commercial division rules

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Regular visitors to this blog no doubt are aware that the rules of practice for the Commercial Division are centered on innovation, efficiency, cost-effectiveness, and predictability.  This includes the rules governing trial and trial preparation (Rules 25-33), which are important enough to merit their own, separate Preamble. 

As it stands, the Preamble to Rules 25-33 explains that “[t]hese rules emphasize the importance of pre-trial preparation and remind the practitioner that such preparation is an essential element of successfully . . . conducting a complex commercial  . . . trial [and] identify a series of key items that must be addressed or completed before commencing a trial in the Commercial Division” (emphasis added).  The Preamble goes on to list the items that counsel are obligated to address in advance, including:

  • “accurately estimating the length of the trial so that the court, counsel and parties can properly allocate their time”;
  • “preparing and communicating to the court motions in limine in advance of the trial date”;
  • “reviewing, assembling, and pre-marking exhibits”;
  • “addressing issues that may arise in connection with the use of deposition testimony at trial”;
  • “agreeing on a schedule for witnesses and the manner in which each witness will testify (including giving consideration to direct testimony by affidavit in a non-jury trial)”; and
  • “preparing and negotiating jury instructions and verdict sheets.”

Continue Reading Preparation Is Everything:  Commercial Division Advisory Council Proposes New Model Pre-Trial Order for Trials in the Commercial Division

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Frequent readers of this blog know that we are not shy in acknowledging the Commercial Division’s status as the leading forum for resolving complex business disputes. This reputation can be, in part, largely attributed to the ongoing efforts of the Commercial Division Advisory Council, which continually assesses and suggests practical, significant modifications to the Commercial Division Rules. These changes aim to maintain the utmost level of efficiency and reinforce the Commercial Division’s standing as a global leader in resolving commercial disputes.

The Advisory Council has recently proposed a significant rule change: an amendment to Commercial Division Rule 11 to mandate immediate exchange of specified categories of information at the outset of any litigation in the Commercial Division, eliminating the need for formal discovery requests. This proposal seeks to reduce some of the costs, delays, and complications associated with discovery, and to allow parties to “competently assess the risks of trial and the benefits of potential settlement in the early stage of the litigation.”

The proposal recommends a more standardized disclosure system for all Commercial Division cases, replacing the existing practice in which individual judges often establish their own “partial-disclosure regimes” to facilitate discovery. The Advisory Council believes that having a Commercial Division rule tailored to the discovery needs of complex commercial litigation will create a “more uniform and consistent approach, benefiting counsel and preventing the spread of individual judges’ idiosyncratic practices.”Continue Reading Getting Ahead of Discovery: Can Amended Rule 11 Streamline Commercial Litigation?

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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…

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Adam Michael Szuscik, Unsplash

As recently highlighted by my colleagues, the Commercial Division Advisory Council (“Advisory Council”) has been hard at work striving to implement and amend certain rules and regulations to enhance practice in the Commercial Division.  One recent proposal that may catch practitioners’ eyes is the potential addition of Commercial Division Rule 23:  a rule designed to govern the filing of amicus curiae briefs.

Amicus curiae or “friend of the court” briefs are used by non-parties, usually in federal appellate cases, who want to assist a court on issues in which they may have an interest.  Typically, amicus curiae briefs are allowed if they assist a court in analyzing an issue or argument that a party to the action is not able to fully and adequately present (see 22 NYCRR § 500.23 [a] [4]).

But amicus curiae brief filings in a state trial court, you say?  Yes, you read that right.  Despite the scarcity of such filings, the Advisory Council’s proposal attempts to introduce Rule 23 “given [the ComDiv’s] docket of sophisticated and often far-reaching commercial and business litigation.”Continue Reading You Got a Friend in Me: Commercial Division Seeks to Adopt New Rule Governing the Filing of Amicus Curiae Briefs

The most powerful word in the world pops up everywhere. Ironically, this is on Sandown Pier on the Isle of Wight (UK) — a place that has not changed for 30 years.
Ross Findon, Unsplash

Amid the hustle and bustle of the holiday season, and gearing up for the new year, the Commercial Division Advisory Council (the “Advisory Council”) was hard at work in proposing new rule changes. On December 26, 2024, the New York State Office of Court Administration issued a request seeking public commentary on a proposal, recommended by the Advisory Council, to amend Commercial Division Rules Section 22 NYCRR §202.70 (c) concerning non-commercial cases.

