NY Commercial Division Blog

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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. It is edited and managed by Stephen P. Younger and Muhammad U. Faridi, who spearheaded the publication of the New York Commercial Division Practice Guide, which is part of Bloomberg Law's Litigation Practice Portfolio Series.

Judges Chan and Crane Are Assigned as New Commercial Division Judges

Hon. Margaret Anne Pui Yee Chan and Hon. Melissa A. Crane have been assigned to the Commercial Division of Supreme Court, New York County.

Judge Chan’s assignment to the Commercial Division follows an eight-year stint as an Acting Supreme Court Justice in the Civil Term for New York County, beginning in 2013.  Prior to her designation to the Supreme Court, Judge Chan had served as a Civil Court Judge in New York County, where she began her judicial career in 2007.

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Commercial Division Finds Movie Theater Not Entitled to Business Interruption Coverage for COVID-19 Closures

Last summer, we wrote about two principles of New York law that could provide a path to insurance coverage for businesses hit hard by the economic losses resulting from Governor Cuomo’s COVID-19-related shutdown orders.  Although we noted that businesses seeking such coverage would likely face an uphill battle, we proposed that recovery under certain business interruption policies might be available in New York because: 1) an insurable loss of use occurred even without physical damage to the covered property; and/or 2) the policy’s “civil authority” clause extended to closures resulting from Governor Cuomo’s orders.

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Stay Up to Date on Recent Changes to New York’s Commercial Division Rules – CLE Held on Division Rules Changes and Application of Commercial Rules to Other Court Parts

A CLE was recently presented by the Columbian Lawyers Association of the First Department on February 3, 2021 to offer guidance on the latest rule changes affecting the New York State Courts and the Commercial Division in particular.  At that program, Commercial Division Blog editor Stephen P. Younger of Patterson Belknap, along with Rosanne E. Felicello, Michael James Maloney, and Kristie Blase of Felicello Law P.C., gave guidance to judges and litigators who focus on commercial disputes, as well as many who practice in other court parts.

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First Department Issues First Ruling Dismissing Securities Act Claims Following the U.S. Supreme Court’s Cyan Decision

As New York commercial practitioners will recall, the U.S. Supreme Court in Cyan, Inc. v. Beaver Cty. Emps. Ret. Fund held that state and federal courts have concurrent jurisdiction over class actions alleging violations of only the Securities Act of 1933 (the “1933 Act”) and, further, that defendants in such suits filed in state court cannot remove those actions to federal court to avoid state-court jurisdiction.  Not surprisingly, this development has led to an increase in the filing of securities claims in state courts.

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Court of Appeals Holds Bankruptcy Law Does Not Preempt Lender’s Tortious Interference Claims Against Third-Party Non-Debtors

In Sutton 58 Associates LLC v. Pilevsky, the New York Court of Appeals recently held in a 4-3 split decision that, under certain circumstances, bankruptcy law does not preempt a lender’s state law claims against third-party non-debtors for tortious interference with a contract between the lender and the debtor.  This decision preserves a state forum for lenders asserting claims that: 1) involved “wrongful conduct by non-debtor defendants that occurred prior to the bankruptcy proceeding,” and 2) are “grounded in independent contractual obligations."

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Justice Robert Reed Appointed to New York County Commercial Division

On Monday, just days after Justice Peter Sherwood and Justice Marcy Friedman announced their upcoming retirements from the bench, the Chief Administrative Judge announced the news that Justice Robert Reed—currently a New York Supreme Court Justice—will start receiving Commercial Division cases in the next few weeks. 

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Commercial Division Dismisses Petition to Dissolve LLCs Based on Broadly Stated Purpose Provision

In Lazar v. Attena LLC, Justice Andrea Masley of the New York County Commercial Division granted Arik Mor and Uriel Zichron’s (together, “Respondents”) motion to dismiss a petition to dissolve three limited liability companies, Attena LLC, Hemera LLC, and Nessa LLC (collectively, the “LLCs”).  The Court’s opinion addressed whether the LLCs should be dissolved on the ground that they were no longer functioning in accordance with their stated purpose, which was defined broadly to include “any lawful business purpose.”

