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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 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

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

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

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

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

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

Not All “Repeated Discovery Failures” Lead to the Striking of a Pleading

So you entered into a Preliminary Conference and a Compliance Conference Order with your adversary whereby the parties have to exchange discovery by dates certain. The purpose of these orders is to save parties a significant...more

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