Don’t Forget the Details: How Conclusory Pleadings Can Thwart Nonparty Disclosure
Nonparty subpoenas are a useful discovery tool in commercial disputes. Particularly when the dispute involves access to or control over…
February 22, 2024
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February 22, 2024
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Altering a Confession of Judgment? Think Again!
A confession of judgment has often been viewed as an important tool in settling a litigation or finalizing a transaction.…
February 15, 2024
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February 15, 2024
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No Deceit, No Defeat: Commercial Division Enforces Broad General Release
A recent decision from Justice Fidel Gomez of the Bronx County Commercial Division, 1125 Morris Ave. Realty LLC v Title…
February 08, 2024
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February 08, 2024
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Where’s the Beef? Causation and Culpability Are Fatal Pitfalls in Zaycon Foods Lawsuit
When representing an aggrieved plaintiff in a commercial matter, there are certain business torts that I tend to rely on…
December 22, 2023
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December 22, 2023
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The Evidence Behind E-SIGS
The COVID-19 pandemic has unsurprisingly resulted in many people in the business community, including lawyers, transacting business remotely. With that uptick…
December 01, 2023
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December 01, 2023
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What’s Your Contribution? A Cautionary Tale Surrounding Third-Party Complaints
As many practitioners know, it is common to dismiss a complaint for pleading defects that are readily apparent. However, another…
November 16, 2023
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November 16, 2023
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If the Service Was Poor, You’ll Have to Do More – How Much Diligence Is Due for Affix and Mail Service?
The burden of establishing personal jurisdiction over a defendant rests with the plaintiff. Service of process is a necessary component…
November 02, 2023
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November 02, 2023
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Keep it Secret, Keep it Safe: Commercial Division Protects Corporate Client Communications Under the Common-Interest Doctrine
The attorney-client privilege is an old and well-known evidentiary privilege. It fosters candor between attorney and client, protects confidential information…
August 31, 2023
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August 31, 2023
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Ready or Not, Here I Come: The Expansion of Substitute Service by Email
The old game of “hide-and-seek” brings many of us back to our childhood as one of our favorite ways to…
August 18, 2023
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August 18, 2023
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To Disclose or Not to Disclose: The Importance of Putting Everything in Writing
Section 3101(a) of the CPLR provides for the “full disclosure of all matter material and necessary in the prosecution or…
August 03, 2023
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August 03, 2023
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“C’mon Ref!” – Right and Wrong Ways to Challenge the Call in a Supervised Disclosure Proceeding
Section 3104 of the CPLR authorizes courts to appoint a judge or referee to supervise disclosure proceedings. The appointed referee…
June 08, 2023
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June 08, 2023
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Commercial Division Says “No Chance” on “Second Chance” Deposition of a Corporate Representative
Commercial Division Rule 11-f establishes that a party may serve a notice or subpoena on any legal or commercial entity.…
May 25, 2023
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May 25, 2023
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Signed, Sealed, Delivered
Under Section 216.1(a) of the Uniform Rules for Trial Courts (“Section 216.1(a)”), courts are authorized to seal documents “upon a…
April 28, 2023
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April 28, 2023
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Rule Change Redux, 2022 Edition
Did you know that the New York State United Court System publishes an annual report covering the advances, challenges, and…
April 14, 2023
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April 14, 2023
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Navigating Appearances Before Commercial Division Justice Timothy S. Driscoll: Tips for Young Lawyers and A Refresher for Seasoned Practitioners
As any practitioner litigating a case before the Commercial Division knows, and as we have mentioned time and again on…
March 30, 2023
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March 30, 2023
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Discovery Sanctions Alert: Failure to Include Withheld Items on Privilege Log Lands Party in Hot Water
Commercial Division Rule 11-b governs a party’s obligation to produce a log of documents withheld on the basis of privilege. …
March 02, 2023
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March 02, 2023
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A Reminder From The Commercial Division That Disloyalty Doesn’t Pay … Literally!
It is no secret that employees are often the most likely people to misappropriate an employer’s confidential information or valuable…
February 03, 2023
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February 03, 2023
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Commercial Division Grants $1 Million Punitive-Damage Award for Diversion of Company’s IP in Breach of Fiduciary Duty
A recent decision from the Manhattan Commercial Division reminds us that although punitive damages are generally not recoverable in New…
January 22, 2023
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January 22, 2023
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Commercial Division Says Not Every Storm Triggers Force Majeure
A recent decision from Justice Robert Reed of the Manhattan Commercial Division in J.P. Morgan Ventures Energy Corporation v. Miami…
January 05, 2023
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January 05, 2023
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LIMITS ON MOTIONS IN LIMINE: A NEW PROPOSAL TO AMEND COMMERCIAL DIVISION RULE 27
An increasingly commonplace procedural mechanism for narrowing evidentiary issues before a hearing begins is the motion in limine. A new proposal proffered…
December 15, 2022
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December 15, 2022
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Proposed Commercial Division Rule Change Gives Remote Proceedings Even More Staying Power
It is no secret by now that remote proceedings are here to stay. Driven at first by the safety protocols…
November 10, 2022
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November 10, 2022
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Note to ComDiv Practitioners: “Learn Your Rules, You Better Learn Your Rules!”
For commercial practitioners who happen to be fans of the TV series “The Office,” Dwight Schrute’s “Learn Your Rules, You…
October 21, 2022
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October 21, 2022
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Commercial Litigation in New York State Courts, 5th Edition, Chapter 39, “Practice Before the Commercial Division”: A Review
As frequent readers of this blog are no doubt aware, the ten-volume practice treatise entitled Commercial Litigation in New York…
October 13, 2022
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October 13, 2022
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The Attorney-Client Privilege (Re) Re-Visited
It is commonplace knowledge that the attorney-client privilege protects confidential communications relating to legal advice between a client and an…
September 23, 2022
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September 23, 2022
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Rule Change Alert: Readability Is Key For Responsive Pleadings Under New Rule 6 (d)
As practitioners and readers of this blog are aware, responsive pleadings are foundational documents prepared at the earliest stage of…
September 09, 2022
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September 09, 2022
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Civility at Depositions: Court Orders Veteran Attorneys to Play Nice in the Sandbox
When the Court orders you to attend a Continuing Legal Education (CLE) class on civility “for the harm [you’ve] done…
August 12, 2022
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August 12, 2022
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Have Commercial Dispute, Will Travel (to New York)
A few years back, in a post entitled What the Commercial Division Has Done for Us Lately, we commented on…
July 28, 2022
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July 28, 2022
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Counsel May Not Evade Word Limitations by Incorporating Affidavits in Place of a Statement of Facts
Litigation in the Commercial Division is efficient and effective in part because its judges strictly enforce the Commercial Division Rules. …
July 14, 2022
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July 14, 2022
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Be Careful What You Email – You Could Be Entering Into a Settlement Agreement!