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Commercial Division Considers Effects of COVID Executive Orders on Use and Occupancy Payments for Real Estate

A recent ruling by the Kings County Commercial Division offers a glimpse into how courts in New York may resolve COVID-19-related disputes regarding leases and real property, as well as how courts may handle situations in which the Governor’s executive orders, intended to stem the spread of COVID-19, have affected the abilities of parties to follow court orders issued prior to the pandemic. 

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Commercial Division Sees Uptick, Followed by Flattening in Case Filings

The New York County Commercial Division saw a substantial increase in the number of new cases filed (i.e.,a total of 102 new cases) during the first four-week span after the New York courts re-opened for non-essential matters on May 25, 2020—as compared to both February 2020 (77 new cases), the last full month of filings prior to the crisis, and a comparable period between May 27 and June 23, 2019 (87 new cases).

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New Oral Argument Protocol at the First Department

On August 17, 2020, the Appellate Division, First Department announced that starting in the September term, and continuing until further notice, it will hold oral arguments both in-person at the courthouse and remotely via Microsoft Teams.  In-person oral arguments will be held on Wednesdays and remote oral arguments will be held on Tuesdays, Thursdays, and Fridays. 

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Second Department to Allow Virtual Option for Oral Arguments

Starting on September 8, 2020 and continuing indefinitely, litigants eligible for oral argument in the Second Department will be given the option of arguing in person, via Microsoft Teams, or submitting.  Notice must be sent to the court and other litigants no later than three days prior to the date on which the matter is calendared.  If there is a divergence of opinion among litigants, the court will determine how oral argument will be heard or whether the matter will be marked submitted.  Members of the public are still not permitted to attend oral argument at the courthouse.

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Appellate Division, First Department Expands Mandatory E-filing

The Appellate Division, First Department has expanded the categories of appeals subject to e-filing through the New York State Court Electronic Filing System (NYSCEF).  Effective July 27, 2020, e-filing is now mandatory for all matters originating in Supreme Court, Criminal Term; Family Court; Surrogate’s Court; and Court of Claims in Bronx and New York Counties.  With this expansion, e-filing is now mandatory for all matters before the First Department, except Original Special Proceedings and Attorney Matters.

The expansion applies to appeals that have already been perfected, and is required regardless of whether the matters were e-filed at trial level.  Attorneys in matters where notices of appeal have been filed are encouraged to immediately enter the initial information required for e-filing under 22 NYCRR § 1245.3.  There are separate 22 NYCRR § 1245.3. considerations for criminal and family matters with assigned counsel, and such practitioners should consult the notice to the bar.

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New York Court of Appeals Resumes In-person Filings

On July 22, 2020, the New York Court of Appeals announced that the Court of Appeals Hall in Albany is now open for in-person filings.  The Court will continue to accept mailed and electronic submissions as permitted by its rules.  Those seeking to file papers in person will be screened at the Court’s Eagle Street entrance before entering in accordance with New York’s COVID screening protocol.

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Business Interruption Recovery in New York—Two Cases Might Help

In the wake of punishing economic losses caused by Covid-19-related shutdown orders, business owners across New York have turned to their insurers for temporary relief in the form of business interruption coverage. If recent reports are any indication, however, New York businesses will face an uphill battle.

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Updates on COVID-19’s Impact on Commercial Appeals: New York Court of Appeals Expands Digital Filings, While the Appellate Division Lifts Moratorium on Filing Deadlines and Hears Skype Argument

Originally published May 21, 2020.

The progress of taking commercial appeals in New York has been impacted significantly by the onset of the COVID-19 pandemic.  Deadlines for perfecting appeals were suspended and oral arguments were canceled. Although Skype conferences were being held in the trial level courts, such as the Commercial Division, arguments were not being scheduled on typical appeals. Recently, as Chief Judge Janet DiFiore has overseen a gradual re-opening of significant portions of the New York courts, there have been material developments in appellate practice which affect commercial litigators.  These developments reflect a sense that appeals are starting to move forward again, albeit with the naturally attendant backlogs that the COVID-19 crisis has engendered.

