involved in litigation, the process can be at least somewhat improved when the courts make efforts to do so.  And the Commercial Division . . . has made substantial efforts to improve the litigation process, and companies generally regard these efforts as successful.

The Commercial Division helps businesses resolve our disputes quickly and cost-effectively so we can get on with our business and avoid getting bogged down in litigation quagmires — which is truly, even for the lawyers, what we look forward to.

Drawing on the aforementioned 2019 ComDiv Advisory Council report, Chief Administrative Judge Lawrence K. Marks also offered an interesting perspective from the point of view of economics — particularly, the economic benefits of the Commercial Division to New York, its courts, and its citizens:

The Commercial Division is unique . . . in its ability to help increase business activity within the State, which in turn generates tax revenue and provides employment. These unique characteristics benefit our entire court system and all New Yorkers.

For example, a division or subsidiary that generates $10 billion in annual revenue might incur employee compensation costs of as much as $6 billion, which would result in annual New York income tax revenue of as much as $500 million. The move to New York might also result in annual New York corporate income tax revenue of as much as $50 million.  Thus, the move of a division or subsidiary of one company to New York could result in additional New York income tax revenue of as much as $550 million each year. The annual operating budget for the New York state court system is currently $2.4 billion. If the benefits of greater access to the Commercial Division help to persuade a company to move a $10 billion division to New York, one such move could pay for nearly a quarter of the entire annual operating costs of our court system.

So there you have it.  Sound reasons — from the bench, as it were — for moving your business to rather than from New York, even in this era of mass exodus to more tax-friendly states.  We’ve said it before; we’ll say it again:  Get thee to the Commercial Division!

Litigation in the Commercial Division is efficient and effective in part because its judges strictly enforce the Commercial Division Rules.  Those unsure can peruse Matt Donovan’s “Check the Rules” series on this blog, including (apropos the subject of this post) his post concerning the amendments to Commercial Division Rule 17.

One of the most significant rules of the Commercial Division is the limitation on the size of submissions.  In 2018, the Commercial Division Rules were amended to implement a word limit rather than a page limit.  According to a Memorandum by the Commercial Division Advisory Council, that rule change was designed to reduce incentives for attorneys to fit more text into the page limit. Commercial Division Rule 17 now provides:

Unless otherwise permitted by the court: (i) briefs or memoranda of law shall be limited to 7,000 words each; (ii) reply memoranda shall be no more than 4,200 words and shall not contain any arguments that do not respond or relate to those made in the memoranda in chief; (iii) affidavits and affirmations shall be limited to 7,000 words each. The word count shall exclude the caption, table of contents, table of authorities, and signature block.”

One need not look far to determine how seriously the Commercial Division Justices take the word count limitations.  Justice Borrok’s Part Rules provide that “Word limits specified in Commercial Division Rule 17 will be strictly enforced, unless permission to expand the word limits is granted in advance of the filing of the papers.”  Justices Grays (Queens County), Chimes (Erie County), Gomez (Bronx County), Reed (New York County), and Masely (New York County) all have similar rules.  Justice Jamieson of the Westchester County Commercial Division reminds counsel, “All papers must comply with the applicable provisions of the CPLR and with Rules 16, 17 and 18 of the Commercial Division Rules. In addition, the font size of text and footnotes must be no smaller than 11 point. Papers which do not comply may be rejected.”

Penalties for non-compliance with the word limits can be severe.  In Levine v Cohen, 2019 N.Y. Slip Op. 34059[U], 22 [N.Y. Sup Ct, Nassau County 2019], Nassau County Commercial Division Justice Timothy Driscoll struck an attorney’s affirmation that (among other defects) violated the commercial division word limits.

Last month, New York County Commercial Division Justice Joel M. Cohen issued another warning to the Commercial Division bar about improper attempts to circumvent the word limits of Commercial Division Rule 17 by filing multiple documents in the place of one.  In Durst Pyramid LLC v. Silver Cinemas Acquisition Co., 2022 NY Slip Op 31958(U), the Plaintiff filed a motion for summary judgment that included a nearly 7,000 word memorandum of law, but that memorandum of law did not include a statement of facts.  Rather, the memorandum simply referred the Court to four additional affidavits.  In his ruling on Plaintiff’s motion for summary judgment, Justice Cohen observed:

A brief note on process: Motions for summary judgment require Rule 19-a statements, but such a statement is not a substitute for including a Statement of Facts (with citations to the record) in the Memorandum of Law.  A statement of facts is an integral part of a summary judgment brief, not merely an appendix. And counsel may not evade the applicable word-count limits by omitting facts sections from their briefs. Here, Landlord’s opening submission went on for 414 pages, including a nearly 7,000-word memorandum of law and numerous exhibits, yet did not include a facts section. Instead, counsel referred the Court to four separate affidavits, totaling an additional 11,816 words. Doing so, in the Court’s view, circumvented the wordcount limit set forth in the Commercial Division Rules. While the Court will not strike the opening brief in this instance, counsel are advised that such submissions will not be considered in the future.”

