Commercial Division Blog

Posted: May 15, 2018 / Categories Commercial, Court Rules/Procedures, Summary Judgment, Motion to Dismiss; Motion for Judgment on the Pleadings

Invoking CPLR 3212 and Commercial Division Rule 9, Justice Scarpulla Conducts Immediate Hearing to Resolve Factual Dispute

On May 2, 2018, Justice Scarpulla of the New York County Commercial Division issued a decision in Overtime Partners, Inc. v. 320 W. 31st Assoc., LLC, 2018 NY Slip Op. 30807(U), invoking CPLR 3212 and Commercial Division Rule 9 in conducting an immediate hearing on the only factual issue in dispute in an action for, among other things, an injunction.

In Overtime Partners, a "commercial landlord-tenant action," the plaintiff sought "a preliminary injunction to compel defendant 320 West 31st Associates, LLC to accept a proposed sublessee. After two-and-a-half days of hearings on the preliminary injunction motion," the court "gave the parties notice that, pursuant to CPLR 3212(c), and because of the unique circumstances in this action and the exigency of the dispute," the court "was converting the motion for preliminary injunction into one for summary judgment on the claims for a declaratory judgment and permanent injunction."

The court explained: "Pursuant to CPLR 3212(c), a court may order an immediate trial of an issue of fact raised by a motion when appropriate for the expeditious disposition of the controversy. In this action, because I already held a hearing on the only factual issue in dispute, I now utilize the procedure set forth in CPLR 3212(c) to determine Overtime's causes of action for declaratory judgment and permanent injunction on summary judgment." In it footnote, it added: "See also Proposed Commercial Division Rule 9-a Immediate Trial or Pre-Trial Evidentiary Hearing, available at https :// comments/PDF /CDRule9-a.pdf ('Subject to meeting the requirements of ... 3212(c), parties are encouraged to demonstrate on a motion to the; court when a pre-trial evidentiary hearing or immediate trial may be effective in resolving a factual issue sufficient to effect the disposition of a material part of the case.')."

New York procedural law (including the special rules applying to litigation in the Commercial Division of the New York courts) is not particularly complex. Still, there are situations like the one described here where the court and/or the parties can take an action on a different procedural course. Contact Schlam Stone & Dolan partner John Lundin at if you or a client have questions regarding New York practice, and particularly regarding the rules governing practice in the Commercial Division.