Recently, in F.W. Sims, Inc. v. Simonelli, Index No. 022942/2014, Doc. No. 412 (Sup. Ct., Suffolk Cnty., May 7, 2021), the Commercial Division Court denied a motion to dismiss on statute of limitation as well as full faith and credit grounds. This decision provides a good refresher on common limitations period issues that arise in commercial cases and is also an example of the impact, or lack thereof, of a settlement in a related matter.
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Patterson Belknap’s Commercial Division Blog covers developments related to practice and case law in the Commercial Division of the New York State Supreme Court. The Commercial Division was formed in 1993 to enhance the quality of judicial adjudication and to improve efficiency in the case management of commercial disputes that are litigated in New York State courts. Since then, the Division has become a leading venue for judicial resolution of high-stakes and every-day commercial disputes. This Blog reviews key developments in the Commercial Division, including important decisions handed down by the Commercial Division, appellate court decisions reviewing Commercial Division decisions, and changes and proposed changes to Commercial Division rules and practices. Our aim is to provide you with thoughtful and succinct analysis of these issues. The Blog is written by experienced commercial litigators who have substantial practices in the Commercial Division.
Litigants arguing that their adversary should be judicially estopped from pursing a particular position in litigation face a relatively high burden to invoke the doctrine successfully. Two recent decisions from Justice Borrok help illustrate the specific circumstances under which courts are most likely to estop a litigation pursuant to this doctrine.
Commercial Division Clarifies Application of “Sufficiently Close Relationship” Requirement for Pleading Unjust Enrichment Claims
Unjust enrichment offers an avenue for recovery in situations where no actual agreement exists between parties to a dispute. But this theory of quasi-contract does not apply to just any type of commercial arrangement.
On December 4, 2020, the Administrative Board of the Courts sought public comment on the Commercial Division Advisory Council’s (“CDAC”) proposed amendment to Commercial Division Rule 3(a), 22 NYCRR § 202.70(g). The current language of Rule 3 permits the court to direct, or for counsel to seek, the appointment of an uncompensated mediator for the purpose of mediating a resolution of all or some issues presented in the litigation The CDAC’s Rule 3(a) proposal would “permit the use of neutral evaluation as an [alternative dispute resolution (“ADR”)] mechanism and to allow for the inclusion of neutral evaluators in rosters of court-approved neutrals.” Currently, under Part 146 of the Rules of the Chief Administrative Judge, “neutral evaluation” is “a confidential, non-binding process in which a neutral third party (the neutral evaluator) with expertise in the subject matter relating to the dispute provides an assessment of likely court outcomes of a case or an issue in an effort to help parties reach a settlement.” The Chief Administrative Judge’s rules already set forth the training prerequisites to become a neutral evaluator.
Administrative Order 270/2020—which adopts certain Commercial Division Rules into the Uniform Civil Rules for the Supreme Court in New York—went into effect on February 1, 2021. In signing this order, Chief Judge Marks described the Commercial Division as “an efficient, sophisticated, up-to-date court, dealing with challenging commercial cases” that “has had as its primary goal the cost-effective, predictable and fair adjudication of complex commercial cases[.]” Further, he acknowledged the Commercial Division’s role in dealing with the “unique problems of commercial practice,” and praised its “function as an incubator, becoming a recognized leader in court system innovation, and demonstrating an unparalleled creativity and flexibility in development of rules and practices[.]”
As the country entered into an extended period of lockdowns this spring, there was widespread concern that the anticipated severe economic impact of the pandemic would lead to a wave of defaults and foreclosures in the commercial real estate market.