Section 22 NYCRR §202.70 (c)(5), in particular, provides that courts within the Commercial Division are not permitted to hear proceedings to enforce judgments, even where the required monetary threshold is met. Some Commercial Division judges have interpreted this rule as a bar to the enforcement of judgments, even if such judgments were obtained in the Commercial Division (see e.g., Gibson, Dunn & Crutcher LLP v World Class Capital Group LLC, Index No. 650318/2020 [Sup Ct, NY County Nov. 20, 2020]; J. Remora Maintenance LLC v Efromovich, 2018 WL 4963419, at *2 [Sup Ct, NY County Oct. 15, 2018]).Continue Reading New Year, New (Proposed) Rules: Updates in the Commercial Division

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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 the delay of protracted litigation. However, because a  CPLR 3213  motion provides for a remedy which precludes a litigant from presenting his evidence to a judge or jury, courts heavily scrutinize this type of motion.

For example, courts tend to dismiss CPLR 3213  motions where the instrument for payment (e.g., a promissory note) requires “outside proof … other than simple proof of nonpayment or a similar de minimis deviation from the face of the document” (Kitchen Winners NY, Inc. v Triptow, 226 AD3d 989, 991 [2d Dept 2024]). But what happens when an additional document (e.g., a Heter Iska) is required to be executed under religious law in connection with a promissory note? This question was recently addressed by Kings County Commercial Division Justice Leon Ruchelsman  in Junik v 61 N. 11 LLC.  Continue Reading The Proof Is in the Note: Commercial Division Holds a Heter Iska Is Not Outside Proof for Purposes of Summary Judgment in Lieu of Complaint

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Under CPLR §§ 3111 and 3122(d), “[t]he reasonable production expenses of a non-party witness shall be defrayed by the party seeking discovery.” The Commercial Division Rules at Appendix A (“Guidelines for the Discovery of ESI”) define “reasonable production expenses” to include:

Continue Reading The Cost of Withholding ESI: First Department Sets Limits on Non-Party Recovery of ESI Production Costs
  1. Reasonable fees charged by outside counsel and e-discovery consultants;
  2. Reasonable costs incurred in connection with the identification, preservation, collection, processing, hosting, use of advanced analytical software applications and other technologies, review for relevance and privilege, preparation of a privilege log (to the extent one is requested), and production;
  3. Reasonable costs associated with disruption to the non-party’s normal business operations, provided such costs are quantifiable and warranted by the facts and circumstances; and
  4. Other costs reasonably identified by the non-party.
Continue Reading The Cost of Withholding ESI: First Department Sets Limits on Non-Party Recovery of ESI Production Costs
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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 conference as opposed to motion practice,” expressly gives the judges the discretion to do so (“If the court’s Part Rules address discovery disputes, those Part Rules will govern discovery disputes in a pending case”).  If a particular ComDiv judge’s individual rules are silent on the matter, then the default rule in Rule 14 applies.  In which case, counsel are restricted to (i) making a good-faith attempt to resolve the dispute(s) amongst themselves; and (ii) if unsuccessful on their own, submitting competing letters outlining their respective positions and asking for the opportunity to conference the dispute(s) with the court. 

Commercial Division judges also have little time for attorney gamesmanship.  Again, the ComDiv Rules expressly support this sentiment, as one need look no further than the Preamble to the Rules, which was amended some five years ago to insist on, among other things, “that the practicing bar be held rigorously to a standard of commitment and professionalism of the highest caliber.”  This includes conduct at depositions. Continue Reading Playing Nice in the Litigation Sandbox

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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…

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It’s been a minute since our last installment of our “Check the Rules” series here on New York Commercial Division Practice, in which we occasionally highlight decisions from Commercial Division judges holding litigants and practitioners to account for noncompliance with either the Rules of the Commercial Division or the individual practice rules…