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New York State Courts Begin Reopening Process As Some Upstate Regions Meet Initial State Reopening Criteria

Chief Judge Janet DiFiore recently announced that New York state courts have begun the process of re-opening the in-person court system and increasing the capacity of new matters that may be filed in New York state courts.  The courts that are beginning the physical reopening process are located within New York’s Third, Fourth, Fifth, Sixth, Seventh, and Eighth judicial districts.  Those districts roughly cover the regions of New York that do not include New York City and the surrounding suburbs.  Electronic filing of new non-essential cases also, to the extent permissible prior to the COVID-19 crisis, resumed on Memorial Day, May 25th, 2020.

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    E-Filing of New, Non-Essential Matters to Resume

    On May 20, 2020, Justice Lawrence Marks, the Chief Administrative Judge of the New York Unified Court System, issued a memorandum announcing that, effective May 25, 2020, “e-filing through the NYSCEF system – including the filing of new non-essential matters – will be restored in those counties of the state that have not yet met the benchmarks required to participate in the Governor’s regional reopening plan.”  Those counties include the five counties that comprise New York City, as well as Nassau, Suffolk, Dutchess, Orange, Putnam, Rockland, Sullivan, Ulster, and Westchester.

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    Phase One Re-Opening of In-Person Court Operations

    On May 13, 2020 the New York State Unified Court System announced a plan for the gradual return of judges, clerks, and court staff to courthouses in select upstate counties—with litigants being able to electronically file new cases in those counties.[1] 

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    Governor Andrew Cuomo Extends Tolling of Statute-of-Limitations

    On May 7, 2020, New York Governor Andrew Cuomo issued Executive Order 202.28, which, among other things, “continue[d] the suspension and modifications of laws, and any directive, not superseded by a subsequent directive, made by Executive Order 202 and each successor Executive Order up to and including Executive Order 202.14, for thirty days until June 6, 2020, except as modified” in the May 7, 2020 Executive Order.

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    New York Courts Expand Virtual Operations Amid COVID-19 Emergency

    Updated

    May 4, 2020 - Update: On May 4, 2020 Chief Administrative Judge Marks promulgated an order that codifies the new policies delineated in his memorandum of April 30, 2020 and discussed in the below “Update” of May 1, 2020.

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    COVID-19 Webinars Presented by Editors of the Blog

    On April 17, 2020, Stephen Younger, Muhammad Faridi, and Timothy Smith presented a webinar for the Practicing Law Institute titled “COVID-19’s Impact on Commercial Transactions and Disputes.” This one-hour program addressed the legal challenges that many businesses may be facing in the wake of the pandemic.  Muhammad and Tim discussed...
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    Chief Judges Announce Plan for Virtual Court Proceedings and Resumption of Non-Essential Matters in the Commercial Division and Other Courts

    Updated

    Update: Chief Administrative Judge Marks has promulgated an order that makes the plans detailed below effective as of April 13, 2020.  The order also notes that video conferences will be administered exclusively through Skype for Business.

    As an update to our earlier post on COVID-19’s effect on the Commercial Division, Chief Judge Janet DiFiore and Chief Administrative Judge Lawrence K. Marks recently announced that as of April 6, 2020, all essential proceedings across New York State are now being handled by the New York courts virtually, with judges, attorneys, and most nonjudicial staff participating in those proceedings remotely.  Additionally, Chief Judge DiFiore and Chief Administrative Judge Marks announced their preliminary plans for handling non-essential matters, which are as follows:

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    Gov. Cuomo Tolls Procedural Laws Including Statutes of Limitations

    On March 20, 2020, in order to limit court operations in light of the evolving COVID-19 emergency, Governor Cuomo issued Executive Order 202.8.   That order, among other things, tolls through April 19, 2020 “any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state[.]”  This order means that parties who are facing a deadline to file a civil action have an extension up and until April 19, 2020 in order to do so, unless a further extension of this deadline is granted.

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    Failure to State the “Obvious” Does Not Give Rise to a Securities Violation

    Commercial Division Justice Andrew Borrok recently issued a decision in Lonny Matlick et al. v. AmTrust Financial Services, Inc., addressing the following question: 

    Can an issuer be held liable under the Securities and Exchange Act of 1933 for the failure to disclose the risk that certain securities could be delisted when the issuer never guaranteed the listing of such securities in the first instance? 

