In Black Diamond Aviation Grp. LLC v. Spirit Avionics, Ltd., 70 Misc. 3d 823 (Sup. Ct. Suffolk Cnty. 2020), Justice James Hudson of the Suffolk County Commercial Division limited the reach of New York’s long-arm statute, CPLR 302, in granting a motion to dismiss for lack of personal jurisdiction where the contract at issue was negotiated via emails between Ohio and Connecticut and no business was performed in New York. The plaintiff argued that the Court had jurisdiction over defendant pursuant to CPLR 302(a)(1), which provides, in pertinent part, that a party will be subject to the jurisdiction of New York courts if it is a non-domiciliary who transacts business within New York or contracts anywhere to supply goods or services in New York. The plaintiff alleged that because the defendant’s subcontractor performed certain work in New York, the defendant was subject to jurisdiction under CPLR 302(a)(1). In rejecting this argument, the Suffolk County Commercial Division follows a familiar line of U.S. Supreme Court jurisprudence limiting a court’s jurisdictional reach where the defendant has no connection to the forum state. Continue Reading
COVID-19 has ushered in a new era for litigation in the Commercial Division. Here are the key developments litigants should be aware of.
Remote Appearances and No Paper Copies
In May 2020, e-filing in the Commercial Division resumed in earnest, with a few important differences from the status quo ante:
- Most, if not all, appearances in the Commercial Division are proceeding remotely via Microsoft Teams. While the Commercial Division encourages parties to conduct virtual evidentiary hearings and non-jury trials, in-person jury trials will resume on March 22, 2021.
- Per Administrative Order AO/267/20, paper copies of motions and other documents in e-filed cases are not required in the Commercial Division until further notice. Several Commercial Division Justices in New York County, including Justice Schecter, Justice Masley, and Justice Ostrager, have updated their individual rules to note that working copies are no longer required.
- Foreclosure proceedings and eviction proceedings continue to be subject to restrictions and modified procedures pursuant to various statutes, Executive Orders, and/or Administrative Orders from the Court.
Statutes of limitation were “tolled” in New York by Executive Order No. 202.8, issued by Governor Andrew M. Cuomo on March 20, 2020 in response to the COVID-19 pandemic. Over the next six-and-a-half months, that toll was renewed by further executive order every 30 days until, on October 4, 2020, the Governor issued Executive Order No. 202.67, announcing that the tolling order would be extended for only one more 30-day period—“until November 3, 2020, and after such date [statutes of limitation] will no longer be tolled.” Continue Reading
On Sunday, March 22, 2020, pursuant to Administrative Order AO/78/20 of Chief Administrative Judge Lawrence Marks, the New York Unified Court System took the drastic step of suspending all filings (both paper and e-filing) in all but a select few types of cases in all New York Courts. The Order provides that:
…effective immediately and until further order, no papers shall be accepted for filing by a county clerk or a court in any matter of a type not included on the list of essential matters attached as Exh. A. This directive applies to both paper and electronic filings. Continue Reading
In In re Everquote, Inc. Securities Litigation, 2019 N.Y. Slip Op. 29242, No. 651177/2019, 2019 WL 3686065 (Sup. Ct. N.Y. Cnty. Aug. 7, 2019), Justice Andrew Borrok of the New York County Commercial Division stayed discovery pending a motion to dismiss a federal securities class action pursuant to the Private Securities Litigation Reform Act of 1995 (the “PSLRA”), diverging from the handful of state courts that have grappled with that statute’s application since the Supreme Court’s ruling last year in Cyan, Inc. v. Beaver County Employees Retirement Fund, 138 S.Ct. 1061 (2018) (“Cyan”). The PSLRA provides for an automatic discovery stay pending adjudication of motions to dismiss private securities actions, and has been interpreted to be a procedural mechanism meant to curb litigation abuses in securities cases. See 15 U.S.C. § 77z(b)(1). In his decision, Justice Borrok joined the ever-growing list of judges tasked with deciding whether such mechanisms apply to state court securities litigation in the wake of Cyan. Continue Reading
Pursuant to New York Civil Practice Law and Rules § 306-b, a plaintiff is required to serve a summons and complaint within 120 days of commencing an action. Although a court may grant an extension of this deadline for good cause shown or in the interests of justice, Judge Richard M. Platkin recently found that neither justified an extension of the plaintiff’s time to serve its summons and complaint in Plank, LLC v. Dutch Village, LLC, et al., 62 Misc. 3d 1220(A) (N.Y. Sup. Ct. Feb. 7, 2019). In that case, the Court rejected any argument that the plaintiff’s failure to serve the complaint was excused by its pro se status, especially given that New York prohibits limited liability companies like the plaintiff from appearing pro se. Continue Reading
During her annual State of Our Judiciary speech on February 26, 2019, Chief Judge Janet DiFiore announced that the Commercial Division would be expanding to Bronx County. As stated by Chief Judge DiFiore, the expansion is “in recognition of the economic resurgence taking place in the Bronx” and “the number of commercial cases filed in Bronx Supreme Civil.” Although the change was effective on April 1, 2019, the Commercial Division has yet to announce which justices will be assigned to these new Commercial Division openings or amend the Commercial Division Rules to provide for, among other things, a jurisdictional threshold for the Commercial Division in Bronx County.
In Kyowa Seni, Co., Ltd. v. ANA Aircraft Technics, Co., Ltd., Docket No. 650589/2017, 2018 WL 3321410 (N.Y. Sup. Ct. July 5, 2018), Justice Saliann Scarpulla of the New York County Commercial Division joined in a long line of New York federal cases that have vitiated the registration theory of jurisdiction. Continue Reading
In an effort to streamline litigation in the Commercial Division, the Commercial Division Advisory Council has continued with its revisions to the Commercial Division Rules by recently implementing one new rule encouraging early adjudication on threshold issues, and revising another rule to approve the use of technology-assisted review in discovery. Continue Reading
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