Every commercial litigator is aware of the warning “be careful what you put in writing.” In fact, this expression is…
June 17, 2022
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June 17, 2022
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A RICO Claim in an Ordinary Business Dispute? Not So Fast, Says the Commercial Division
Courts continue to refer to federal Racketeering Influenced and Corrupt Organizations Act (“RICO”) claims as “potent weapons” that are equivalent…
June 07, 2022
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June 07, 2022
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Narrow Escape of Expedited Judgment Under CPLR 3213 Due to Ambiguous Guaranty
As readers of this blog are aware—click here, here, here, and here for related posts—the CPLR 3213 motion for summary…
May 13, 2022
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May 13, 2022
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A New(ish) Face in the Bronx County Commercial Division
The Commercial Division in Bronx County hasn’t been around all that long, opening its doors for adjudication in September 2019…
May 05, 2022
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May 05, 2022
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Updates to Commercial Division Rules Concerning Discovery of ESI
As we approach the 30th Anniversary of New York’s Commercial Division, it’s fair to say that over those 30 years,…
April 14, 2022
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April 14, 2022
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An Interesting Tale of New York’s One-Action Rule
As mortgage loan transactions continue to become increasingly complex, lenders often worry about the remedies they have if borrowers fail…
March 31, 2022
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March 31, 2022
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Oral Modifications to Written Agreements? Better Get Them in Writing Says the Commercial Division
In Castle Restoration & Constr., Inc. v Castle Restoration, LLC, Suffolk County Commercial Division Justice Elizabeth H. Emerson refused to…
March 21, 2022
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March 21, 2022
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Buyer’s Remorse Does Not Constitute Duress, Holds First Department
A recent decision from the First Department reminds us that New York courts are not sympathetic to duress claims when…
March 04, 2022
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March 04, 2022
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A New Opportunity to Settle Your Case Quickly with Your Adversary on the Way to Court
It’s no secret to anyone litigating in the Commercial Division over the past couple years during the COVID era that…
February 25, 2022
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February 25, 2022
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Limitations on the Rights of Minority Owners in Closely-Held Businesses
In an earlier post, I offered a broader-than-usual overview of certain key rights that a minority owner holds in a…
February 10, 2022
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February 10, 2022
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Commercial Division Says, “Nope, Not Enough” When Using Local Counsel to Establish Personal Jurisdiction
Commercial transactions often involve parties from different states. When a dispute arises between diverse parties, the question of whether a…
February 03, 2022
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February 03, 2022
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Asserting an Equitable Defense or Counterclaim? “Waive” Your Jury Goodbye!
Most New York practitioners are aware that certain causes of action are triable by a jury, while other claims are…
January 27, 2022
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January 27, 2022
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The Rights of Minority Owners in Closely-Held Businesses
The pages of this blog are filled with cases pitting a minority owner of a closely-held business—most often a corporation…
January 20, 2022
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January 20, 2022
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Commercial Division Says Plaintiffs Can’t Have Their Cake and Eat it Too When it Comes to Breach and Anticipatory Breach
When a party to a contract repudiates, the non-repudiating party is faced with two options: (1) treat the repudiation as…
January 13, 2022
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January 13, 2022
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All You Need Is Love… And An Articulable Nexus Of Fraud
What can you do when the parties you are suing are effectively judgment-proof? Oftentimes, plaintiffs will try to go after…
January 06, 2022
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January 06, 2022
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Apropos of the Recent Omicron Outbreak, Remote Depositions Are Here to Stay in New ComDiv Rule 37
Much ink has been spilled over the last couple of years, including here at New York Commercial Division Practice, on…
December 24, 2021
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December 24, 2021
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Defendants Get Lit Up by the Court on the Fifth Day of Hanukkah
It’s not often that a lawsuit in the Commercial Division between sophisticated parties to an arm’s-length business transaction warrants a…
December 10, 2021
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December 10, 2021
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Oops! They Did it Again: New York Courts Continue to Dismiss Lawsuits Based on Contractual Disclaimers
A few weeks ago, I blogged about the Arco Acquisitions, LLC, v Tiffany Plaza LLC et al. decision, in which…
December 03, 2021
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December 03, 2021
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Prejudgment Attachment Orders: High Stakes, Higher Burden
In expensive lawsuits involving fraud claims, the temptation of a defendant to play hide and seek with its assets can…
November 25, 2021
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November 25, 2021
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Fraud Claims Dismissed Based on the “As Is, Where Is, and With All Faults” Contractual Provision
Nobody likes fraud claims asserted against them. Thankfully for defendants, fraud claims are notoriously difficult to prove, and defendants often…
November 18, 2021
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November 18, 2021
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New Amendment to ComDiv Rule 3(a) Provides More Options to Litigants Seeking Alternative Dispute Resolution
In recent years, the New York court system has endorsed alternative dispute resolution (“ADR”) as a way to increase efficiency…
November 11, 2021
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November 11, 2021
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Joint Venture Agreements: For Better or For Worse; In Profit or In Loss
Just like a bride and groom vow to join together for better or for worse, commercial parties joining together through…
November 04, 2021
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November 04, 2021
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Necessity Is the Mother of Innovation: The Option of Virtual Evidentiary Hearings and Non-Jury Trials Goes from Provisional to Permanent
As we all are acutely aware, during the last 21+ months, the normally slow-to-change practice of law has been thrust…
October 28, 2021
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October 28, 2021
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Avoiding Judicial Conflicts of Interest: New ComDiv Rule 35 Will Require Corporate Disclosure Statements
Aficionados of Commercial Division practice know that the ComDiv rules originally were — and, as evidenced by an Administrative Order…
October 22, 2021
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October 22, 2021
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The Dynamic Duo of Proportionality and Reasonableness: Another New Proposal From the Commercial Division Advisory Council
As we’ve mentioned time and again on this blog, since its inception in 1995, New York’s Commercial Division has continued…
October 14, 2021
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October 14, 2021
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Even as Pandemic Wanes, Remote Depositions Remain the New Normal
In March 2020, the New York State Courts and attorneys’ offices all over the state shut down as part of…
October 07, 2021
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October 07, 2021
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A Wave of E-Discovery Change: The Latest Proposal from the Advisory Council
New York’s Commercial Division has continuously taken the lead as an innovative forum, proposing rule changes that are aimed at…
September 30, 2021
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September 30, 2021
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New York Yankees Up to Bat in the Commercial Division Against Former Minor League Affiliate
A few weeks ago, my colleague, Madeline Greenblatt, wrote a blog about a $1.75 million breach of contract action brought…
September 23, 2021
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September 23, 2021
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New Supreme Court Rule on Summary Judgment Motions: “Just the Facts, Ma’am”
Practitioners often choose to practice in the Commercial Division because of its well-documented efficiencies. Thus, many were happy to hear…
September 11, 2021
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September 11, 2021
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When Faced with Questions of Arbitrability, the Suffolk County Commercial Division Passes the Ball to the Arbitrator
In a recent Commercial Division case, Justice Elizabeth H. Emerson was asked to determine whether certain parties were bound by…
September 03, 2021
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September 03, 2021
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When Wrongdoing Isn’t Wrong Enough: Lack of Culpable Conduct Results in Reduced Judgment
In recent news out of the world of Formula 1 racing, a tight battle between seven-time World Champion, Lewis Hamilton,…
August 26, 2021
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August 26, 2021