    The answer, as Justice Borrok explained, is no.

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    COVID-19’s Effect on New York Commercial Division

    Over the last few days, Judge Lawrence K. Marks, the Chief Administrative Judge of the New York State Unified Court System, issued two memoranda bearing on COVID-19’s effect on the Commercial Division.

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    Second Department Affirms Decision Declaring Invalid an Assignment of an LLC Interest

    In Behrend v. New Windsor Group, LLC, the Second Department affirmed the denial of Plaintiff Julius Behrend’s (“Behrend”) motion for summary judgment in his action seeking a declaratory judgment that he held a membership interest in defendant New Windsor Group, LLC (“New Windsor”) or an interest in New Windsor’s assets.[1]  The Court’s decision affirmed a ruling by former Queens County Commercial Division Justice Martin E. Ritholtz. The opinion addressed the effect of a putative assignment of interest in New Windsor from Joseph Klein (“Klein”) to Behrend pursuant to a memorandum of understanding between them.  Behrend failed to seek consent to the assignment from New Windsor’s managing member, Andrew Perkal (“Perkal”), as was required by New Windsor’s operating agreement.

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    Second Department Applies De Facto Merger Doctrine and Veil Piercing in Recent Appeal

    On January 29, 2020, the Second Department affirmed a Suffolk County Commercial Division decision applying both the de facto merger doctrine and the veil piercing doctrine.  Each doctrine often plays an important role in determining whether plaintiffs in business disputes can recover from certain entities and their owners who are not signatories to operative agreements.  The Second Department’s analysis in reviewing a decision by Justice Elizabeth Hazlitt Emerson of the Commercial Division provides a helpful review of these concepts.

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    Commercial Division Opinion Suggests that Subcontractor Can Potentially Recover From General Contractor and Property Owner for Work Outside Scope of Subcontract

    Suppose a property owner hires a general contractor for a time-sensitive project.  The general contractor in turn hires a subcontractor.  After the project hits some snags and delays, the property owner tries to move things along by assuring the subcontractor that it will get paid for certain additional tasks that the owner requests.  However, the subcontractor never enters into a formal written agreement covering the additional work.  If the subcontractor is not fully paid for the work, can it successfully sue the property owner, the general contractor, or both for contractual or quasi-contractual damages?  A recent decision by Justice Andrea Masley of the Commercial Division in Corporate Electrical Technologies, Inc. v. Structure Tone, Inc., suggests that in certain circumstances, the answer is yes: the subcontractor can recover from the property owner or the general contractor for the additional work, even absent a written contract covering that work, based on the parties’ course of conduct.

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    First Department Holds Source Code to Be a Trade Secret and Defines Bounds of Judicial Proceedings Privilege

    On November 12, 2019, in BEC Capital, LLC et al. v. Bistrovic et al., 177 A.D.3d 438 (1st Dep’t 2019), the Appellate Division, the First Department issued a decision reversing an order of the Commercial Division and holding that the Defendants’ source code is a trade secret, and therefore should have been ordered to be produced under an “attorneys and expert eyes only” form of review.  The First Department also held that an email produced prior to the litigation was not subject to privilege from defamation and thus could support Defendants’ counter-claim for defamation.

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    Seventh Judicial District Assigns New Justice

    Justice Craig Doran, the Administrative Judge of the Seventh Judicial District, assigned Justice J. Scott Odorisi to the Commercial Division.  Justice Odorisi replaces Justice Matthew Rosenbaum.  Justice Odorisi was elected to the New York State Supreme Court in 2013 and worked in private practice before going on the bench.

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    Patterson Belknap Publishes an Updated, Second Edition of the New York Commercial Division Practice Guide

    Patterson Belknap Webb & Tyler LLP is pleased to announce the publication of the second edition of its New York Commercial Division Practice Guide.  As with the first edition, the guide is organized into various chapters drafted by Patterson Belknap lawyers.  Each chapter contains useful information about litigating in the Commercial Division of the New York State Supreme Court, and an excerpt is available to download here.