(emphases added, citations omitted)

Counsel have been warned.  The Commercial Division word limitations exist to keep arguments concise, not test whether lawyers can “respectfully refer the Court to” or “incorporate herein” other filings into their memoranda.

Courts continue to refer to federal Racketeering Influenced and Corrupt Organizations Act (“RICO”) claims as “potent weapons” that are equivalent to a “thermonuclear device” in cases involving criminal racketeering activity. So why are we seeing RICO claims in ordinary business litigation disputes, including in the Commercial Division, that bear little to no resemblance to criminal racketeering activity? Perhaps because civil litigants are using RICO claims and the associated remedy of treble damages and attorneys’ fees awards to instill fear of public embarrassment and reputational damage in their adversary and to force defendants to settle or at least to get them to the bargaining table.

RICO was enacted in 1970 to combat organized crime. But RICO has a civil component as well that provides plaintiffs with a private right of action to sue for injuries to their business or property.   To establish a civil RICO claim, a plaintiff must show “(1) a violation of the RICO statute, 18 USC § 1962; (2) an injury to business or property; and (3) that the injury was caused by the violation of Section 1962” (Daskal v Tyrnauer,, 961 NYS2d 357 [Sup Ct, Kings County 2012], aff’d, 123 AD3d 652, 998 NYS2d 412 [2d Dept 2014]).

Among other activities prohibited by RICO, Section 1962(c) prohibits a person from conducting the affairs of an enterprise through a pattern of racketeering. To state a claim for RICO under § 1962(c), a plaintiff must establish that he was injured by the defendant’s “(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity” (Invacare Supply Group, Inc. v Star Promotions, Inc., 27 Misc 3d 1202[A] [Sup Ct, Kings County 2010]; 18 USCA § 1962).

In Chana Vashovsky, individually and derivatively on behalf of Hudson Valley NY Holdings LLC, v Yosef Zablocki and National Jewish Convention Center, a matter pending in the Kings County Commercial Division, plaintiff formed an entity, Hudson Valley NY Holdings LLC (“HVNY”), which purchased the Hudson Valley Resort. Plaintiff entered into an agreement with defendant Yosef Zablocki, which gave him a 50% interest in HVNY and caused him to become the managing member in exchange for an investment of $500,000. As with any ordinary business dispute, disagreements arose between Vashovsky and Zablocki with respect to the manner in which the business was being run.  .

Plaintiff initially commenced this lawsuit seeking claims for (i) violation of New York Business Corporation Law § 720(a)(1)(b); (ii) usurpation of corporate opportunities; (iii) conversion; (iv) accounting; (v) breach of fiduciary duty; (v) breach of contract; (vi) indemnification; (vii) unjust enrichment; (viii) fraudulent inducement; (ix) negligent misrepresentation; (x) misappropriation of corporate funds; (ix) fraudulent transfer of assets; and (xiii) dissolution.

In January 2022, approximately ten months after plaintiff commenced this lawsuit, plaintiff filed a motion seeking leave to amend the complaint to include additional causes of action, including a RICO claim. Kings County Commercial Division Justice Leon Ruchelsman denied plaintiff’s motion seeking to amend the complaint to add a RICO claim.

Specifically, Justice Ruchelsman denied plaintiff’s motion because plaintiff failed to demonstrate that defendants engaged in an enterprise – an essential element of a RICO claim. A RICO enterprise is “any individual, partnership, corporation, association or other legal entity, and any union or group of individuals associated in fact although not a legal entity.” To state a valid RICO claim, a plaintiff must plead the existence of an enterprise that is “distinct from the alleged pattern of racketeering activity” (Daskal, 37 Misc 3d 1214[A]). Put differently, “if the sole purpose of the alleged enterprise is to perpetrate the alleged fraud, there can be no enterprise for RICO purposes” (Goldfine v Sichenzia, 118 F Supp 2d 392, 401 [SDNY 2000]).

