Commercial Division Blog

Posted: September 28, 2022 / Written by: Jeffrey M. Eilender, Samuel L. Butt, Christopher R. Dyess, Joshua Wurtzel, Hillary S. Zilz / Category Discovery/Disclosure

Discovery Motion Denied for Failure to Comply with Commercial Division and Part Rules Regarding Pre-Motion Conference

On September 6, 2022, Justice Robert R. Reed of the New York County Commercial Division issued a decision in Latin Markets Brazil, LLC v. McArdle, 2022 N.Y. Slip Op. 50848(U), denying a discovery motion that was made without leave of court and in violation of the Part Rules and Commercial Division Rules 14 and 24, explaining:

Here, the filing of the instant motion was done without leave of court and in direct [**2] contravention of Commercial Division Rules 14 and 24, and Part 43 Rule 6[h]. This fact alone permits denial of the motion (Maple Drake Austell Owner, LLC v D.F. Pray, Inc., 75 Misc 3d 1203[A], 166 N.Y.S.3d 512, 2022 NY Slip Op 50346[U] [NY Sup. Ct. 2022][discovery motions should be denied if a party fails to adhere to the court rules]; D'Amour v Ohrenstein & Brown, LLP, 17 Misc 3d 1130(A), 851 N.Y.S.2d 68 [NY Sup. Ct. 2007] [denying plaintiffs' discovery motion as they did not contact the court before making the motion as required by Rule 14 of the Commercial Division Rules to arrange a conference for the purpose of resolving the issues raised by the motion"]). Given the plaintiff did not comply with this court's directives with respect to identifying and notifying the [*3] court of discovery disputes and affording the court the opportunity to adequately address the parties concerns prior to the filing of any motions, plaintiff's request for attorneys' fees and costs pursuant to 22 NYCRR 130-1-1(c) is denied.

In the Commercial Division, discovery motions are prohibited unless a party first raises the discovery dispute informally with the court and gets the court’s advance permission to file the motion. As this case shows, it is also very important to strictly comply with the rules of the specific judge overseeing the case. The attorneys at Schlam Stone & Dolan regularly litigate discovery disputes, both informally under each judge’s rules and formally when permission is granted. Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have a question concerning discovery disputes in the Commercial Division.