Category Archives: Recent Articles

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Commercial Division Rolls Out Four New Rules Covering Expert Disclosures, Temporary Restraining Order Requirements, Forum Selection Clauses and Trial Length

Four of the proposed amendments to the Commercial Division Rules, which were discussed in an earlier blog post while the rules were under consideration by the Office of Administration, were adopted over the summer and have now gone into effect in the Commercial Division.… Continue Reading

Be Sure to Sue Before Your Defendant Moves: Appellate Division Finds No Jurisdiction Over Defendant Company After Sale of Its New York Assets

In Matter of CDR Créances S.A.S. v First Hotels & Resorts Invs., Inc., 2016 Slip Op. 04888 (1st Dep’t June 21, 2016), the Appellate Division reversed a December 11, 2014 Order by New York County Commercial Division Justice Lawrence K. Marks, which denied respondent First Hotels & Resorts Investments, Inc.’s (“First Hotels’”) motion to dismiss … Continue Reading

Commercial Division Rules Revamp Encourages International Arbitration Matters In The New York County Commercial Division

The Commercial Division Advisory Council continued its revamp of the Commercial Division Rules on October 14, 2015, when it implemented amendments to 22 NYCRR § 202.70(b) and (c).  As we discussed in this blog when the amendments were proposed in April, the amendment to 22 NYCRR § 202.70(b) subjects actions to compel or stay domestic arbitration … Continue Reading

Justice Friedman Allows Breach of Fiduciary Duty Claim to Proceed Against Corporate Directors Under Delaware Law

In AP Services, LLP v. Lobell et. al, No. 651613/2012, 2015 NY Slip Op 31115(U) (N.Y. Sup. Ct. June 19, 2015) (argued Feb. 21, 2014), Justice Friedman, applying Delaware Law, denied a motion to dismiss plaintiff AP Services, LLP’s first cause of action alleging breach of fiduciary duty against the defendants, former directors of Paramount … Continue Reading

Pay to Play: Appellate Division Upholds Ruling that Payment is Required to Qualify for Champerty Safe Harbor Provision

In Justinian Capital SPC v. WestLB AG, etc. et al., 2015 N.Y. Slip Op. 04381 (1st Dep’t May 21, 2015), the Appellate Division affirmed the February 25, 2014 decision of the New York County Supreme Court, Commercial Division (Kornreich, J.), 43 Misc. 3d 598, holding that actual payment for the transfer of rights to a … Continue Reading

Commercial Division Practice Continues to Shift Towards Federal Standards with Four Proposed Rule Changes

The Commercial Division Rules are once again the subject of several proposed amendments, as detailed below.  While these proposals are not as far-reaching as some of the rule changes enacted in 2014, they nonetheless raise important practice considerations for parties and their counsel engaged in practice before the Commercial Division.  Expect to see these new … Continue Reading

New Commercial Division Rule Seeks to Streamline Privilege Log Requirements for Litigants

Effective September 2, 2014, the New York Supreme Court implemented a major change to the Commercial Division rules governing privilege logs submitted during the course of litigation. (See New York Supreme Court, Administrative Order of the Chief Administrative Judge of the Courts: Rule 11-b (July 8, 2014)).  Previously litigants were required to produce a traditional … Continue Reading

Commingling and Personal Piggy Bank Leads to Summary Judgment on Veil Piercing Claims

In Webmediabrands, Inc. v. Latinvision, Inc., No. 601048/2010, the Supreme Court (J. Friedman)  pierced the corporate veil at the summary judgment stage. Under New York law, the factors used to determine whether a court should allow plaintiffs to pierce the corporate veil include “a failure to adhere to corporate formalities, inadequate capitalization, commingling of assets, … Continue Reading

“Get Outta Here!”: The Court Of Appeals Finds that New York Judges May Sua Sponte Dismiss Cases on Forum Non Conveniens Grounds in Limited Circumstances

In Mashreqbank PSC v. Ahmed Hamad Al Gosaibi & Bros. Co., 2014 N.Y. Slip Op. 02381, the New York Court of Appeals ruled that a court may sua sponte decide the issue of forum non conveniens so long as it allows the parties to brief and argue the matter.  The Court of Appeals further found … Continue Reading

Commercial Division Justices Oing and Scarpulla Participate In New Pilot Program

The New York Supreme Court, Commercial Division, has announced that two of its judges, Justices Oing and Scarpulla, will participate in a new program strongly encouraging use of hyperlinks in submissions to the Court.  The hyperlinks are to be utilized in all affidavits, affirmations, exhibits within those affidavits and affirmations, and memoranda of law that … Continue Reading

The Commercial Division Reviews Arbitrations: Three Recent Decisions Clarify Standards For Actions Brought Pursuant To Article 75 of the CPLR