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First Step in Successfully Fending off a Yellowstone Application: Be Sure To Give Valid Notice of Default
Several weeks back, we reported on an apparent uptick in commercial lease disputes over the last 18 months in this…
August 19, 2021
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August 19, 2021
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Bob Dylan Takes Breach of Contract Action Out with Just One Punch
A reminder to practitioners: when a contract is unambiguous, the submission of a hurricane of extrinsic evidence to “interpret” it…
August 12, 2021
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August 12, 2021
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Reminder to Practitioners: Gender Neutral Language Required
Commercial Division justices have been trailblazers in the bench’s efforts to improve the diversity and inclusiveness of the attorneys appearing…
August 05, 2021
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August 05, 2021
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Free Rein Venue Choices? Not So Fast Says the Commercial Division
The principles of jurisdiction and venue are paramount when determining not only where a proceeding will be conducted, but also…
July 29, 2021
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July 29, 2021
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Defenses and Counterclaims In a CPLR 3213 Action Are Only Successful If They’re “Inseparable”
In one of my previous posts, I discussed the basic requirements for bringing a CPLR 3213 motion for summary judgment…
July 21, 2021
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July 21, 2021
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Too “Privileged” To Be Held Liable for Defamation, Says the Commercial Division
“Relevant statements made in judicial or quasi-judicial proceedings are afforded absolute protection so that those discharging a public function may…
July 09, 2021
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July 09, 2021
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The Importance of Understanding The Contractual Limits of Restrictive Covenants (Part II)
solicitIn one of my first posts, entitled Restrictive Covenants: The Importance of Understanding Their Contractual Limits, I wrote about a…
July 01, 2021
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July 01, 2021
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Commercial Lease Disputes Becoming a Little More Frequent than “From Time to Time”
I think it’s fair to say that there’s been an uptick in litigation involving commercial lease disputes and retail property…
June 17, 2021
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June 17, 2021
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A Gentle Reminder to Get Specific with Your General Releases
[I] irrevocably release and forever discharge [the Company] . . . from any and all actions, causes of action, suits,…
June 10, 2021
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June 10, 2021
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Can You Assign Your Rights Under an Insurance Contract that Prohibits Assignment? Only for Prior, Fixed Losses
Parties to a contract generally can include in their agreement a provision preventing assignment of the agreement’s rights and…
June 03, 2021
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June 03, 2021
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Commercial Division Denies Application to Enforce Stipulation of Settlement for Lack of Standing
The Full Faith and Credit Clause of the United States Constitution provides that “Full Faith and Credit shall be given…
May 28, 2021
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May 28, 2021
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Commercial Division Again Rejects Commercial Tenant’s Impossibility / Frustration of Purpose Defenses in the Wake of COVID-19
Earlier this year, my colleague, Madeline Greenblatt, wrote about the emergence of a new body of case law emanating from…
May 27, 2021
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May 27, 2021
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“Single Breach” vs. “Continuing Wrong”; the Continuing Wrong Doctrine Prevails, Saving Plaintiff’s Claim from Dismissal
A cause of action accrues, triggering the commencement of the statute of limitations period, when “all of the factual circumstances…
May 14, 2021
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May 14, 2021
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Motions to Seal in the Commercial Division Require Specificity
Under the Commercial Division Rules, a court may seal court records “upon a written finding of good cause.”[1] So, what…
May 07, 2021
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May 07, 2021
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“I’ve Been Hacked!” (OK, But Have You Been Damaged?)
A critical inquiry to be considered at the outset of any litigation is whether the party seeking relief is, in…
April 22, 2021
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April 22, 2021
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Mandatory Settlement? Close, But Not Quite.
In December 2020, the New York Law Journal commented on the measures the New York State court system would enact…
April 09, 2021
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April 09, 2021
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General Statement of Indebtedness is Sufficient to Restart Statute of Limitations Despite Ambiguities
The statute of limitations to recover on a breach of contract is six years. Parties can extend that limitations periods…
March 26, 2021
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March 26, 2021
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The Ball is in Who’s Court?: Commercial Division Denies Plaintiffs’ Attempt to Invalidate Forum-Selection Clause in Promissory Notes
Most commercial contracts contain a choice of law provision and/or forum-selection clause. Under New York law, it is well recognized…
March 19, 2021
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March 19, 2021
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NY Practice Tip: Protecting Your Client Against an Improper Notice to Admit
The CPLR 3123 notice to admit can be a useful device in litigation. Its primary purpose is to expedite a…
March 12, 2021
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March 12, 2021
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Court explores the balance between a lawyer’s obligation to investigate the facts, and a lawyer’s reliance on what the client chooses to disclose or not disclose
Pursuant to Part 130 , attorneys are obligated to undertake an investigation of a case. But is an attorney…
March 09, 2021
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March 09, 2021
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The Commercial Division Continues to Rule Against Businesses Seeking Financial Relief Amidst COVID-19 Shutdowns
We all hoped ringing in the New Year would mean leaving some of the hardships from the COVID-19 pandemic behind…
March 02, 2021
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March 02, 2021
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Depositions in shorts after the pandemic? Remote depositions are likely becoming the norm, but dress-down shouldn’t
The legal industry has adapted rather quickly in order to minimize the pandemic’s impacts on the practice of litigation by…
February 18, 2021
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February 18, 2021
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COVID coverage for business losses? “No,” says the first New York court to address the issue of whether a business interruption policy covers losses due to COVID-19
COVID-19 continues to generate litigation in a variety of contexts in the Commercial Division. Only two weeks ago did our colleague…
February 12, 2021
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February 12, 2021
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Administering Justice Remotely in the Westchester County Commercial Division
A quick timeout this week from some of our more substantive content here at NY ComDiv Practice to report on…
February 05, 2021
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February 05, 2021
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The Secret’s Out: COVID-19 May Not Excuse Commercial Rent Obligations
The lingerie brand Victoria’s Secret (“VS”) has struggled in recent years. VS’ overtly sexy aesthetic has failed to keep up…
January 28, 2021
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January 28, 2021
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Innovation Becomes the Norm: Commercial Division Rules Shape Revised Uniform Rules for the Supreme Court and County Court
The New York Commercial Division was created in 1993 “to test whether it would be possible, by concentrating on…
January 18, 2021
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January 18, 2021
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Commercial Division Recognizes Successor Liability as Separate Cause of Action, Not Just a Theory of Liability
“Successor liability”, is it a theory or distinct claim or cause of action? In a recent decision, Justice Sherwood analyzed…
January 14, 2021
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January 14, 2021
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Work Performed in the Forum State May Be Insufficient to Establish Personal Jurisdiction Over Out-Of-State Defendants
Recently, Justice James Hudson issued a decision testing the limits of New York’s Long Arm Statute. The Court was tasked…
December 18, 2020
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December 18, 2020
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Amended ComDiv Rule 6: The Practice of Law at Your Fingertips (literally)
The New York Commercial Division continues to be a beacon of innovation with a recent amendment to ComDiv Rule 6,…
December 03, 2020
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December 03, 2020
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Expect Careful Scrutiny of Contractually Shortened Statutes of Limitations
The statutes of limitations set forth in the CPLR are default rules, and parties generally are free to modify default…
November 18, 2020
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November 18, 2020
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Withholding Discovery Based On Common Interest Privilege: Can You Prove “Reasonably Anticipated” Litigation?
