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Unpacking the (Un)Reasonableness of Non-Compete Provisions

New York law generally does not favor non-compete agreements, viewing them as unreasonable restraint of trade. As a result, New York courts apply a rigorous standard when deciding whether to enforce these restrictive...more

“Enough is Enough” Says Commercial Division in Discovery Dispute: Strikes Party’s Pleading

A recent decision from the Manhattan Commercial Division reminds us of the ramifications of non-compliance with discovery obligations. Although in my experience courts (especially the Commercial Division) typically do not...more

Affirmation in Lieu of an Affidavit, Now “with the Same Force and Effect”

As of January 1, 2024, the amended CPLR 2106 concerning affirmations provides that - [t]he statement of any person wherever made, subscribed and affirmed by that person to be true under the penalties of perjury, may be...more

Commercial Division Grants $1 Million Punitive-Damage Award for Diversion of Company’s IP in Breach of Fiduciary Duty

A recent decision from the Manhattan Commercial Division reminds us that although punitive damages are generally not recoverable in New York, certain circumstances require that they be awarded. In Hall v Middleton,...more

Commercial Litigation in New York State Courts, 5th Edition Chapter 39, “Practice Before the Commercial Division”: A Review

As frequent readers of this blog are no doubt aware, the ten-volume practice treatise entitled Commercial Litigation in New York State Courts and edited by distinguished commercial practitioner Robert L. Haig (the “Haig...more

A RICO Claim in an Ordinary Business Dispute? Not So Fast, Says the Commercial Division

Courts continue to refer to federal Racketeering Influenced and Corrupt Organizations Act (“RICO”) claims as “potent weapons” that are equivalent to a “thermonuclear device” in cases involving criminal racketeering activity....more

Oral Modifications to Written Agreements? Better Get Them in Writing Says the Commercial Division

In Castle Restoration & Constr., Inc. v Castle Restoration, LLC, Suffolk County Commercial Division Justice Elizabeth H. Emerson refused to enforce an oral agreement that allegedly modified a prior written agreement between...more

Oops! They Did it Again: New York Courts Continue to Dismiss Lawsuits Based on Contractual Disclaimers

A few weeks ago, I blogged about the Arco Acquisitions, LLC, v Tiffany Plaza LLC et al. decision, in which Suffolk County Commercial Division Justice Elizabeth Hazlitt Emerson held that the plaintiff’s fraud claims were...more

Fraud Claims Dismissed Based on the “As Is, Where Is, and With All Faults” Contractual Provision

Nobody likes fraud claims asserted against them. Thankfully for defendants, fraud claims are notoriously difficult to prove, and defendants often try to have these claims dismissed at the pleading stage....more

New Supreme Court Rule on Summary Judgment Motions: “Just the Facts, Ma’am”

Practitioners often choose to practice in the Commercial Division because of its well-documented efficiencies.  Thus, many were happy to hear that Chief Administrative Judge Larry Marks issued Administrative Order 270/2020...more

“Single Breach” vs. “Continuing Wrong”; the Continuing Wrong Doctrine Prevails, Saving Plaintiff’s Claim from Dismissal

A cause of action accrues, triggering the commencement of the statute of limitations period, when “all of the factual circumstances necessary to establish a right of action have occurred, so that the plaintiff would be...more

Court explores the balance between a lawyer’s obligation to investigate the facts, and a lawyer’s reliance on what the client...

Pursuant to Part 130 , attorneys are obligated to undertake an investigation of a case.  But is an attorney responsible for ignorance of facts which the client neglected to disclose?  “No,” says the Commercial Division....more

To Redact, or Not to Redact, That is the Question

You now have to collect, review and produce documents pursuant to the preliminary conference order.  And so, in collecting documents from the various custodians, it appears some of the documents contain truly “irrelevant”...more

Remote depositions in the wake of the coronavirus COVID-19 pandemic? Here’s how

The COVID-19 pandemic has had widespread impact on litigation, with some courts and most cases coming to a screeching halt.  Some courts have responded with Orders or rules (Massachusetts Sup. Jud. Ct. Order OE-144 [March 20,...more

Plaintiffs Cannot Rely on the Doctrine of Anticipatory Repudiation As Plaintiffs Are Already in Material Breach of the Contract

A life lesson you likely heard growing up applies to contracts: take a hard look at yourself before criticizing others. By the same token, a party who is in material breach of a contract cannot succeed on a claim alleging an...more

Hyperlinks Requirement in the Commercial Division . . . The Latest Proposal from the Advisory Council

Following the lead of several federal courts, hyperlinks in legal briefs in the Commercial Division appear to be well on the way!  The Commercial Division Advisory Council (“Advisory Council”) has announced a new proposal,...more

Brief Introductory Call with a Law Firm is Not Enough to Disqualify It From Representing Another Party in the Lawsuit

Lawyers often get phone calls from prospective clients seeking guidance on various issues – general legal inquiries, asking a variety of general questions about laws, codes, regulations, and statutes, or questions concerning...more

Economic Justification for the Win – Defeating a Tortious Interference Claim

Consider this situation: You are a shareholder of a company who is about to enter into a contract with a third party. But you know that this is a bad deal that will negatively impact the company....more

Litigator's Toolkit: Know the Law, Know the Rules, Know your Judge

We all know that understanding the law is a first step to good lawyering. But understanding what the particular judge assigned to your case likes and dislikes, and her pet peeves is just as important for your success as an...more

Back to Basics: Long-Arm Statute 101

Reflecting on your first year of law school, you begrudgingly remember learning about personal jurisdiction and the long-arm statute. As a commercial litigator, one of your first questions in representing a defendant should...more

A Prior Inconsistent Statement Is Not Necessarily Your Road to Judicial Estoppel

You have been engaged in extensive motion practice in the Supreme Court of the State of New York. You learn that your adversary, it appears, has taken a position contrary to the one taken in a prior proceeding. These...more

Commercial Division Rules in Favor of … “The Junior Associate”

As a junior associate you do research and draft motion papers and yearn for the opportunity to argue your motion before the Court. But junior associates are usually not afforded such opportunities. ...more

Technology-Enabled Courtrooms Coming to the Commercial Division

Tired of printing hundreds of thousands of documents and carrying numerous boxes of documents to court? The New York Commercial Division has heard your cry. ...more

General Release Bars Family from Recovering Art from the Holocaust

A general release: the end of a litigation or relinquishment of a right? Every attorney and litigant often breathes a sigh of relief when a litigation comes to a conclusion. But is that always the case? Not when the release...more

“Unnecessary and Inappropriate”: The declaration no one wanted

Your client wants to recover damages for breach of contract and demands that you assert as many causes of action as possible. In addition to the breach cause of action, you consider a declaratory judgment claim, right? ...more

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