Commercial Division Blog: Current Developments in the Commercial Divisions of the New York State Courts

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November 23, 2022 Common-Law Indemnification Crossclaim Should Be Dismissed Where Duty to Comply Was Not Delegable
On November 10, 2022, Justice Borrok of the New York County Commercial Division issued a decision in 85 Jane Realty, LLC v. Xhema of N.Y., Inc., 2022 NY Slip Op 33838(U) holding that a crossclaim for common law indemnification must be dismissed when the duty allegedly violated was not delegable. Read More
November 21, 2022 Business Judgment Rules Shields Managing Member From Liability for Breach of Fiduciary Duty
On October 4, 2022, Justice Cohen of the New York County Commercial Division issued a decision in Greenman v. Miller, et al., 2022 NY Slip Op 33355(U) holding that summary judgment was appropriate on a breach of fiduciary duty claim where the defendant was the company’s managing member and was therefore protected under the business judgment rule. Read More
October 28, 2022 Forum Selection Clause in Articles of Incorporation Is Valid Despite Dispute Over Meaning of Translation from German
On August 19, 2022, Justice Chan of the New York County Commercial Division issued a decision in Cattan v. Vasella, 2022 NY Slip Op 32814(U) holding that a forum selection clause requiring that the dispute be resolved in Switzerland was valid despite the interpretation of the German translation of portions of the clause implying that it did not govern disputes between the corporation and a corporate officer or director. Read More
October 26, 2022 Labor Law § 240(1) Imposes Absolute Liability on Contractors Who Fail to Provide Proper Protections to Workers on Construction Sites
On August 15, 2022, Justice Chan of the New York County Commercial Division issued a decision in Jaramillo v. Port Auth. of N.Y. & N.J., 2022 NY Slip Op 32745(U) holding that summary judgment was appropriate under Labor Law § 240(1) where a construction worker fell from a ladder and did not have adequate protection to protect him from injuries. Read More
October 24, 2022 Defendant Has Standing to Challenge Subpoena to Non-Party Insurance Company Where Records Relate to Insurance Transactions
On August 25, 2022, Justice Chan of the New York County Commercial Division issued a decision in Ohi Asset (NY) 93rd St., LLC v. Consigli Constr. Co., Inc., 2022 NY Slip Op 32908(U) holding that a defendant had standing to challenge document subpoenas issued to a non-party insurance company where the documents at issue related to the defendant’s financial insurance purchase transactions. Read More
October 21, 2022 Transfer to Commercial Division Denied Because Case Was Related to Pending Non-Commercial Case
On October 19, 2022, Justice Adam Silvera, New York County Administrative Judge, issued a decision in People v. Trump, Index No. 452564/2022, holding that this suit was properly assigned to Justice Arthur F. Engoron because he is presiding over a separate, "related" special proceeding that has not yet been marked as disposed, but further holding that, under section 202.70(e) of the Commercial Division Rules, Justice Engoron could still decide that the new case is not "related" to the prior one and request that the new case be transferred to the Commercial Division, explaining: Read More
September 23, 2022 Fee Recovery Allowed Against a Foreign Party Where Party’s SLAPP Suit Was Dismissed
On September 15, 2022, Justice Schecter of the New York County Commercial Division issued a decision in Moby S.P.A. v. Stanley, 2022 NYLJ LEXIS 1241 holding that a where a foreign plaintiff filed a baseless anti-SLAPP suit that was dismissed, the prevailing party could recover attorney’s fees. Read More
September 21, 2022 Counterclaim Properly Dismissed Where Issue Was Adjudicated in Prior Arbitration
On July 28, 2022, Justice Borrok of the New York County Commercial Division issued a decision in Firescu v Diamond, 2022 NY Slip Op 32574(U) holding that a counterclaim should be dismissed on a theory of collateral estoppel where the issue was previously decided by an arbitration panel. Read More