“Reasonably anticipated litigation” is a necessary element you need to show to benefit from the common interest privilege in your…
November 12, 2020
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November 12, 2020
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To Redact, or Not to Redact, That is the Question
Summons and Complaint Service of Process Answer Discovery ☐ You now have to collect, review and produce documents pursuant to…
October 23, 2020
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October 23, 2020
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Avoiding Confusion with the 8-Factor Test for Trademark Infringement
Trademark registration is essential for small business owners who are looking to build and protect the brand within their community.…
October 19, 2020
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October 19, 2020
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ComDiv Rule 1 Amended: Request to Appear Remotely, Avoid Infection, and Save Your Clients a Buck
To be sure, much has been reported on here at New York Commercial Division Practice concerning Commercial Division innovation —…
September 24, 2020
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September 24, 2020
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Unconscionability Defense Fails to Raise Issue of Fact – Legal Woes for the Whistleblower who Turned Down his Award
In 2015, our colleagues in the white-collar criminal defense bar braced for the impact of a memorandum penned by then…
September 16, 2020
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September 16, 2020
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NY Courts Tackle New Issues in a Post-COVID Court: Modification of Pre-COVID Court Orders
As New York courts reopen and the mandatory stay-at-home order is lifted, what remains unclear is how the numerous Executive…
September 15, 2020
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September 15, 2020
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At-Home Sweet At-Home: Exercising General Jurisdiction Over a Foreign Corporation
Your client has just asked you to commence an action against a corporate entity in a New York state court. …
September 03, 2020
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September 03, 2020
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Bidding Adieu to Another Manhattan Commercial Division Justice
The Manhattan Commercial Division lost a gem of a jurist last month when Governor Cuomo appointed Justice Saliann Scarpulla to…
August 21, 2020
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August 21, 2020
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Preliminary Injunctions: Jurisdictional Issue Undermines Likelihood of Success on the Merits
Paramount to obtaining an often necessary preliminary injunction pursuant to Article 63 of New York’s Civil Practice Law and Rules…
August 18, 2020
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August 18, 2020
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Dismissing Fraud Claims on Statute of Limitations Grounds—They Better Know the Facts
Attorneys do a lot for their clients. They offer counsel, provide legal advice, and work hard to advocate for their…
August 06, 2020
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August 06, 2020
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Commercial Division Finds Allegations of Complete Control Insufficient to Support a Veil-Piercing Theory
A familiar fact pattern: ParentCo is the owner and controlling shareholder of SubCo. ParentCo completely controls SubCo. The two companies…
July 23, 2020
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July 23, 2020
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Commercial Division Holds Nonsignatories Are Bound By Agreement’s Arbitration Clause
“Read before you sign”, is what we counsel our clients, since we all know that courts will bind one contractually…
July 20, 2020
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July 20, 2020
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Res Judicata: Avoiding Preclusion Confusion in Derivative Litigation
A few weeks ago, my colleague Sonia Russo blogged about how shareholders seeking to bring successive derivative actions should be…
July 14, 2020
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July 14, 2020
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Forum Non Conveniens – The Recut Gem of Motions to Dismiss
Foreign cities, thieves, and millions of dollars’ worth of missing diamonds. This may sound like the trailer for this summer’s…
June 29, 2020
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June 29, 2020
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New York’s Long-Arm Statute Thwarts Dismissal In International Shareholder Derivative Action
Undoubtedly, unsuspecting foreign corporations may find themselves having business connections in New York and subject to the jurisdiction of New…
June 15, 2020
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June 15, 2020
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The Virtual Practice of Law Is Becoming More Real Than Virtual
At this point, after nearly three months of practicing law virtually from home, I think it’s fair to say that…
June 04, 2020
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June 04, 2020
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First Department Affirms Ruling on Scope of “Insured vs. Insured” Exclusion to D&O Policy, Gives Cause to Consider a Creditor Trust
Disputes over the scope of insurance coverage are common fixtures in the Commercial Division Courts. Earlier this month, the First…
May 28, 2020
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May 28, 2020
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Commercial Division Denies Pfizer’s Motion To Dismiss, Holds Allergan’s Claims for Defense Costs Are Ripe
It’s back to business as usual for Commercial Division Justice Andrew Borrok, who recently issued a slew of decisions contributing…
May 17, 2020
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May 17, 2020
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Res Judicata: Shareholders Get One Bite at the Derivative Suit Apple
When filing a shareholder derivative suit, it‘s important to get the job done right the first time, as other shareholders…
May 09, 2020
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May 09, 2020
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Restrictive Covenants: The Importance of Understanding Their Contractual Limits
If supermodel Tyra Banks has taught us anything about the modeling industry, it’s that the competition is fierce. Unfortunately, one…
April 29, 2020
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April 29, 2020
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Helpful Links to Virtual Courts for Commercial Division Litigators
Three months ago very few of us regularly communicated by virtual videoconferencing. Today, it’s fast become a daily routine, and…
April 22, 2020
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April 22, 2020
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Pandemic Aftermath: The Rise Of Interstate Depositions And Discovery
With global commerce massively affected by the COVID-19 pandemic, post-pandemic litigation will undoubtedly result in a rise of interstate depositions…
April 16, 2020
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April 16, 2020
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Remote depositions in the wake of the coronavirus COVID-19 pandemic? Here’s how
The COVID-19 pandemic has had widespread impact on litigation, with some courts and most cases coming to a screeching halt. …
April 09, 2020
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April 09, 2020
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How New York Courts Are Navigating the Coronavirus Crisis
A few weeks back, my colleague Chris Clarke reported on the response of the New York court system to the…
April 09, 2020
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April 09, 2020
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Walking a Fine Line: Asserting a Claim for Mistake in a Contract Without Waiving Privilege
It works the same way in small businesses as it does in major investment firms: the executives reach agreement on…
April 02, 2020
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April 02, 2020
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Legal Malpractice: Attorneys Cannot Be Blamed for Client’s Bad Decisions
Winning at the blame game is difficult to do. This holds especially true where the “blame game” is actually a…
March 26, 2020
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March 26, 2020
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Equitable Tolling: “Estopping” the Clock from Running on Your Claims
Generally speaking, a court does not have the discretion to extend a statute of limitations. A court can, however, consistent…
March 20, 2020
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March 20, 2020
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Plaintiffs Cannot Rely on the Doctrine of Anticipatory Repudiation As Plaintiffs Are Already in Material Breach of the Contract
A life lesson you likely heard growing up applies to contracts: take a hard look at yourself before criticizing others.…
March 16, 2020
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March 16, 2020
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Court Finds No Admissible Evidence of Collusive “Mary Carter Agreement,” Suggests Parties Stop “Flogging” Each Other
Ordinarily, a defendant will not actively try to help the plaintiff prove her case. But even this fundamental principle of…
March 11, 2020
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March 11, 2020
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No Home Court Advantage for US Tennis Association: Court Finds Violation of Restraining Notice
Looks like the United States Tennis Association (“USTA”) met its match, but this time not on its own court, but…
February 20, 2020
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February 20, 2020
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Note to ComDiv Practitioners: There’s Teeth Behind Them Thar Rules
As readers of this blog know by now, we here at New York Commercial Division Practice frequently post on new, proposed,…
February 06, 2020
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February 06, 2020
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First Department Protective of High-Frequency Trading Algorithm: Considerations in Handling Discovery Requests for Propriety Code, Software, and Algorithms
As we continue to see increased litigation over electronic programs, apps, and algorithms, courts are increasingly called to consider discovery…
January 30, 2020
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January 30, 2020