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    Commercial Division Applies Noerr-Pennington Doctrine to Dismiss Claim for Unlawful Retaliation

    In Pozner v. Fox Broadcasting Co., Justice Saliann Scarpulla of the Commercial Division dismissed plaintiff Cliff Pozner’s (“Pozner”) retaliation claim, which alleged that counterclaims filed against him by defendant Fox Broadcasting Company’s (“Fox”) constituted unlawful retaliation in violation of the New York Executive Law and the New York City Administrative Code.  The Court’s decision addressed an issue of first impression in New York: i.e., whether the Noerr-Pennington doctrine—which holds “‘that parties may not be subjected to liability for petitioning the government’ such as by filing litigation”—may be applied in the context of unlawful retaliation claims.

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    Commercial Division Declines to Stay Securities Case in Deference to Later-Filed Federal Action

    In Matter of GreenSky, Inc. Sec. Litig., Justice Jennifer G. Schecter of the Commercial Division denied defendants’ motion to stay the state court action pending resolution of a later-filed, federal action involving virtually identical claims made under the Securities Act of 1933 (“1933 Act”).   Justice Schecter did grant defendants’ alternative request for a stay of discovery pending the court’s decision on their motion to dismiss.  The court’s decision addressed: 1) whether state courts should stay 1933 Act cases in deference to federal cases involving similar claims; and 2) whether the Private Securities Litigation Reform Act of 1995 (the “Reform Act”) requires a stay of discovery in state court pending the court’s decision on a motion to dismiss.

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    Commercial Division Allows Successor Liability Claims to Proceed on “Mere Continuation” Theory

    A corporation that acquires the assets of another is generally not liable for the pre-existing liabilities of the acquired corporation.  However, as the Commercial Division’s recent decision in 47 East 34th Street (NY), L.P. v. BridgeStreet Worldwide, Inc. demonstrates, there is an exception to this rule when the successor is deemed to be a mere continuation of the acquired corporation.  In 47 East 34th Street, Justice Andrew Borrok relied on the mere continuation doctrine to deny a motion to dismiss claims asserted against a successor guarantor to a lease that had acquired the assets of the original guarantor through a consensual foreclosure.

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    Commercial Division Rules that Arbitration Awardee Lacked Standing to Enforce Award Based on Collection Procedures Agreed to in the Underlying Contract

    Arbitration is a creature of contract and, as such, enforcing an arbitral award requires strict adherence to the procedures set forth in the relevant agreements.  This is true even where those procedures might preclude a party to the arbitration from taking steps to enforce its own award. In Zachariou v. Manios, Justice Andrea Masley of the Commercial Division dismissed an awardee’s enforcement action for lack of standing on the ground that the relevant arbitration agreement conferred exclusive authority over collecting and enforcing party distributions to a third-party trustee—and not to the plaintiff.

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    Commercial Division Prevents End-Run Around Rule Precluding Judicial Dissolution of Foreign Business Entities

    In Matter of Raharney Capital, LLC v. Capital Stack LLC, the First Department held that New York courts lack subject matter jurisdiction over foreign company dissolution proceedings. Now, a recent Commercial Division decision rendered by Justice Saliann Scarpulla, Rosania v. Gluck, has clarified that the Raharney rule also applies to litigants’ attempts to obtain equitable relief associated with a judicial dissolution of a foreign business.

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    The First Department Rules that Plaintiff Failed to Allege an Actionable Fiduciary Duty Claim

    Last month, the First Department in Madison Sullivan Partners LLC v. PMG Sullivan St., LLC, 2019 N.Y. Slip Op. 04460 (June 6, 2019), affirmed the decision of former Commercial Division Justice Shirley Werner Kornreich that the Plaintiff in a LLC dispute failed to sufficiently allege a breach of fiduciary duty claim. The case concerned the parties’ relationship in a joint venture to develop Manhattan real estate as a mixed use project that was formed using several LLCs.  In a detailed amended complaint, the Plaintiff alleged that Defendants collected monthly sums for work on a construction project for the venture, when Defendants were not actually working on the construction project but instead pursuing their own ventures.  