September 19, 2022 Default Judgment Proper Where Defendant Failed to Respond and Plaintiff Submitted Proof of Service and Evidence of Merits
On September 6, 2022, Justice Reed of the New York County Commercial Division issued a decision in Excelsia Leatherware Co. v. Horowitz, 2022 NY Slip Op 50847(U) holding that a party was entitled to a default judgment where the defendant failed to respond to the complaint and the plaintiff submitted proof of service and evidence proving the claim. Read More
September 12, 2022 Commercial Division Rule 15 Amended to Encourage Use of Remote Appearance Technology to Avoid Adjournments of Conferences
On July 12, 2022, Chief Administrative Judge Lawrence K. Marks signed an administrative order amending Rule 15 of the Commercial Division Rules, adding a new sentence that provides, “By leave of court as provided by Rule 1 (d), attorneys are encouraged to use remote appearance technology in order to avoid adjournments of conferences.”  The purpose of the amendment is to assist with avoiding unnecessary delay of proceedings and consequent inefficiencies and loss of productivity. Read More
September 2, 2022 Claim for Lost Profits Must Be Dismissed Where Complaint Fails to Allege that Lost Profits Were Within the Contemplation of the Parties
On June 16, 2022, Justice Borrok of the New York County Commercial Division issued a decision in L'Oreal USA, Inc. v Wormser Corp., 2022 NY Slip Op 31931(U) holding that claims for lost profits should be dismissed where the complaint failed to allege that the parties contemplated lost profits when entering into an agreement. Read More
August 29, 2022 Redactions in Memorandum of Law Not Appropriate Where Proposed Redactions Do Not Implicate Business’ Competitive Standing
On August 8, 2022, Justice Masley of the New York County Commercial Division issued a decision in Coresite 32 Ave. of the Ams., L.L.C. v. 32 Sixth Ave. Co. LLC, 2022 NY Slip Op 32670(U) holding that a party could not redact portions of its memorandum of law where the proposed redactions did not protect confidential business information. Read More
August 5, 2022 Attorney’s Fees in Default Judgment Not Appropriate Where Condominium By-Laws Are Not Explicit
On May 4, 2022, Justice Chan of the New York County Commercial Division issued a decision in Board of Mgrs. of the 207-209 E. 120th St. Condominium v. Dougan, 2022 NY Slip Op 31491(U) holding that where a condominium’s bylaws did not explicitly state that attorneys’ fees were collectible when the Board of Managers was successful in litigation arising out of the governing agreements and laws, the Board of Managers was not entitled to collection of such fees. Read More
August 3, 2022 Default Judgment Proper Where Party Failed to Update Address and Did Not Receive Service of Process
On July 26, 2022, Justice Borrok of the New York County Commercial Division issued a decision in Shabtai v. HFZ Capital Group, LLC, 2022 NY Slip Op 50669(U) holding that a party’s failure to update its address was not a reasonable excuse for not receiving process and the subsequent failure to respond warranted a default judgment. Read More
August 1, 2022 Tax Returns Not Discoverable Where Party Failed to Show Information is Unavailable from Other Sources
On July 14, 2022, Justice Reed of the New York County Commercial Division issued a decision in Atsco Footwear Holdings, LLC v. KBG, LLC, 2022 NY Slip Op 50657(U) holding that a party was not entitled to tax returns in discovery even where relevant unless the party shows that the information was not available from other sources. Read More
July 25, 2022 The Business Council of New York State, Inc., Holds Webinar Discussing Benefits of the Commercial Division