In this case, the court determined that the complaint did not allege “the enterprise served a purpose other than to engage in the alleged fraud.” In the proposed amended complaint, plaintiff asserted that the RICO defendants “acquired and maintained, directly and indirectly, an interest in and control of,” HVNY, “which enterprise was engaged in, and the activities of which affect, interstate commerce.” The allegations in the proposed amended complaint focused on the fact that defendants were purportedly diverting business opportunities and revenue from HVNY. The court found that the entire enterprise alleged in the proposed amended complaint existed solely to defraud the plaintiffs. Accordingly, Justice Ruchelsman held that plaintiff failed to show the existence of an enterprise and, thus, denied plaintiff’s motion to add a RICO claim.

Interestingly, Justice Ruchelsman denied a motion for leave to amend a complaint to add a RICO claim in a case in which my firm represented defendant CoolFrames, LLC.  In that case, the court similarly held that where the sole alleged purpose of the purported enterprise was to perpetuate a fraud, plaintiff failed to “demonstrate the existence of an enterprise.”

We are seeing more and more litigants attempt to include civil RICO claims in ordinary business disputes. Be mindful of the fact that if a party successfully establishes a RICO claim, they will be entitled to both treble damages and attorney fees. Luckily courts do not favor RICO claims in civil matters in large part because the elements of a civil RICO claims are hard to establish, especially in business disputes.

As readers of this blog are aware—click here, here, here, and here for related posts—the CPLR 3213 motion for summary judgment in lieu of complaint can be a powerful tool to secure an expedited judgment, “meld[ing] pleading and motion practice into one step, allowing a summary judgment motion to be made before issue [is] joined.”  Weissman v. Sinorm Deli, 669 NE 2d 242 (1996)

The New York legislature prescribes only a narrow set of circumstances under which CPLR 3213 may be applied.  When an action is based upon “an instrument for the payment of money only,” CPLR 3213 can save a plaintiff time and money by skipping past the pleadings and discovery stages of litigation, and barreling straight toward a judgment.

That said, Section 3213 of the CPLR is generally unavailable if the sued-upon instrument is ambiguous on the payment obligation and requires proof beyond the face of the instrument, as was recently discussed by the First Department in Talos Capital Designated Activity Co. v 257 Church Holdings LLC (2022 NY Slip Op 03186).

Talos involved a mezzanine lender who sought to collect, pursuant to CPLR 3213, money owed to the lender under certain loan guaranties and pledges following the borrower’s failure to meet its obligations at the “Five Year Paydown,” a five-year checkpoint of the loan.

In the guaranty context, in order to demonstrate entitlement to judgment under CPLR 3213, the plaintiff must show: (1) the existence of the guaranty; (2) the underlying debt; and (3) the guarantor’s failure to perform under the guaranty.

The First Department modified the judgment entered by the trial court in favor of the lender against all defendants, limited to just the judgment against the guarantor under the loan’s Payment Recourse Guaranty.

Rather than looking at the Payment Recourse Guaranty in isolation, the First Department held that when read together with the underlying loan agreement, the Payment Recourse Guaranty was ambiguous as to the triggering event of guarantor’s obligations. Therefore, the lender could not show that the guarantor actually defaulted on his obligations under the Payment Recourse Guaranty.

The underlying loan agreement provided that a nonpayment default by the borrower at the Five Year Paydown date was not considered a default under the loan agreement. Instead, upon a nonpayment default at the Five Year Paydown date, certain penalties were applied (calculated per the loan agreement) and the lender was entitled to exercise a series of elective remedies under certain specifically named guaranties and guaranty pledges. Any remaining deficiency after lender exercised its remedies under these guaranties and pledges would remain outstanding as part of the principal balance due upon the maturity date of the loan.

Critically, the loan agreement did not specifically name the Payment Recourse Guaranty as one of the guaranties and pledges that lender could exercise its remedies against. Thus, the First Department held that the instrument sued upon (the Payment Recourse Guaranty, as informed by the underlying loan agreement) was ambiguous as to whether the appellant-guarantor’s obligation was triggered upon a nonpayment default of the Five Year Paydown, or upon the maturity date of the loan when the borrower’s full obligation becomes due.

Given this material ambiguity, the First Department vacated that part of the judgment as to the guarantor and deemed the moving and answering papers to be the complaint and answer, respectively.

KEY TAKEAWAY

Section 3213 of the CPLR can be an efficient tool to streamline actions that fall within its ambit, but courts are careful to limit the motion’s applicability to only those instruments that are unambiguously clear as to a defendant’s payment obligation.