Does the business harm caused by COVID-19 qualify as “direct physical loss” for insurance purposes? In Spirit Airlines, Inc. v. American Home Assurance Company, Index No. 655755/2021, Commercial Division Justice Robert R. Reed held that the answer is no. In a decision announced on the record at an August 18, 2022 oral argument and entered on September 13, 2022 (see here), Justice Reed explained that his decision was dictated by the First Department’s April 7, 2022 decision in Consolidated Restaurant Operations, Inc. v. Westport Insurance Corp., 205 A.D.3d 76 (1st Dep’t 2022), and that he “follow[s] the First Department until the
Continue Reading The Commercial Division Rejects Yet Another Insured’s Claim for Coverage for Covid-Related Revenues Losses
New York Commercial Division Round-Up Blog
News & Updates on Cases Decided in the Commercial Division of the New York State Supreme Court
Blog Authors
Latest from New York Commercial Division Round-Up Blog
New York Courts Continue to Assert Personal Jurisdiction over Foreign Banks
By Shin Hahn
On January 13, 2023, the New York State Commercial Division issued a decision in Bangladesh Bank v. Rizal Commercial Banking Corp., et al., Index No. 652051/2020, that continued New York courts’ tendency to assert personal jurisdiction over foreign banks, even if their only relationship with New York is having correspondent bank accounts. …
Continue Reading New York Courts Continue to Assert Personal Jurisdiction over Foreign Banks
Commercial Division to Adopt New Rule Requiring Interlineation of Responsive Pleadings
Effective September 12, 2022, the New York Commercial Division Rules will require parties preparing responsive pleadings to “interlineate” the allegations which they are responding to within the responses themselves. Under new rule 202.70(g), titled “Interlineation of Responsive Pleadings”, counsel will essentially be required to restate the allegations of the complaint before responding to them in an answer. The rule change will likewise apply to answers to counter-claims and cross-claims.
Continue Reading Commercial Division to Adopt New Rule Requiring Interlineation of Responsive Pleadings
Judgment Creditors Beware: Moving For Contempt May Be Within Reach, But Difficult To Grasp
In the New York County Commercial Division, Justice David B. Cohen’s ruling in B&M Kingstone, LLC v. Mega Int’l Comm. Bank Ltd., 2022 NY Slip Op. 30481(U) (Sup. Ct. N.Y. Cnty. 2022) makes clear that New York courts can compel New York branches of non-US banks to disclose information relating to accounts or assets held by branches outside of the United States. It also demonstrates that obtaining such information through judgment enforcement procedures can prove difficult.
Continue Reading Judgment Creditors Beware: Moving For Contempt May Be Within Reach, But Difficult To Grasp
The Changing Landscape of Electronic Service
For a moment in March 2020, litigation stopped abruptly when the first case of COVID-19 was confirmed in New York. Within a matter of weeks, the New York State Courts shifted to online operations and, amazingly, the administration of justice continued virtually. Now, nearly two years later, the use of technology to conduct remote hearings and conferences is firmly entrenched in the legal community of New York, making it possible for judges, their support staff, attorneys and litigants to litigate from anywhere with Internet access.
Continue Reading The Changing Landscape of Electronic Service
New York Courts Continue to Enforce Broad General Releases, Even When Claims are Unforeseeable at the Time of Contract Execution
By Meghan Stuer & Ira Schulman
In Chadha v. Wahedna, 2021 NY Slip Op. 50509(U) (Sup. Ct. N.Y. Cnty. 2021), Justice Ostrager of the New York County Commercial Division, dismissed Plaintiff Nilsa Chadha’s (“Plaintiff”) claims in their entirety due to Plaintiff’s execution of a general release.
Continue Reading New York Courts Continue to Enforce Broad General Releases, Even When Claims are Unforeseeable at the Time of Contract Execution
Signing Contracts as a Representative May Lead to Individual Liability
Tharunidhar Narravula et al v. Perosphere Technologies, Inc. et al, Index No. 900410-21, Supreme Court, Albany County
In Narravula v. Perosphere Tech., 2021 NY Slip Op 50510(U) (Sup. Ct. Albany Cnty. 2021), Justice Richard M. Platkin of the Albany County Commercial Division reinforced the textbook rule that that an individual who signs a contract as an agent for an undisclosed entity can be held personally liable on the contract if the agency relationship is not disclosed.
Continue Reading Signing Contracts as a Representative May Lead to Individual Liability
The Second Department Weighs in on Tolling vs. Suspension of Statutes of Limitation Pursuant to Governor Cuomo’s COVID-era Executive Orders
In “Governor Cuomo’s “Tolling” of New York Statutes of Limitation Has Ended, But What Did It Accomplish?”, we examined the debate surrounding whether Governor Cuomo’s Executive Order No. 202.8 and subsequent orders up to and including Executive Order No. 202.67, which extended Executive Order No. 202.8 (collectively, the “Executive Orders”), actually tolled New York statutes of limitation and other litigation deadlines for the period of March 20, 2020 through November 3, 2020, or merely suspended them. For purposes of determining whether a claim or an appeal was timely filed, the answer to this question can have huge implications. …
Continue Reading The Second Department Weighs in on Tolling vs. Suspension of Statutes of Limitation Pursuant to Governor Cuomo’s COVID-era Executive Orders
Albany Commercial Division Looks Beyond “First-In-Time” Analysis When Considering Dismissal Pursuant to CPLR § 3211(a)(4)
Mac Parent LLC v. North American Elite Insurance Company, Index No. 906489/2020, Supreme Court, Albany County
On March 29, 2021, Justice Richard J. Platkin, of the Albany County Commercial Division, dismissed an insurance coverage dispute pursuant to CPLR § 3211(a)(4) due to another action that was pending in New York County, making clear that New York courts do not tolerate forum-shopping in the face of clear forum selection clauses. Mac Parent LLC v. North American Elite Insurance Company, 2021 NY Slip Op 50268(U) (Sup. Ct. Albany Cnty 2021).