On June 7, 2022, The Business Council of New York State, Inc., held a webinar entitled "The Benefits of the Commercial Division to the State of New York."  The Business Council is New York State’s largest business organization--made up of approximately 3,500 member companies, local Chambers of Commerce, and professional and trade associations). This webinar discusses how the Commercial Division helps to increase business activity in New York, and to thus generate tax revenue and provide jobs. Specifically, this webinar discusses recent improvements to the Commercial Division’s rules, procedures, and operations that have been designed to be responsive to the needs and concerns of the business community. Read More
July 8, 2022 Shared Principal Corporate Officer and Allegations that Party Did Not Maintain Separate Offices Not Sufficient to Pierce Corporate Veil
On May 11, 2022, Justice Masley of the New York County Commercial Division issued a decision in Irma C. Pollack LLC v. OP Dev. Corp., 2022 NY Slip Op 31541(U)holding that a complaint failed to properly plead that a party had pierced the corporate veil where the entities shared a principal officer and did not maintain separate offices. Read More
June 8, 2022 Attorney Malpractice Properly Plead Where Complaint Alleges Attorney’s Faulty Advice Forced Arbitration
On May 2, 2022, Justice Chan of the New York County Commercial Division issued a decision in Cutie Pie Baby Inc. v. Sasson Law PLLC, 2022 NY Slip Op 31450(U) holding that a complaint properly alleged attorney malpractice where the plaintiff alleged that the attorney’s faulty advice was the “but for” cause of its damages resulting from an arbitration proceeding. Read More
June 6, 2022 Settlement Agreement Valid Without Signatures Where Parties Agreed to Settle By Email
On April 26, 2022, Justice Masley of the New York County Commercial Division issued a decision in DT Net Lease I Reit v. Coughlan, 2022 NY Slip Op 31381(U) holding that a settlement agreement was valid where the parties exchanged a draft settlement agreement and agreed to settle via email despite not having signed the draft agreement. Read More
May 13, 2022 Restrictive Covenant Preventing Employee from Working for a Competitor Overly Broad and Not Necessary to Protect Legitimate Interest
On April 5, 2022, Justice Chan of the New York County Commercial Division issued a decision in Mission Capital LLC v. Javich, 2022 NY Slip Op 31162(U) holding that a motion seeking to prevent a former employee from working at a competitor should be denied, despite the existence of a restrictive covenant, where enjoining the employee from working at the competitor was broader than necessary to protect the employer’s business interests. Read More
May 11, 2022 Affirmative Defense that Agreement was Void Due to Lack of Consideration Should Be Dismissed Where Party Only Alleges Failure of Performance
On April 4, 2022, Justice Borrok of the New York County Commercial Division issued a decision in 3B Assoc. LLC v eCommission Solutions, LLC, 2022 NY Slip Op 31184(U), holding that summary judgment must be granted against a defendant’s affirmative defense that a contract was void due to lack of consideration where the record showed that the alleged missing consideration was merely an allegation that the plaintiff failed to provide services under the terms of the contract. Read More
May 9, 2022 Foreign Bank’s Submission of Trading Data to Internet Platforms Not Sufficient to Trigger Jurisdiction of New York’s Long Arm Statute
On April 13, 2022, Justice Crane of the New York County Commercial Division issued a decision in Qatar v. First Abu Dhabi Bank Pjsc, 2022 NYLJ LEXIS 410, holding that a motion to dismiss against a foreign bank for lack of jurisdiction should be granted where the only contacts the bank had with New York were allegedly submitting quotes to globally accessible internet trading platforms and the maintenance of two correspondent bank accounts in the state. Read More
March 16, 2022 Piercing of Corporate Veil Adequately Pled Where Plaintiff Alleges Fraud
On February 14, 2022, Justice Borrok of the New York County Commercial Division issued a decision in Kostyatnikov v. HFZ Capital Grp. LLC, 2022 NY Slip Op 30486(U), holding that a party properly pleads a corporate veil piercing theory when the facts allege a fraud was perpetrated against defendants. Read More
