New York Commercial Division Practice

Procedure & Practice for the Commercial Division Litigator

Perhaps the most important aspect of any case is determining what your damages are.  After all, isn’t that generally the point of all our efforts – to try to recover the most amount of money?  The defendant may undeniably be the villain you make them out to be, and undoubtedly they have caused you all the harm and damage you allege.  But, a recent decision by the Honorable Saliann Scarpulla highlights the difficulty in proving…
Boy invites Girl on a date for Valentine’s Day. They agree to meet at a restaurant near Boy’s home (rude, but ok). Girl wakes up on Valentine’s Day and cancels the date once she realizes she has to travel a longer distance than she expected. Boy is left wondering what happened because they had agreed on the restaurant in advance. Girl spends Valentine’s Day with her girlfriends. While breaking the location of a date leads…
Most litigators are familiar with the requirement that a summary motion be supported with “evidentiary proof in admissible form” establishing the merits of a cause of action or defense.  Nevertheless, many practitioners make the common mistake of submitting evidence in support of a summary judgment motion that would not be admissible at trial, resulting in swift denial of the motion.  In fact, the Appellate Division, Second Department recently reversed a decision by the Nassau County…
In our last “Check the Rules” post back in December, we noted the recent additions to the Manhattan Commercial Division bench, Justices Andrew Borrok and Joel M. Cohen, and promised to report back in early 2019 on any notable practice rules in their respective Parts. My colleague Viktoriya Liberchuk’s perceptive post last week on the recent trend in the Commercial Division (and beyond) to formally encourage in-court “at bats” for young lawyers cited two specific rules from the newly-published “Practices and Procedures” for both …
Are “consequential damages” available on contract claim against an insurer in an action brought by an insured for breach of a commercial liability policy? In D.K. Prop., Inc. v. National Union Fire Ins.,  a recent case out of the First Department, the answer is a resounding “yes”.  There, the complaint alleged two causes of action, namely, breach of contract for failure to pay for covered losses and branch of the implied covenant of good faith and fair dealing. …
As a junior associate you’re typically asked to do research and draft motion papers, but you also yearn for the opportunity to argue your motion before the Court. But junior associates are usually not afforded such opportunities. Or are they? In recent years, New York judges have been making a real commitment to the development of junior associates by encouraging firms to permit junior associates to argue motions and question witnesses. Commercial Division Justices, including Justice…
Your client who was just subpoenaed to provide documents in an arbitration, advises you, but with confidence says “But we did not agree to arbitrate, so I can ignore this, right?” After some discussion, your client agrees it’s in her best interest to comply with the subpoena, but only after you promise she will not be forced to arbitrate. How can you be sure your client will not be brought into the arbitration?  A recent…
To welcome the New Year, we venture outside this blog’s traditional realm of commercial division practice and procedure to reflect on the nature of “intent” at the intersection of professional wrestling and insurer coverage liability. No, this is not a surrealist poem, but a recent decision by Justice Peter Sherwood of the Commercial Division for New York County arising from the 2015 publication of scandalous material featuring professional wrestler Terry Bollea (aka Hulk Hogan). In May…
A preliminary injunction is one of the available provisional remedies, namely, equitable relief entered by a court prior to a final determination of the merits. The relief usually orders a party to restrain from a course of conduct or compels a party to continue with a course of conduct until the action has been decided. Preliminary injunctions differ from temporary restraining orders in that TROs are usually granted pending a hearing for a preliminary injunction where…
Forum-selection clauses were once widely disfavored by many courts on the theory that such provisions operated to improperly divest the court of jurisdiction.  But now, it is well-recognized that parties to a contract may freely select a forum of their choosing to resolve a dispute arising from that contract.  In fact, forum-selection clauses are now prima facie valid unless the party seeking to avoid the enforcement of a forum-selection clause makes a “strong showing” that it…