In our last “Check the Rules” post back in December, we noted the recent additions to the Manhattan Commercial Division bench, Justices Andrew Borrok and Joel M. Cohen, and promised to report back in early 2019 on any notable practice rules in their respective Parts.

My colleague Viktoriya Liberchuk’s perceptive post last week on the recent trend in the Commercial Division (and beyond) to formally encourage in-court “at bats” for young lawyers cited two specific rules from the newly-published “Practices and Procedures” for both Justice Borrok and Justice Cohen, both of whom encourage and even incentivize the “less senior attorney” or the “lawyer out of law school for five years or less” to argue motions before them.

In addition to advocating for the development of junior associates, Justice Borrok’s individual practice rules also suggest that he’s an advocate for the use of technology in the practice of law, or at least in his Part.  In his one and only published decision in 2019 thus far, Ostro v Ostro, Justice Borrok twice ordered the parties to comply with the court’s e-filing procedures, which is the subject of an entire section of his practice rules entitled “Electronic Filing.”

Justice Borrok has a handful of other techie practice rules worthy of note:

Be sure to “bookmark” your briefs and “hyperlink” your references to case law, etc.  Justice Borrok requires strict adherence to the requirement in Commercial Division Rule 6 that all briefs “shall include bookmarks providing a listing of the document’s contents and facilitating easy navigation by the reader within the document.”  He also “strongly encourages” the use of hyperlinks within documents submitted to the court.

Make sure you’re registered for “eTrack.”  As noted in Justice Borrok’s practice rules, as well as in the New York State Unified Court System’s description of the service, “eTrack is a case tracking service which enables you to track active Civil Supreme Court cases from all 62 counties of New York State.”  Justice Borrok requires that “parties and/or their counsel” litigating in his Part be registered for eTrack.

Check in at the “kiosk” outside the courtroom before appearing for a conference.  There’s a kiosk located near the courtroom entrance of Part 53.  Counsel are required to check in by entering the index number of their case, select and print the appropriate conference form(s), and fill them out before entering the courtroom.  By the way, be sure to set specific discovery dates in your proposed conference orders.  Open-ended “within 45 days”-type deadlines won’t cut it.

Submit your trial documents on a “flash drive.”  If you’re headed to trial before Justice Borrok, be sure to submit all your trial documents — including marked pleadings, prior decisions, notices to admit, deposition transcripts, and the like — “via flash drive prior to the hearings or start of trial.”

Be sure to check back with us in the coming months for notable decisions coming out of the newly-constituted Parts 3 and 53 in the Manhattan Commercial Division.

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If you have ever looked at a contract’s New York choice-of-law provision or a status conference stipulation and thought to yourself, “Who wrote this darned thing?” then now is your chance to weigh in. The Commercial Division Advisory Council has recommended two new forms—a model choice-of-law provision and a model status conference stipulation and order form—and the Office of Court Administration is soliciting public comments. Comments should be emailed to rulecomments@nycourts.gov by August 25, 2017.

Standard New York Choice-of-Law Provision

The proposed sample choice-of-law provision, which would be appended to the Rules of the Commercial Division, is as follows:

THIS AGREEMENT AND ITS ENFORCEMENT, AND ANY CONTROVERSY ARISING OUT OF OR RELATING TO THE MAKING OR PERFORMANCE OF THIS AGREEMENT, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO NEW YORK’S PRINCIPLES OF CONFLICTS OF LAW.

The gentle reader must forgive the ALL-CAPS format of the original proposed text (presumably this provision was intended to be read loudly in a New York accent). This proposed uniform provision is intended to (1) assist drafters who wish to choose New York law to govern disputes; (2) reduce litigation over choice-of-law issues; and (3) showcase New York’s “predictable and sensible commercial law” and thereby increase commercial litigation in New York courts. Whether increased commercial litigation in New York’s courts is a desirable goal may be open to debate, but few would object that litigation over sloppily-drafted choice-of-law provisions should be eradicated to the extent possible.

Model Status Conference Stipulation and Order

The Advisory Council has also recommended the adoption of a revised model status conference stipulation and order for use in the Commercial Division. This revised form, which can be viewed here, was designed to incorporate changes in Commercial Division rules and practice since the form was last revised in October 2015. The proposed form has a new section on expert discovery, contains reminders on the finality of discovery deadlines and the availability of alternative dispute resolution, and allows for greater specificity regarding discovery topics. As a model form it is not mandatory, but insofar as it is used as a guide by judges it provides a comprehensive overview of the discovery topics that a court would need to address.