Several recent decisions by Commercial Division Justices, two of them affirmed by the First Department, have clarified the limitations and standards applied in actions brought pursuant to Article 75 of the CPLR.  Article 75 permits participants in binding arbitration, irrespective of what arbitral forum they are in, to seek assistance from New York State Supreme … Continue Reading

Monetary Threshold For Commencing Cases In Manhattan’s Commercial Division Raised to $500,000

New York court officials have approved an amendment to Section 202.70(a) of the Commercial Division Rules, which will increase in the minimum monetary threshold of $150,000 to $500,000 for the commencement of lawsuits to be adjudicated in Manhattan’s Commercial Division.  The Commercial Division handles complicated commercial cases as part of the Supreme Court of New … Continue Reading

Justice Saliann Scarpulla Appointed to New York County Commercial Division

Effective Monday, February 3rd, Justice Saliann Scarpulla of the New York Supreme Court was appointed to the New York County Commercial Division.  Justice Scarpulla succeeds Justice Barbara Kapnick, who was appointed to the Appellate Division, First Department, by Governor Andrew Cuomo on January 17, 2014.  According to her judicial biography, Justice Scarpulla is a 1986 … Continue Reading

Mandatory Mediation for Every Fifth Case in New York County’s Commercial Division?

The Commercial Division Advisory Council has proposed that the court adopt a pilot program for New York County’s Commercial Division that would send every fifth newly assigned case to mediation unless the parties stipulate otherwise or one party makes a good cause showing that mediation would be ineffective or unjust.  A copy of the proposal … Continue Reading

“So You’re Saying There’s A Chance…”: Yellowstone Injunctions Alive and Well in the Commercial Division

In Burlington Coat Factory of N.Y., LLC v. Majestic Rayon Corp., No. 652511/2012, the Supreme Court (J. Kornreich) granted plaintiff Burlington Coat Factory’s (“Burlington”) motion for an injunction to stay and toll the expiration of a thirty-day default cure period and enjoin the defendant landlords Majestic Rayon Corp. and Cudge Realty, LLC (“Landlords”) from terminating … Continue Reading

First Department Sustains Connecticut Unfair Trade Practices Act and Other Claims Against Subsidiaries and Officers of Lehman Brothers Based Upon An Allegedly Improper Asset Substitution on the Eve of the Lehman Brothers Collapse

In Aetna Life Insurance Company v. Appalachian Asset Management Corp, et al., 2013 Slip Op 05506 (1st Dep’t July 30, 2013) the Appellate Division affirmed the April 13, 2012 decision of the New York County Supreme Court, Commercial Division (Ramos, J.), which sustained claims by Aetna Life Insurance Company (“Aetna”) for beach of the Connecticut … Continue Reading

Additional Price of a Judicial Reaction: Waiver of One’s Contractual Right to Arbitration

In Volpe v. Interpublic Group of Companies, Inc., No. 652308/2012, Judge Eileen Bransten denied plaintiff Ray Volpe’s (“Volpe”) motion to compel arbitration and granted defendant The Interpublic Group of Companies, Inc.’s (“IPG”) cross-motion to stay arbitration.  Citing New York common law, the Court held that Volpe waived his contractual right to arbitration by manifesting an … Continue Reading

Unrealized Gains: Integrated Employment Agreement Bars Employee’s Recovery of Additional Compensation

In Volpe v. Interpublic Group of Companies, Inc., No. 652308/2012, Judge Eileen Bransten granted defendant The Interpublic Group of Companies, Inc.’s (“IPG”) motion to dismiss plaintiff Ray Volpe’s (“Volpe”) complaint, finding that Volpe’s employment agreement with IPG barred him from recovering revenue generated from an agreement he allegedly facilitated between IPG and Facebook, Inc. (“Facebook”). … Continue Reading

All Residential Mortgage Backed Securities Cases To Be Assigned To Justice Friedman of the Commercial Division

As reported yesterday in the New York Law Journal, Justice Marcy Friedman of the Commercial Division in Manhattan will now be assigned any new case filed in New York Supreme Court that alleges fraud or misrepresentation arising out of the creation or sale of residential mortgage backed securities (“RMBS”) pursuant to a May 23 Order … Continue Reading

Transfer $8 Million Out Of Accounts In New York? That Action Alone Is Not Sufficient To Establish Personal Jurisdiction

In Henkel v. Masiero, Index No. 650425/2012 (N.Y. Sup. Ct., N.Y. Cnty. Mar. 18, 2013) (the “Opinion”), the Supreme Court (J. Bransten) granted the defendants’ motion to dismiss for lack of personal jurisdiction on the grounds that one telephone call with a bank was not sufficient to establish jurisdiction under Section 302(a)(1) of the CPLR, … Continue Reading
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