On December 4, 2020, the Board of Directors of the Courts invited public comments on the Commercial Division Advisory Council`s (“CDAC”) proposed amendment to Rule 3(a), NYCRR 22 § 202.70(g). The current wording of Rule 3 allows the court to order the appointment of an unpaid mediator to mediate a resolution of some or all of the issues raised in the dispute. CDAC`s proposal under Rule 3(a) “would allow the use of a neutral assessment as an [alternative dispute resolution mechanism”)] and would allow for the inclusion of neutral experts in court-approved lists of neutrals. Currently, according to Part 146 of the Rules of the Supreme Administrative Judge, “neutral evaluation” is “a confidential and non-binding process in which a neutral third party (the neutral expert) with expertise in the subject matter of the dispute evaluates the likely judicial outcomes of a case or case to assist the parties in reaching an agreement.” The regulations of the Supreme Administrative Court already determine the training requirements for the profession of neutral expert. On December 30, 2021, Administrative Judge Deborah A. Kaplan of the First Judicial District announced that, for legal reasons, all pending or future lawsuits filed under the Securities Act of 1933 (15 U.S.C. § 77a et seq.) will be assigned to the Honorable Andrew Borrok of the New York County Commercial Division. These types of cases, by their nature, are generally referred to the Department of Commerce when they are filed in state court. While similar consolidation orders have been issued in the past to the Commercial Division – for example, all new mortgage-backed securities cases have been consolidated into Part 60 for a given period of time – this appears to be the first time that all matters involving a particular statute have been consolidated into a single Commercial Chamber court. To proceed with consolidation, practitioners must select “Securities Act of 1933” as the case type from the drop-down menu when filing a new securities law of 1933 electronically.
For cases pending under the Securities Act 1933, practitioners must file an electronic application for judicial intervention. If you are asked the question “Will the type of action be kept as.”, “No” should be selected and the case action type updated to “Securities Act of 1933”. Earlier this year, Albany County Commercial Division Judge Richard Platkin[1] published In re New York State Dept. of Health (Rusi Tech. Co., Ltd.) [1] A decision to permanently suspend arbitration proceedings before the China International Economic and Trade Arbitration Commission (“CIETAC”) brought by a Chinese company (“Rusi”) against the New York State Department of Health (“DOH”) regarding a contract for the purchase of KN-95 masks. This decision, which dates back to the chaotic beginnings of the pandemic, is a good reminder for practitioners regarding the requirement for a “leaders` meeting” contract. For applications, contact the clerk for information on calendar calls. Most judges in New York Count don`t have a timeline for applications, but that`s not a hard and fast rule. Now, all requests are made virtually, unless the judge asks otherwise. More than two years into the COVID-19 pandemic, the Commercial Advisory Council (“CDAC”) has proposed an amendment to the Commercial Division rules that strengthens a court`s power to order virtual trials, even as many offices resume in-person operations. In particular, ARCC proposed an amendment to Rule 36 of the Commercial Division (“Rule 36”), which currently allows for virtual court hearings and proceedings with the consent of all parties. The amendment would explicitly empower courts to order virtual evidentiary hearings and court hearings without the consent of the parties, “on application for cause or ex officio.” [1] Following the recent addition of a new rule on virtual evidentiary hearings and hearings (www.pbwt.com/ny-commercial-division-blog/new-commercial-division-rule-on-virtual-evidentiary-hearings-and-trials/), the Department of Commerce last week issued Rule 37 of Section 202.70(g) of the Supreme Court Chamber of Commerce Rules.
Rule 37 is entitled “Remote Depositioning” and comes into force on December 15, 2021. In addition to Rule 37, the Commerce Division has also added Annex G as a form protocol that parties can use for remote filings. The onset of the COVID-19 pandemic in the spring of 2020 led to immense uncertainty in the markets, which strained contractual relations. In the midst of this burden, many counterparties questioned the extent to which the underlying contract contained a termination option or other safety valve that could be exercised to relieve some of the burden of its obligations. While much has already been written on the subject, a recent decision by Commercial Division Judge Joel M. Cohen adds an interesting angle to the discussion: Can a counterparty unilaterally extinguish a market-disrupting termination option through actions deemed “over-the-counter.” In Cascade Funding LP – Series 6 v Bancorp Bank,[1] Justice Cohen answered this question in the negative. A recent judgment by the Suffolk County Commercial Division highlights the risk a party faces if they accept an oral amendment to a written contract and then attempt to enforce it. In Castle Restoration LLC v. Castle Restoration & Construction, Inc.[1] Judge Elizabeth Emerson of the Commercial Division ruled that New York`s fraud law rendered an oral amendment unenforceable and ultimately left the performing party no recourse in its commercial dispute. The recent decision of the First Division in the case of Zhang Chang v.
Phillips Auctioneers LLC seems to have ended the long and turbulent dispute over Gerhard Richter`s painting of a 1963 jet fighter. The decision confirmed the discreet view that contracting parties cannot evade their obligations simply by invoking economic constraint. In Cty. Waste & Recycling Serv., Inc. v. Twin Bridges Waste & Recycling, LLC, Judge Platkin of the Commercial Division Court of Albany County considered the plaintiffs (County Waste and Recycling Service, Inc. (“County Waste”), Robert Wright Disposal, Inc. (“Wright Disposal”) and third-party defendants Waste Connections, Inc. and Waste Connections US, Inc. (“Waste Connections”)), joint claim under CPLR 3211(a)(7) and (8) to dismiss the amended counterclaims and third party action (“CCTA”) of the defendant Twin Bridges Waste and Recycling, LLC (“Twin Bridges”).
Justice Platkin`s opinion addresses various issues of anti-competitive conduct in New York State and personal jurisdiction. The Commercial Division continues to be at the forefront of introducing new rules to speed up dispute resolution, reduce costs for litigants and integrate technology into the Commercial Division`s legal practice. Just as the non-commercial department has now adopted many of the commercial department`s rules (see Administrative Decree 270/20), the following rules have recently been published: As the number of new COVID-19 cases reached record levels, the first and second divisions announced that from January 2022 until further notice, The hearings will be held virtually. The return to remote procedures is the latest challenge facing practitioners and parties during the COVID-19 pandemic. Proceedings before both Tribunals will continue to be webcast live. In a joint statement, the presidents of the first and second divisions, Rolando Acosta and Hector LaSalle, expressed hope that the two tribunals “can safely resume the personal trial in February.” [1] In the meantime, the judges pledged to “closely monitor trends regarding the virus and be prepared to adapt quickly if necessary to protect the public.” [2] Update: As a non-update to our previous post on amending Commercial Division Rule 30 to expand the scope of mandatory settlement conferences, the new amendment is now in effect. As of February 1, 2022, in each matter pending before the Commercial Division, the parties must attend a court-ordered Mandatory Settlement Conference (SCM) after filing a certificate of issuance. Under the new provision, parties must file an application for assignment to one of the following four tracks for an MSC, and all parties must send a representative with knowledge of the case and with the power to resolve it to the court-ordered MSC once assigned to one of these tracks: The 10th. November 2021 A commercial division court has ruled on a motion to dismiss Wilmington Trust Company (“WTC”) lawsuits against various parties that WTC described as the alter egos of an insolvent company.