March 14, 2022 Commercial Lease Provision Exempting Party from Its Own Negligence Valid Where Parties Are Sophisticated
On February 3, 2022, Justice Gomez of the Bronx County Commercial Division issued a decision in Titumir v Barker Ave. Estates LLC, 2022 NY Slip Op 50073(U), holding that a provision in a commercial lease exempting a party for its own negligence was valid where the lease was entered into by sophisticated parties negotiating at arm’s length and the parties have agreed to allocate the risk of liability between themselves. Read More
February 18, 2022 Lender Has No Obligation to Perform Due Diligence to Determine if Signature on Loan Documents Was Fraudulent
On February 9, 2022, Justice Borrock of the New York County Commercial Division issued a decision in Donald Jaffe Inc. v. REEC 137 Franklin St. LLC, 2022 NYLJ LEXIS 85, holding that even where a notarized signature on loan documents was proven to be fraudulent, the lender had no obligation to perform due diligence to discover the fraud where the documents were facially valid and notarized. Read More
February 14, 2022 Party Not in Compliance with Lien Law Where Party Failed to Identify With Specificity Which Items Had Already Been Paid
On January 16, 2022, Justice Masley of the New York County Commercial Division issued a decision in Matter of FPG Maiden Lane, LLC v. Pizzarotti, LLC, 2021 NY Slip Op 30098(U), holding that a party was not in compliance with Lien Law § 38 where the party failed to distinguish between charges already paid and charges not paid. Read More
January 31, 2022 New Commercial Division Rule Mandates Settlement Conference After Filing of Note of Issue
On January 7, 2022, Chief Administrative Judge Lawrence J. Marks amended Commercial Division Rule 30 to mandate that "parties in every case pending in the Commercial Division must participate in a court-ordered mandatory settlement conference (MSC) following the filing of a Note of Issue." Read More
December 20, 2021 Business Loss Insurance Policy Does Not Cover COVID-19 Business Interruption Losses Where Policy Requested Physical Loss
On November 30, 2021, Justice Margaret Chan of the New York County Commercial Division entered a decision in SJ 1st St. Hotel, LLC v Sompo Am. Ins. Co., 2021 N.Y. Slip Op. 32558, dismissing an insured's complaint against an insurance company for failing to cover loss of income to a business due to shutdowns caused by the COVID-19 pandemic where the insurance policy covered loss for the closure of businesses due to a direct physical loss. Read More
November 5, 2021 New Commercial Division Rule to Permit Virtual Evidentiary Hearings and Bench Trials
On October 19, 2021, Chief Administrative Judge Lawrence K. Marks promulgated new Rule 36 of the Commercial Division Rules, which expressly permits evidentiary hearings and bench trials to be held virtually. The new rule, which becomes effective December 13, 2021, now expressly permits what most Commercial Division justices were already doing--holding hearings and bench trials virtually. The rule also permits the court to allow a witness or party to participate in an evidentiary hearing or bench trial virtually, even if the hearing or trial is otherwise being held in person. The rule is limited to instances in which all parties consent, and expressly does not address (one way or another) the issue of when all parties do not consent. The new rule is as follows: Read More
December 11, 2020 Fraud Claims Based on Omissions Fail Where Agreement Expressly Contemplated Non-Disclosure of All Material Information
On November 5, 2020, Justice Borrok issued a Commercial Division decision dealing with a fraud claim… Read More
April 22, 2020 Scheduling Remote Conferences with Commercial Division Justices
The Commercial and Federal Litigation Section of the New York State Bar Association has compiled inf… Read More