Continue Reading Albany Commercial Division Looks Beyond “First-In-Time” Analysis When Considering Dismissal Pursuant to CPLR § 3211(a)(4)
Commercial Division Limits the Reach of New York’s Long-Arm Statute
By Damani Sims
In Black Diamond Aviation Grp. LLC v. Spirit Avionics, Ltd., 70 Misc. 3d 823 (Sup. Ct. Suffolk Cnty. 2020), Justice James Hudson of the Suffolk County Commercial Division limited the reach of New York’s long-arm statute, CPLR 302, in granting a motion to dismiss for lack of personal jurisdiction where the contract at issue was negotiated via emails between Ohio and Connecticut and no business was performed in New York. The plaintiff argued that the Court had jurisdiction over defendant pursuant to CPLR 302(a)(1), which provides, in pertinent part, that a party will be subject to the jurisdiction of New…
Continue Reading Commercial Division Limits the Reach of New York’s Long-Arm Statute
The New Normal? An Update On Commercial Division Operations
By Bradley Rank
COVID-19 has ushered in a new era for litigation in the Commercial Division. Here are the key developments litigants should be aware of.
Remote Appearances and No Paper Copies
In May 2020, e-filing in the Commercial Division resumed in earnest, with a few important differences from the status quo ante:
…
Continue Reading The New Normal? An Update On Commercial Division Operations
Governor Cuomo’s “Tolling” of New York Statutes of Limitation Has Ended, But What Did It Accomplish?
Statutes of limitation were “tolled” in New York by Executive Order No. 202.8, issued by Governor Andrew M. Cuomo on March 20, 2020 in response to the COVID-19 pandemic. Over the next six-and-a-half months, that toll was renewed by further executive order every 30 days until, on October 4, 2020, the Governor issued Executive Order No. 202.67, announcing that the tolling order would be extended for only one more 30-day period—“until November 3, 2020, and after such date [statutes of limitation] will no longer be tolled.”…
Continue Reading Governor Cuomo’s “Tolling” of New York Statutes of Limitation Has Ended, But What Did It Accomplish?
The New York State Courts Have Suspended Most Court Filings as of March 22, 2020
By Bradley Rank
On Sunday, March 22, 2020, pursuant to Administrative Order AO/78/20 of Chief Administrative Judge Lawrence Marks, the New York Unified Court System took the drastic step of suspending all filings (both paper and e-filing) in all but a select few types of cases in all New York Courts. The Order provides that:
…effective immediately and until further order, no papers shall be accepted for filing by a county clerk or a court in any matter of a type not included on the list of essential matters attached as Exh. A. This directive applies to both paper and electronic filings.
Continue Reading The New York State Courts Have Suspended Most Court Filings as of March 22, 2020
Commercial Division Justices Provide Dueling Approaches to Discovery Stays in State Court Securities Litigation
By Kate Ross
In In re Everquote, Inc. Securities Litigation, 2019 N.Y. Slip Op. 29242, No. 651177/2019, 2019 WL 3686065 (Sup. Ct. N.Y. Cnty. Aug. 7, 2019), Justice Andrew Borrok of the New York County Commercial Division stayed discovery pending a motion to dismiss a federal securities class action pursuant to the Private Securities Litigation Reform Act of 1995 (the “PSLRA”), diverging from the handful of state courts that have grappled with that statute’s application since the Supreme Court’s ruling last year in Cyan, Inc. v. Beaver County Employees Retirement Fund, 138 S.Ct. 1061 (2018) (“Cyan”). The PSLRA provides for an automatic discovery…
Continue Reading Commercial Division Justices Provide Dueling Approaches to Discovery Stays in State Court Securities Litigation
Commercial Division Denies Plaintiff’s Request for Additional Time to Serve Complaint After Plaintiff LLC Failed to Appear Through Counsel
By Jean Ripley
Pursuant to New York Civil Practice Law and Rules § 306-b, a plaintiff is required to serve a summons and complaint within 120 days of commencing an action. Although a court may grant an extension of this deadline for good cause shown or in the interests of justice, Judge Richard M. Platkin recently found that neither justified an extension of the plaintiff’s time to serve its summons and complaint in Plank, LLC v. Dutch Village, LLC, et al., 62 Misc. 3d 1220(A) (N.Y. Sup. Ct. Feb. 7, 2019). In that case, the Court rejected any argument that the plaintiff’s failure…
Continue Reading Commercial Division Denies Plaintiff’s Request for Additional Time to Serve Complaint After Plaintiff LLC Failed to Appear Through Counsel
Chief Judge DiFiore Announces Expansion of Commercial Division to Bronx County
During her annual State of Our Judiciary speech on February 26, 2019, Chief Judge Janet DiFiore announced that the Commercial Division would be expanding to Bronx County. As stated by Chief Judge DiFiore, the expansion is “in recognition of the economic resurgence taking place in the Bronx” and “the number of commercial cases filed in Bronx Supreme Civil.” Although the change was effective on April 1, 2019, the Commercial Division has yet to announce which justices will be assigned to these new Commercial Division openings or amend the Commercial Division Rules to provide for, among other things, a jurisdictional threshold…
Continue Reading Chief Judge DiFiore Announces Expansion of Commercial Division to Bronx County