I think it’s fair to say that Commercial Division judges have little time for discovery disputes. If one peruses the individual practice rules of many of the ComDiv judges, one typically finds language all but prohibiting discovery motions. And ComDiv Rule 14, which itself provides that “[d]iscovery disputes are preferred to be resolved through court
My colleague Matt Donovan recently wrote about the requirements of Commercial Division Rule 13(c) and highlighted certain decisions in which expert reports were precluded for non-compliance. This week’s post looks at a decision by newly-appointed Manhattan Commercial Division Justice Nancy M. Bannon, who denied a motion to preclude expert reports despite non-compliance with the rule. In the decision, Justice Bannon sheds light on the boundary between admissible and impermissible expert opinions, particularly when reports encroach on the court’s authority to opine on legal conclusions, while also imposing specific limitations on the expert’s testimony.
Continue Reading Court Permits Expert Reports with Disclosure Gaps but Recognizes Limits on Trial Testimony
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
As recently highlighted by this blog, on September 12, 2024, the Justices of the Commercial Division gathered in the offices of Kelley & Drye to discuss new updates and happenings in the world of the Commercial Division (“ComDiv”). The night was filled with lively discussion – leaving those fortunate enough to attend with valuable insights
Under CPLR 7502(c), a court in “the county in which an arbitration is pending…[is permitted to] entertain an application…for a preliminary injunction in connection with an arbitration that is pending or that is to be commenced inside or outside this state.”
A recent decision from Justice Anar R. Patel of the Manhattan Commercial Division
Lawyers practicing in the Commercial Division are keenly aware of issues related to attorneys’ fee awards in commercial cases. Commercial agreements commonly contain a provision awarding attorneys’ fees to a prevailing party in a manner sufficient to satisfy entitlement to an award under the contractual exception to “American Rule.” However, entitlement to a fee award
As summer winds down, ComDiv practitioners no doubt will soon be gearing up for the upcoming fall and winter months. Time again to trade in your flip-flops for legal pads. The year-end push will soon be upon us.
As practitioners start to populate their calendars with various litigation deadlines, we take this opportunity to
As readers of this blog no doubt are aware, clients sometimes take a “shoot first, ask questions later” approach during the early stages of litigation. This is especially true when bringing a CPLR 3213 motion for summary judgment in lieu of complaint, which, under narrow circumstances, provides an accelerated procedure for litigants to obtain a
New York law generally does not favor non-compete agreements, viewing them as unreasonable restraint of trade. As a result, New York courts apply a rigorous standard when deciding whether to enforce these restrictive agreements. The strict standard was demonstrated in Multiplier Inc. v. Moreno, et al. In Multiplier Inc., the Manhattan Commercial Division considered
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