March 19, 2020 Justices Schecter and Masley Announce Procedures Relating to COVID-19
New York County Commercial Division Justices Schecter and Masley have announced new part rules relat… Read More
January 1, 2020 Justice Colaiacovo Updates Part Rules
Justice Emilio Colaiacovo of the Eighth Judicial District Commercial Division recently updated his i… Read More
December 30, 2019 Justice Karalunas Updates Part Rules
Justice Deborah H. Karalunas of the Onondaga County Commercial Division recently updated her individ… Read More
December 28, 2019 Justice Masley Updates Part Rules
Justice Andrea Masley of the New York County Commercial Division recently updated her individual pra… Read More
September 6, 2019 Justice Masley Updates Part Rules
Justice Andrea Masley of the New York County Commercial Division recently updated her individual pra… Read More
June 16, 2019 Justice Friedman Updates Part Rules
Justice Marcy S. Friedman of the New York County Commercial Division recently updated her individual… Read More
February 9, 2019 Justices Scarpulla and Schecter Updates Part Rules
Justices Saliann Scarpulla and Jennifer Schecter of the New York County Commercial Division recently… Read More
January 5, 2019 Justices Borrok and Cohen Post Part Rules
Newly-assigned New York County Commercial Division Justices Andrew Borrok and Joel M. Cohen have pos… Read More
October 22, 2018 Justice Bransten Updates Part Rules
Justice Eileen Bransten of the New York County Commercial Division recently updated her individual p… Read More
September 11, 2018 Justices Masley, Sherwood and Paris Update Part Rules
Justice Andrea Masley of the New York County Commercial Division recently updated her individual pra… Read More
July 11, 2018 Justices Scarpulla and Jamieson Update Part Rules
Justice Saliann Scarpulla of the New York County Commercial Division recently updated her individual… Read More
June 10, 2018 Justice Schecter Posts Part Rules
Recently-appointed Justice Jennifer Schecter of the New York County Commercial Division recently pos… Read More
May 26, 2018 Justices Hudson and Garugilo Update Part Rules
Justice James Hudson of the Suffolk County Commercial Division recently updated his part rules. Just… Read More
May 17, 2018 Justice Walsh Posts Part Rules
Recently-appointed Justice Gretchen Walsh of the Westchester County Commercial Division recently pos… Read More
May 14, 2018 Justice Kornreich to Retire; Justice Schecter to Take Over Her Part
The Commercial Division has announced that: After many years of judicial service, the Honorable Shir… Read More
May 4, 2018 CLE Program: The "How To" of Successful Motion Practice: Practical Advice & Tips
On May 23, 2018, Schlam Stone & Dolan partner John Lundin will chair a CLE program at the New Yo… Read More
May 3, 2018 Justice Risi Posts Part Rules
Recently-appointed Justice Joseph Risi of the Queens County Commercial Division recently posted his … Read More
April 6, 2018 Guest Post: Data Show Cases in the Commercial Division Are Taking Longer to Resolve
This is the second in a series of posts presenting a quantitative description of the Commercial Divi… Read More
November 19, 2017 Justice Bransten Updates Part Rules
Justice Eileen Bransten of the New York County Commercial Division recently updated her individual p… Read More
August 23, 2017 Justices Scheinkman and Garguilo Recently Updated Their Part Rules
Justice Scheinkman of the Westchester County Commercial Division recently updated his Practice Guide… Read More
July 30, 2017 Justice Masley Posts Part Rules
Justice Andrea Masley, newly-assigned to the New York County Commercial Division, recently posted he… Read More
May 2, 2017 Justice Bransten Updates Part Rules
Justice Eileen Bransten of the New York County Commercial Division recently updated her individual p… Read More
May 1, 2017 Justices Chimes and Nowak Post Part Rules
Justices Deborah Chimes and Henry J. Nowak of the Eighth Judicial District Commercial Division recen… Read More
July 15, 2016 Guest Post: Doing the Numbers on the Commercial Division: Episode One: How Big Is It, Anyway?