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    Commercial Division Advisory Council Highlights the Benefits of the Commercial Division to the State of New York

    The Commercial Division Advisory Council recently released a memorandum describing the benefits that the Commercial Division offers to the State of New York.  The memorandum highlights the many advantages of having a dedicated business court for the state and business and legal communities.   It is worth a read for any lawyer whose practice focuses on business disputes.

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    Appellate Division Holds that Arbitrator Has Power to Dissolve Partnership

    In Matter of Capital Enterprises Co. v. Dworman, the Appellate Division, the First Department held that an arbitrator has broad discretion to order the dissolution of a New York general partnership, so long as the issue of dissolution was within the scope of the arbitration clause and the question of whether to dissolve the partnership was properly before the arbitrator.  In so doing, the First Department affirmed an order issued by Commercial Division Justice Jennifer G. Schecter which confirmed an arbitration award that had ordered a dissolution of a partnership.

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    Commercial Division Justices Gather to Discuss Motion Practice

    On Wednesday June 5, 2019, all eight of the New York County Commercial Division justices participated on a panel for the New York State Bar Association’s Commercial and Federal Litigation Section on “Motion Practice Before the Commercial Division.”  Motion practice is one of the most frequently used aspects of practice in the Commercial Division.  The format was an informal question and answer session on motion practice, moderated by the Section’s Past Chair, Robert Holtzman.

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    Sharply Divided Court of Appeals Upholds Waiver of Declaratory Relief by Commercial Tenants

    In a closely watched appeal, the Court of Appeals affirmed by a 4-3 vote that a waiver contained in a commercial lease of the right to bring a declaratory judgment action is enforceable and not contrary to public policy.  The case, 159 MP Corp. v. Redbridge Bedford, LLC, No. 26, was not brought in the Commercial Division, but will have a significant impact on the drafting and enforcement of commercial leases.

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    New York Announces Statewide “Presumptive” Alternative Dispute Resolution Program

    On May 14, 2019, the New York State Unified Court System announced that it will begin rollout and implementation of a “presumptive” alternative dispute resolution (“ADR”) program.[1]  Under the new program, parties in civil cases will be referred to either mediation or some other form of ADR as an initial step for most lawsuits filed in New York State courts.  The “presumptive” ADR program will apply to a broad range of civil cases, including commercial disputes.

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    Commercial Division Decision Applies Issues Frequently Considered on Motions to Dismiss

    In considering a motion to dismiss related to a real estate development joint-venture gone bad, a recent decision by Justice Andrea Masley in 3P-733, LLC v Davis (No. 650800/2018 [N.Y. Sup. Ct., N.Y. Cty., April 2, 2019]) highlights several issues that frequently arise at the motion to dismiss stage in the Commercial Division.

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    The First Department Reconsiders Approval of a Class Action Settlement

    On April 11, 2019, the First Department unanimously affirmed a decision issued by Justice Shirley Werner Kornreich, formerly of the Commercial Division, which denied the plaintiffs’ motion for final approval of a class action settlement in City Trading Fund v. Nye (2019 NY Slip Op 02789). This was the second time the Appellate Division had considered Justice Kornreich’s denial of approval of a settlement in this case, having reversed her prior denial of preliminary approval of the settlement in November 2016 and remanding the case for a fairness hearing in order to review the settlement terms.

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    Commercial Division Decision Illustrates Potential Issues that May Arise in CPLR Article 52 Turnover Order Proceedings

    A party seeking to enforce a judgment against an asset of a judgment debtor that is held by a third party may petition for a turnover order through a special proceeding provided for by CPLR Article 52.  Justice Saliann Scarpulla’s recent decision in The Wimbledon Fund, SPC (Class TT) v. Weston Capital Partners Master Fund II, LTD (Wimbledon) illustrates several of the potential issues that may arise during such a proceeding.

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    Commercial Division Is Coming to the Bronx

    At her annual State of the Judiciary speech held on February 26, 2019 at Bronx County Supreme Court, Chief Judge Janet DiFiore announced that the Commercial Division will be expanding to Bronx County, effective April 1, 2019.  The Chief Judge explained that this expansion was in recognition of the Bronx’s ongoing economic resurgence and the growing number of commercial cases being filed there.  There has not yet been any announcement as to the jurisdiction of this new part or which judges will be assigned to it.  

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