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Think Before You Speak: Words and Actions Can Bind You Beyond The Terms of a Previously Agreed Upon Subcontract Agreement
Our parents taught us to think before we speak. That lesson is especially important when words or conduct could cost…
January 24, 2020
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January 24, 2020
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Commercial Division Judge Reaffirms “Most Critical” Element for Injunctive Relief: Irreparable Harm
Most litigators know that a preliminary injunction is a “drastic remedy” which is not “routinely granted.” Reading these words on…
January 19, 2020
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January 19, 2020
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Hyperlinks Requirement in the Commercial Division . . . The Latest Proposal from the Advisory Council
Following the lead of several federal courts, hyperlinks in legal briefs in the Commercial Division appear to be well on the…
January 09, 2020
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January 09, 2020
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Allegedly “(Leon) Black”-listed Former Apollo Employee Fails to State A Business Tort Claim
The line between aggressive business competition and unlawful conduct can sometimes be difficult to determine. Many different theories of tort…
January 06, 2020
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January 06, 2020
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Court Finds Buyer Not Liable for Seller Under Successor Liability Theory
When buying a business, purchasers must take into consideration the possibility of “successor liability” – that is, the buyer’s assumption…
December 27, 2019
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December 27, 2019
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Another “Unsigned Agreement” Held Enforceable Where the Parties Intended to be Bound, Despite Not Signing
Not all agreements need to be in writing to be enforced. Indeed, unless there is an applicable Statute of Frauds,…
December 20, 2019
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December 20, 2019
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Avoiding Duplicative Litigation
State courts have long exercised discretionary power to stay proceedings where a suit involving the same parties and issues is…
December 13, 2019
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December 13, 2019
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Affirmatively Plead Your Defenses, or Risk “Waiving” Them Goodbye
Many litigants are familiar with the well-settled rule that an affirmative defense will be waived if it is not included in a…
November 01, 2019
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November 01, 2019
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Upgrading to Commercial Division 2.0 (Part III): ICT Comes to Queens County
*** Attention all Queens County commercial litigators: If you have a case before Judge Grays, be sure to bring an…
October 24, 2019
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October 24, 2019
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Beneficiary To A Trust Lacks Standing To Collect Unpaid Debt
The poet, Robert W. Service once wrote that “a promise made is a debt unpaid.” The question that remains is:…
October 20, 2019
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October 20, 2019
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Court Seals Commercial Lease Provisions in Landlord Tenant Dispute
Commercial leases are not all boilerplate. The nature and sophistication of the business or industry of the tenant can lead to…
October 10, 2019
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October 10, 2019
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Brief Introductory Call with a Law Firm is Not Enough to Disqualify It From Representing Another Party in the Lawsuit
Lawyers often get phone calls from prospective clients seeking guidance on various issues – general legal inquiries, asking a variety…
October 04, 2019
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October 04, 2019
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A Film-Worthy Lesson on Class Certification
A class must satisfy the following prerequisites in order to be certified to proceed in the form of a class…
September 25, 2019
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September 25, 2019
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Three New Rule Amendments Proposed by the Commercial Division Advisory Council
The Commercial Division Advisory Council (the “Advisory Council”) has proposed three new amendments to the Commercial Division Rules: (1) a…
September 06, 2019
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September 06, 2019
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What the Commercial Division Has Done for Us Lately
As the name and subject matter of this blog would suggest, we here at Farrell Fritz are big fans of…
August 29, 2019
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August 29, 2019
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Economic Justification for the Win – Defeating a Tortious Interference Claim
Consider this situation: You are a shareholder of a company who is about to enter into a contract with a third…
August 27, 2019
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August 27, 2019
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Summer Day Camp Derivative Headed to Trial
“Sibling relationships are complicated. All family relationships are. Look at Hamlet.” Maurice Saatchi. A recent decision in Greenhaus v. Gersh…
August 14, 2019
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August 14, 2019
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Shareholders Beware: Serve Pre-Litigation Demands or Be Prepared to Plead Demand Futility with Particularity
In a recent case, Gammel v Immelt (2019 NY Slip Op 32005[U]), shareholders of General Electric Company (GE), brought a…
August 09, 2019
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August 09, 2019
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A Thoughtful Insight into Seeking a Stay of Proceedings
“Should I stay or should I go”, queried the Clash. Litigators are often faced with the same question, albeit in…
July 19, 2019
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July 19, 2019
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If you don’t use it, you lose it – don’t risk losing your right to terminate a contract by failing to timely notify your counterparty of material breaches
In a recent decision in Inferno Restaurant & Pizzeria, Inc. v SW Michaels Pizzeria, Inc., 2019 NY Slip Op 50995(U)…
July 03, 2019
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July 03, 2019
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Litigator’s Toolkit: Know the Law, Know the Rules, Know your Judge
We all know that understanding the law is a first step to good lawyering. But understanding what the particular judge…
June 19, 2019
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June 19, 2019
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Court Has Mercy, Allows Untimely Proof of Service
In law, as in life, mistakes happen. Some are irreparable: Statute of repose expired? Too much denim? In these circumstances,…
June 10, 2019
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June 10, 2019
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Vacating An Arbitration Award: Part II
You may have recently read on this blog that “vacating an arbitration award is an uphill battle.” As my college Hamutal…
May 31, 2019
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May 31, 2019
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Keeping Up With the Commercial Division: Statewide “Presumptive ADR” System for all Civil Cases
New York is continuously working to advance the delivery and quality of civil justice in this state. We recently discussed the…
May 23, 2019
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May 23, 2019
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New York, Not Swiss Law Applies to Lawsuit Over “Stolen” $40M Princie Diamond
In a recent decision by the New York County Commercial Division (Borrok, J.), the Court held that New York law,…
May 18, 2019
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May 18, 2019
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Upgrading to Commercial Division 2.0 (Part II)
Luddites beware! If you’ve been reluctant to introduce technology into the way you practice law, the Commercial Division may soon leave…
May 10, 2019
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May 10, 2019
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Law firm’s “no poaching” agreement escapes judicial review, and heads to arbitration
Neil Sedaka was right. “Breaking up is hard to do.” It’s no easier for law firms. The saga over the departure…
May 07, 2019
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May 07, 2019
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Back to Basics: Long-Arm Statute 101
Reflecting on your first year of law school, you begrudgingly remember learning about personal jurisdiction and the long-arm statute. As a commercial litigator, one…
April 29, 2019
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April 29, 2019
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Don’t Forward Away Your Attorney Client Privilege
The attorney-client privilege is intended to protect communications between an attorney and his/her client. The Supreme Court stated that the…
April 22, 2019
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April 22, 2019
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Want to File Under Seal? Here’s the Deal
To the uninitiated litigant, filing documents containing private, potentially embarrassing information under seal might seem like it should be easy…
April 15, 2019
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April 15, 2019
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Too Little Too Late: An Example of the Failure of CPLR 306(b)’s Safety Net
A commercial division litigator knows the severity of missing a statutory deadline. We discuss the implications of missing a statutory…
April 05, 2019
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April 05, 2019
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Summary Judgment 102: Make Sure Your “Money Instrument” Is In Tune With CPLR 3213
Summary judgment plays an important role in litigation. So important, in fact, that many of our blog posts are devoted…
March 29, 2019
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March 29, 2019
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When Summary Doesn’t Mean Summary: Getting a Second Bite at Summary Judgment
There is a general policy in New York against allowing multiple or successive motions for summary judgment. And it stands…
March 21, 2019
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March 21, 2019
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How to Effectuate a Change in Venue in an E-filed Case: lesson to the bar
