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 rules take effect later this year. Continue Reading
On Tuesday, April 7, 2015, Justice Anil C. Singh of the New York Supreme Court was appointed to the New York County Commercial Division. Justice Singh succeeds Justice Melvin Schweitzer, who retired last year. According to his judicial biography, Justice Singh is a 1986 graduate of Antioch School of Law in Washington, D.C. Continue Reading
The past year has been a busy time for anyone keeping up with the Rules for the Commercial Division of the New York State Court System. The Commercial Division Advisory Council, led by Justice Eileen Bransten, has been pushing through various reformative measures, most of which were first recommended in the June 2012 Report and Recommendations to the Chief Judge of the State of New York of the Chief Judge’s Task Force on Commercial Litigation in the 21st Century. Below is a brief summary of the new rules, which are already in effect or take effect on April 1, 2015. Continue Reading
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 “document-by-document” privilege log that included a separate entry for each document being withheld, pedigree information for that document, and the specific privileges insulating the document from production. Under Rule 11-b of the Rules of Practice for the Commercial Division, Litigants can instead produce “categorical” privilege logs. Categorical privilege logs designate privileged documents by category, rather than in an item-by-item list.
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, use of corporate funds for personal use,” an “overlap in ownership and directorship,” and “common use of office space and equipment.” For this reason, corporate veil piercing or alter ego claims of liability are fact-laden and, typically, are not considered well suited for resolution at the summary judgment stage.
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 that the mere transfer of money through a New York-based bank account was not sufficiently compelling to keep an otherwise foreign case in a New York court.
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 are filed electronically through the New York State Courts Electronic Filing System (“NYSCEF”) for cases that are assigned to Justices Oing and Scarpulla.
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 Court judges under certain circumstances.
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 York State. The new rule is effective February 17, 2014.
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 graduate of Brooklyn Law School. After law school, Justice Scarpulla was a Court Attorney for Justice Alvin F. Klein (1986-1987), a Litigation Associate at Proskauer Rose LLP (1988-1993), Counsel/Senior Litigator at the FDIC New York Legal Services Office (1993‑1997), and Senior Vice President and Bank Counsel at Hudson Bank (1997-1999). From 1999 to 2001, Justice Scarpulla was a Court Attorney for her now colleague in the New York County Commercial Division, Justice Eileen Bransten.