This is the first in a series of posts presenting a quantitative description of the Commercial Divis… Read More
July 5, 2016 Justices Oing and Scarpulla Update Part Rules
Justice Jeffrey K. Oing of the New York County Commercial Division recently updated his part practic… Read More
May 9, 2016 Justice Ostrager Posts Part Rules
Justice Barry R. Ostrager of the New York County Commercial Division recently posted his part practi… Read More
March 14, 2016 Justice Barry Ostrager Appointed to New York County Commercial Division
As reported in the New York Law Journal, Justice Barry Ostrager has been appointed to the New York C… Read More
February 21, 2016 Justices Ramos and Hudson Updates Part Rules
Justice Charles E. Ramos of the New York County Commercial Division recently updated his part practi… Read More
February 4, 2016 The Commercial Division: The Film
The Commercial Division Advisory Council and the Historical Society of the New York Courts have deve… Read More
November 18, 2015 Justices Ramos and Kornreich Update Part Rules
Justices Charles E. Ramos and Shirley Werner Kornreich of the New York County Commercial Division re… Read More
May 20, 2015 Justice Ramos Updates Part Rules
Justice Charles E. Ramos of the New York County Commercial Division recently updated his part practi… Read More
May 6, 2015 Justice Anil C. Singh Posts Part Rules
Newly-appointed Justice Singh of the New York County Commercial Division recently posted his Individ… Read More
April 13, 2015 Justice Anil C. Singh Appointed to Commercial Division
As reported in the New York Law Journal, New York County Supreme Court Justice Anil C. Singh has bee… Read More
April 8, 2015 Justice Eileen Bransten Updates Part Rules
Justice Bransten of the New York County Commercial Division recently updated her Individual Practice… Read More
March 30, 2015 Justice Jeffrey K. Oing Updates Part Rules
Justice Oing of the New York County Commercial Division recently updated his Individual Practices. … Read More
March 19, 2015 Justice Scarpulla Updates Part Rules
Justice Scarpulla of the New York County Commercial Division recently updated her part practices. … Read More
January 22, 2015 Justice Ramos Updates Part Rules
Justice Ramos of the New York County Commercial Division recently updated his part practices and tri… Read More
November 5, 2014 Justices Oing and Schweitzer Update Part Rules
Justices Jeffrey K. Oing and Melvin L. Schweitzer of the New York County Commercial Division recentl… Read More
October 4, 2014 Justice Emily Pines Updates Part Rules
Justice Pines of the Suffolk County Commercial Division recently updated her Individual Practices. … Read More
September 28, 2014 Justice Jamieson Bio and Part Rules
We have added to our practice pages the biography and part rules of Justice Linda S. Jamieson of th… Read More
September 26, 2014 Justice Emily Pines Updates Part Rules
Justice Pines of the Suffolk County Commercial Division recently updated her Individual Practices. … Read More
September 26, 2014 Justice Solomon Bio and Part Rules
We have added to our practice pages the biography and part rules of Justice Martin M. Solomon of th… Read More
June 27, 2014 Justice Jeffrey K. Oing Updates Part Rules
Justice Oing of the New York County Commercial Division recently updated his Individual Practices. … Read More
May 15, 2014 Justice O. Peter Sherwood Updates Part Rules
Justice Sherwood of the New York County Commercial Division recently updated his Individual Practice… Read More
May 6, 2014 Justice Jeffrey K. Oing Updates Part Rules
Justice Oing of the New York County Commercial Division recently updated his Individual Practices. … Read More
April 23, 2014 Justice Ritholtz Bio and Part Rules
We have added to our practice pages the biography and part rules of Justice Martin E. Ritholtz of t… Read More
March 6, 2014 Justice Saliann Scarpulla Posts Part Rules
Newly-appointed Justice Saliann Scarpulla of the New York County Commercial Division recently post… Read More
February 20, 2014 Justice Charles E. Ramos Updates Part Rules
Justice Ramos of the New York County Commercial Division recently updated his Individual Practices. … Read More
February 5, 2014 New York County Case Assignment Changes
The elevation of New York County Commercial Division Justice Kapnick to the First Department has re… Read More
January 31, 2014 Justice Saliann Scarpulla Appointed to New York County Commercial Division
On January 18, 2014, we posted that Governor Cuomo had announced the appointment of Justice Barb… Read More
January 18, 2014 Justice Kapnick Appointed to the First Department
On January 17, 2014, Governor Andrew M. Cuomo announced the appointment of Justice Barbara R. Kapn… Read More
October 15, 2013 Justice Charles E. Ramos Updates Part Rules
Justice Ramos of the New York County Commercial Division has issued supplemental part practices for … Read More
October 4, 2013 Justice Melvin L. Schweitzer Updates Part Rules
Justice Schweitzer of the New York County Commercial Division recently updated his Individual Practi… Read More