Ever wondered how to effectuate a transfer of venue following your successful motion to change venue in an e-filed case? …
March 15, 2019
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March 15, 2019
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A Prior Inconsistent Statement Is Not Necessarily Your Road to Judicial Estoppel
You have been engaged in extensive motion practice in the Supreme Court of the State of New York. You learn that your…
March 07, 2019
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March 07, 2019
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Recently Retired Justices Bransten, Kornreich, Ramos, Schweitzer, and Demarest Reflect on Commercial Division’s Past, Present and Future
At the New York City Bar Association the evening of February 25th, five recently retired justices of the Commercial Division—Hon. Eileen…
February 28, 2019
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February 28, 2019
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Recovering Lost Profits Is a Fine Art in the Legal World
Perhaps the most important aspect of any case is determining what your damages are. After all, isn’t that generally the…
February 21, 2019
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February 21, 2019
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Judge Emerson Says “Thank you, Next” to Plaintiff’s Weak Arguments in Opposition to Enforcement of Forum-Selection Clause
Boy invites Girl on a date for Valentine’s Day. They agree to meet at a restaurant near Boy’s home (rude,…
February 14, 2019
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February 14, 2019
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Summary Judgment 101: Movants, Make Sure Your Evidence Is In “Admissible Form”
Most litigators are familiar with the requirement that a summary motion be supported with “evidentiary proof in admissible form” establishing…
February 08, 2019
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February 08, 2019
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Check the Rules Part X: New ComDiv Judge Emphasizes (Assumes?) Use of Technology in Individual Practice Rules
In our last “Check the Rules” post back in December, we noted the recent additions to the Manhattan Commercial Division bench, Justices…
January 31, 2019
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January 31, 2019
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Are There Heightened Pleading Requirements When Alleging Consequential Damages Against an Insurer in a Coverage Dispute? “No”, Says the First Department
Are “consequential damages” available on contract claim against an insurer in an action brought by an insured for breach of a commercial…
January 24, 2019
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January 24, 2019
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Commercial Division Rules in Favor of … “The Junior Associate”
As a junior associate you do research and draft motion papers and yearn for the opportunity to argue your motion…
January 17, 2019
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January 17, 2019
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CAN A NON-SIGNATORY BE COMPELLED TO ARBITRATE CLAIMS?
Your client who was just subpoenaed to provide documents in an arbitration, advises you, but with confidence says “But we…
January 11, 2019
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January 11, 2019
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Insurers Must Defend Claims Brought By Hulk Hogan: Intentional Tort Deemed “Accidental” Occurrence
To welcome the New Year, we venture outside this blog’s traditional realm of commercial division practice and procedure to reflect…
January 04, 2019
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January 04, 2019
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Money Can Buy You Shares in A Company But It Can’t Buy You Preliminary Injunctive Relief
A preliminary injunction is one of the available provisional remedies, namely, equitable relief entered by a court prior to a final…
December 27, 2018
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December 27, 2018
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Successful Challenge To a Forum-Selection Clause Requires a “Strong Showing” – So Select Your Forum Wisely
Forum-selection clauses were once widely disfavored by many courts on the theory that such provisions operated to improperly divest the…
December 20, 2018
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December 20, 2018
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Check the Rules Part IX: More Procedural Particularities of Practicing in the Commercial Division
As readers of this blog have come to appreciate, we here at New York Commercial Division Practice tend to report…
December 13, 2018
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December 13, 2018
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Judicial Dissolution Proceeding against Donald J. Trump Foundation Withstands Dismissal Motion
The Donald J. Trump Foundation, a private foundation incorporated in 1987, was formed “exclusively for charitable, religious, scientific, literary or educational…
December 06, 2018
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December 06, 2018
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Technology-Enabled Courtrooms Coming to the Commercial Division
Tired of printing hundreds of thousands of documents and carrying numerous boxes of documents to court? The New York Commercial…
December 01, 2018
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December 01, 2018
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Attorneys Avoid Civil Contempt Despite “Complicit” Role in Client’s Willful Disregard of Court Order
What consequences might an attorney face if she allows her client to deliberately disregard a court order? A recent decision…
November 23, 2018
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November 23, 2018
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Google Doesn’t “Do the Right Thing” When It Comes To Attorneys’ Eyes Only
As litigators in the Commercial Division, everyone knows that discovery can be particularly burdensome and time consuming. This is especially…
November 15, 2018
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November 15, 2018
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Those Seeking to Vacate An Arbitration Award Face An Uphill Battle
You’ve just represented a client in an arbitration proceeding…and lost. The client wants to “appeal” the decision. Now what? The…
November 09, 2018
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November 09, 2018
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Commercial Division Rules May Be Coming to a Non-Commercial Court Near You
For those civil practitioners who don’t regularly practice in the Commercial Division – beware. The Unified Court System’s Advisory Committee…
November 05, 2018
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November 05, 2018
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At Least I Still Have My Rights of Inspection
Perhaps it’s because I’ll be speaking on the topic later this week, or perhaps it’s because of a recent post…
October 29, 2018
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October 29, 2018
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Does “freedom of contract” really exist when it comes to statute of limitations in a mortgage-backed securities contract?
Although we generally report on recent Commercial Division decisions, and sometimes commercial cases coming out of the Appellate Divisions, this time…
October 22, 2018
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October 22, 2018
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General Release Bars Family from Recovering Art from the Holocaust
A general release: the end of a litigation or relinquishment of a right? Every attorney and litigant often breathes a…
October 12, 2018
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October 12, 2018
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Amended CPLR 503(a): “Extra Butter” Sneakerheads Must Defend Alleged Theft of Yeezys, and Other Fly Kicks, in New York County
It has been almost one year since the New York legislature amended CPLR 503(a) to provide for venue in “the…
October 04, 2018
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October 04, 2018
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Have a Dog In Someone Else’s Fight? Intervene to Protect Your Right!
Generally speaking, most people want to avoid becoming entangled in litigation. But what happens when an action is pending and,…
September 30, 2018
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September 30, 2018
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Check the Rules Part VIII: More Updated Part Rules in the Manhattan Commercial Division
Over the past year or so, we have made a point of highlighting in the “Check the Rules” series on…
September 20, 2018
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September 20, 2018
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Is the Defense of “Release” Documentary Evidence Under 3211(a)(1) or an Affirmative Defense Under (a)(5)(or does it matter)?
In Miller v. Brunner, the Appellate Division, Second Department spoke clearly (again) about how to move to dismiss on the…
September 13, 2018
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September 13, 2018
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“Unnecessary and Inappropriate”: The declaration no one wanted
Your client wants to recover damages for breach of contract and demands that you assert as many causes of action as possible. …
September 07, 2018
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September 07, 2018
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Second Department Allows Untimely Claims to Relate Back to Action Brought By Wrong Plaintiff
Can substitution of a new plaintiff who has proper standing cause “surprise or prejudice” to a defendant after the statute…
August 30, 2018
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August 30, 2018
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Court Confirms Arbitration Award Against Respondent Who Failed to Check Her Mail
A recent decision out of the Suffolk County Commercial Division underscores the importance of staying on top of your mail if…
August 23, 2018
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August 23, 2018
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Court Says Uber Makes Things Difficult But Not “Impossible” for NYC Taxis
I made two observations coming out of Grand Central Station during my morning commute last week. First, the city really…
August 09, 2018
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August 09, 2018
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Court cannot search the record on claims not the subject of the motion, or can it?
The Appellate Division, in a short but direct ruling, reminds the bench and bar that courts cannot simply “search the…
August 02, 2018
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August 02, 2018
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Personal Jurisdiction Over Japanese Airplane Entities Does Not Fly in New York County
In a recent decision, Justice Scarpulla of the New York County Commercial Division declined to exercise personal jurisdiction over several…
July 26, 2018
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July 26, 2018
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Universal Obtains More Than It Bargained For in Dealings with Cash Money Records: Potential Liability for Unpaid Drake Profits
For those unfamiliar with what today’s young kids are listening to, Aubrey “Drake” Graham is one of the most commercially-successful…
July 19, 2018
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July 19, 2018
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Doping Suit Brought by Vijay Singh: Appellate Division Affirms Denial of PGA Tour’s Motion
In May 2013, professional golfer Vijay Singh (“Singh”) brought suit against PGA Tour, an organizer of the leading men’s professional golf…
July 13, 2018
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July 13, 2018
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Proposed Amendment to Commercial Division Rules Aims to Make Mediation More Effective
Commercial Division litigators often hope that mediation will lead to a negotiated settlement, but their expectation – based on their…
July 05, 2018
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July 05, 2018
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Be Prepared to Upgrade to Commercial Division 2.0 – at Least in Westchester County
Several weeks ago we remarked on the Commercial Division’s renowned efficiency and innovativeness when it comes to proposing and adopting…
June 28, 2018
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June 28, 2018
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In Pari Delicto Defense Can be Raised for the First Time on Appeal, But is No Defense to a Fraudulent Conveyance
Failure to raise an issue at the trial court level is generally considered a waiver of that issue on appeal. …
June 21, 2018
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June 21, 2018
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Treasury Secretary Escapes Fraud Claims
On June 5, 2018, in RKA Film Financing, LLC v. Kavanaugh et al., the First Department unanimously affirmed the Supreme…
June 15, 2018
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June 15, 2018
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Bill “Doe” (friend/refused last name), Possible Squatter, Accepts Substitute Service
In the opening scene of the 2008 “stoner action comedy” Pineapple Express, as Eddy Grant’s “Electric Avenue” pumps out of…
June 07, 2018
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June 07, 2018
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First Department Rejects Kesha’s Proposed Counterclaims Seeking to Terminate Contracts With Dr. Luke
In a recent decision handed down just a couple of days ago, the Appellate Division, First Department affirmed Justice Kornreich’s…
May 31, 2018
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May 31, 2018
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Action to Recover Amadeo Modigliani Painting Stolen by Nazis Survives Dismissal Due in Part to Alter Ego Finding
Minolta DSC Over eighty years after the end of World War II, crimes committed by the Nazis continue to be…
May 24, 2018
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May 24, 2018
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Check the Rules Part VII – Recent New-Rule Proposal Encourages Lawyers and Courts to Get Down to Brass Tacks Early in the Case
The New York Commercial Division was founded in 1993 “to test whether it would be possible, by concentrating on commercial…
May 17, 2018
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May 17, 2018
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Another Reminder That Unsigned Agreements Can Be Binding
In commercial litigation, it is not at all unusual for courts to be called upon to determine whether an unsigned…
May 10, 2018
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May 10, 2018
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Default Judgment Entered on a Promissory Note Even Though Claim Likely Violated Criminal Usury Laws
So a plaintiff obtains a default judgment against a defendant on a promissory note case. Defendant fails to appear or defend. On…
May 04, 2018
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May 04, 2018
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Fugitive Tycoon Guo Wengui, Seeking Asylum in United States, Denied Protection from Creditors’ New York Lawyers
In 2015, Guo Wengui, a/k/a Kwok Ho Wan, a Chinese citizen, billionaire investor and political provocateur, fled China for the United States…
April 26, 2018
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April 26, 2018
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Fox News Executive Not a Faithless Servant, Despite Allegations of Sexual Harassment
In a recent Commercial Division decision, Pozner v Fox Broadcasting Company, (2018 NY Slip Op 28102 [Sup Ct, NY County…
April 20, 2018
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April 20, 2018
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Blue Man Group Member’s Fiduciary Duty Claim Drummed Out of Court
Ian Pai was an early participant in the Blue Man Group (“BMG”). Between 1989 and 1991, he met and began collaborating…
April 05, 2018
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April 05, 2018
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Check the Rules Part VI – Recent Rule-Change Proposal Asks Lawyers To Curb Their Brief-Writing Enthusiasm
Perhaps I’m revealing too much about my abilities in a prior life to balance academic and social priorities, but does…
March 29, 2018
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March 29, 2018
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Lawyers Must Continue to Dot Their I’s and Cross Their T’s To Avoid Legal Malpractice Claims
In a legal malpractice claim brought by Plaintiff, an Australian investment bank against Morrison & Foester, claiming that the law…
March 22, 2018
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March 22, 2018
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Separate Duty to Notify Revives Untimely Subprime Mortgage Claims
In a thorough opinion last week by Justice Marcy Friedman in Bank of N.Y. Mellon v WMC Mtge., LLC, the…
March 15, 2018
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March 15, 2018
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When Is A Fraud Claim Duplicative Of A Breach Of Contract Claim?
Generally speaking, a fraud claim that is “duplicative” of a breach of contract claim will be dismissed. But when is…
March 08, 2018
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March 08, 2018
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Another Stern Reminder re: Judiciary Law § 470 is Alive and Well
Frequent readers of this blog may recall my post from the end of last year in which I highlighted a…
March 01, 2018
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March 01, 2018
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Check the Rules Part V – Motion and Pre-Trial Practice in Kings County and Other Helpful Resources
For the fifth installment of this blog’s ongoing “Check the Rules” series, we feature the individual practice or part rules…
February 22, 2018
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February 22, 2018
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When Does Intentional Wrongdoing Render a “Limitation of Liability” Clause Unenforceable?
That was the issue presented to the Appellate Division, First Department in Electron Trading, LLC v. Morgan Stanley & Co. LLC,…
February 15, 2018
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February 15, 2018
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State of Our Judiciary Address Announces E-Filing Rules for Appellate Divisions Affecting Commercial Cases
Chief Judge Janet DiFiore announced on Tuesday (February 6) in her State of Our Judiciary Address, that the Appellate Divisions…
February 09, 2018
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February 09, 2018
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Not All “Repeated Discovery Failures” Lead to the Striking of a Pleading
So you entered into a Preliminary Conference and a Compliance Conference Order with your adversary whereby the parties have to…
February 08, 2018
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February 08, 2018
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Content Developer Attempts to Tag MLB with Conversion: “Safe,” Rules Justice Kornreich
Have you ever had a brilliant business idea, only to discover years later that someone else has beaten you to…
February 01, 2018
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February 01, 2018
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Be Sure to ‘Like’ This Summons on Facebook
My colleague Adam Rafsky’s astute post last week on Manhattan Commercial Division Justice Shirley Werner Kornreich’s recent reminder regarding the…
January 18, 2018
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January 18, 2018
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Defamation Claims Against Gemological Institute Doomed: Qualified Privilege Shield Is Stronger Than A Diamond
“Diamonds are nothing more than chunks of coal that stuck to their jobs,” said Malcom Forbes. An industry that generates…
January 04, 2018
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January 04, 2018
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A Reminder for Non-Resident Attorneys Seeking to Practice in New York: Be Sure to Comply with Judiciary Law § 470!
This week, we examine the answer to a simple question: may an out-of-state lawyer serve as counsel in a New…
December 28, 2017
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December 28, 2017
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Check the Rules Part IV
In one of our very first posts on this blog – entitled “First Things First: Check the Rules!” – we…
December 21, 2017
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December 21, 2017
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Proposed Amendment to Commercial Division Rule 11-g Seeks to Add Clawback Language to Standard Confidentiality Order
Disclosure of Electronically Stored Information (“ESI”) has become a staple in commercial cases. Of course, with the vast number of documents and…
December 14, 2017
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December 14, 2017
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Attorneys Switching Sides During Litigation Sometimes Allowed… at least in the First Department!
Notwithstanding general public opinion of attorney ethics, most people (including attorneys) believe that an attorney cannot dump a client in…
December 07, 2017
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December 07, 2017
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Is it a Privilege to Speak With a PR Consultant? Maybe Not for Kesha!
So you were just retained on what could become a high-profile case. The stakes are high, and it’s unclear how…
November 30, 2017
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November 30, 2017
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Golf, the Commercial Division, and Expert Disclosure: No Sandbaggers Allowed!
“The expert discovery rules are promulgated so no party will be ‘sandbagged’ or surprised by another expert’s opinion” – Manhattan…
November 16, 2017
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November 16, 2017
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To Demand or Not Demand, “Futility” is the Question
Under Delaware law, the decision to commence litigation on behalf of a corporation is, of course, a fundamental exercise of business…
November 09, 2017
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November 09, 2017
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Is Customer Information a Trade Secret? Not So Fast!
Under what circumstances do customer information and business operations constitute “trade secrets” that may be enjoined from use by a…
November 02, 2017
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November 02, 2017
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To ADR or Not to ADR? Two New Amendments to the Commercial Division Rules Require Parties to Answer the Question
Two recent amendments to the Commercial Division Rules, designed to encourage alternative dispute resolution, will go into effect on January…
October 26, 2017
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October 26, 2017
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Jurisdictional Discovery: When and Why It’s Available
Personal jurisdiction analysis is often the enemy of 1L’s tackling that doozy of a CivPro exam. Outside of that 10-page fact…
October 19, 2017
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October 19, 2017
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Has Rule 11-c Made Nonparties’ Yoke Easy and Burden Light When It Comes to e-Discovery?
As we have come to expect, the Commercial Division Advisory Council periodically makes recommendations to amend and/or supplement the Rules…
October 12, 2017
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October 12, 2017
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Pleading Equitable vs. Contractual Indemnification
Can a claim for equitable or common-law indemnification co-exist with a claim for express or contractual indemnification? In Live Invest,…
October 05, 2017
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October 05, 2017
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Answer the Phone, Win a Trip to New York?
If you live in the Western Hemisphere, then you already know that New York courts may exercise personal jurisdiction over…
September 28, 2017
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September 28, 2017
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It May Look Like Documentary Evidence, But Is It Under CPLR 3211(a)(1)?
CPLR 3211(a)(1) allows a defendant to seek dismissal of a complaint when the defense is “founded upon documentary evidence.” “Documentary…
September 14, 2017
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September 14, 2017
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“Better Late Than Never” Not a Refrain for the Defaulting Defendant Lacking a Potentially Meritorious Defense
Statutorily imposed deadlines are not optional for commercial litigants; this much should be obvious. Notwithstanding, and despite numerous technological calendaring…
September 11, 2017
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September 11, 2017
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Check the Rules Part III
Visitors to this blog may recall our recent posts (here and here) concerning the individual practice rules of Manhattan Commercial…
August 31, 2017
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August 31, 2017
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Are Communications With an Expediter or “Land-Use Consultant” Privileged?
In an action brought against a title company for losses in connection with a property sale, Justice Elizabeth H. Emerson, in…
August 24, 2017
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August 24, 2017
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Two New Rule Amendments Proposed by Commercial Division Advisory Council
If you have ever looked at a contract’s New York choice-of-law provision or a status conference stipulation and thought to…
August 17, 2017
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August 17, 2017
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No Privity? No Problem!
ay a stranger to an arbitration agreement compel arbitration against its signatories? According to the Second Department in Degraw Construction Group v McGowan…
August 10, 2017
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August 10, 2017
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The Doctrine of Equitable Recoupment Is A Litigation Shield – Not A Sword
The doctrine of equitable recoupment, which is codified in CPLR 203(d) permits a defendant to assert an otherwise untimely defense or counterclaim.…
August 03, 2017
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August 03, 2017
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It’s Sweet to be NutraSweet: Commercial Division Overturns Arbitration Award Entered in Favor of Would-be Seller of Aspartame Business to Iconic Artificial Sweetener Brand
As any seasoned commercial litigator knows, courts are generally loathe to overturn the independent decisions of arbitrators. New York County…
July 27, 2017
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July 27, 2017
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Check the Rules Redux
Several weeks ago, we reported on some recent updates to Manhattan Commercial Division Justice Bransten’s individual practice rules. New York…
July 20, 2017
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July 20, 2017
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Motions For Leave to Renew: The Requirement Often Overlooked
A motion for leave to renew must be based upon new evidence or a change in the law that would…
July 13, 2017
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July 13, 2017
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Attorney Letter Terminating Engagement May Not Constitute “Documentary Evidence” to Support Dismissal of Malpractice Case
CPLR 3211(a)(1) provides for the dismissal of a claim so long as the defense is based upon “documentary evidence”. We’ve…
July 06, 2017
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July 06, 2017
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Forum Selection Clause in Broker Agreement Insufficient to Confer Personal Jurisdiction
The Second Department recently handed down a harsh reminder of the importance of obtaining an executed broker’s agreement. Oral agreements…
June 29, 2017
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June 29, 2017
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Don’t Forget To Calendar Your Deadlines – Especially The Statutory Ones!
If you commence an action by way of summons with notice, you must bear in mind the strict time limitations…
June 22, 2017
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June 22, 2017
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Three New Rule Amendments Proposed by the Advisory Council
One aspect of the Commercial Division that makes it a highly desirable forum for litigators and litigants alike is its…
June 15, 2017
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June 15, 2017
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First Things First: Check the Rules!
You’re a commercial litigator in New York. You’ve just been brought in on a case pending in the Commercial Division…
June 08, 2017
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June 08, 2017
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Harvey Keitel Fails Twice to Prove Binding Contract to do Commercials for E*Trade
In an action for breach of contract, Pulp Fiction and Reservoir Dogs star Harvey Keitel sued E*Trade based upon a…
May 31, 2017
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May 31, 2017
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