On June 8, 2015, the New York State Bar Association’s Federal & Commercial Litigation Section presented “An Evening with the Commercial Division Judges of the Tenth Judicial District.” The CLE event was jointly organized by the Commercial Division Committee of the Suffolk County Bar Association and the Commercial Litigation Committee of the Nassau County Bar Association.
Present at the event were all six Commercial Division Justices of Nassau and Suffolk Counties – Justices Stephen A. Bucaria, Vito M. DeStefano, Timothy S. Driscoll, Elizabeth H. Emerson, Jerry Garguilo and Emily Pines.
The discussion was moderated by Harvey Besunder, a partner at Bracken Margolin Besunder LLP and Co-Chair of the Commercial Division Committee of the Suffolk County Bar Association, and Kevin Schlosser
, a partner at Meyer, Suozzi, English & Klein, P.C. and Chair of the Commercial Litigation Committee of the Nassau County Bar Association. Robert L. Haig, partner at Kelley Drye & Warren LLP and Chair of the Commercial Division Advisory Council, was a special guest speaker.
In 2014 the Executive Committee of the Suffolk County Bar Association formed a new committee specifically for the purpose of working with the Commercial Division Justices and litigators. Since Nassau and Suffolk Counties have been aligned over the years in the practice of law, it was decided that the committee should be comprised of lawyers from both counties. The impetus for this initiative was the fact that Chief Judge Jonathan Lippman had created the Commercial Division Advisory Council in 2013, charged with the task of implementing the recommendations made by the task force chaired by former Chief Judge Judith Kaye. That Council has made a series of recommendations (many of which have already been adopted) to enhance the efficiency of the Commercial Division and to make it appealing for businesses to bring their litigation in the State Courts of New York. The Suffolk Bar group was to monitor the changes, discuss the workability with the judges, and inform the practicing lawyers. Since Justice Elizabeth Emerson was on the original taskforce and Harvey Besunder is a member of the Council, they were appointed as co-chairs of the committee.
In furtherance of the charge of Suffolk’s group, James Wicks, partner at Farrell Fritz, P.C., a member of the Suffolk Committee and incoming Chair of the New York State Bar Association Federal and Commercial Litigation Section, arranged for a joint meeting with the respective committees of the New York State, Nassau and Suffolk Bar Associations. This event was an outgrowth of that meeting.
Laurel R. Kretzing, a partner at Jaspan Schlesinger LLP and also a member of the Committee, spearheaded the event, along with Schlosser on behalf of the Nassau County Bar and Besunder on behalf of the Suffolk County Bar. Through the joint efforts of the three Bar Associations, all six Long Island Commercial Divisions Justices appeared and gave the lawyers who attended the chance to talk to the judges during the hour-long “cocktail” party and to listen to the insights that each judge discussed during the program that followed.
The program was “sold out” — there were 180 Long Island lawyers who attended and hopefully became more knowledgeable as to the new rules, how each judge views them and would implement them in their own parts. Based on the popularity of the program, it is the intention of the Bar Associations to offer similar seminars in the future so that the Bar can be apprised of the changes, the judges’ outlook and help make the Commercial Division more efficient and appealing to litigants and attorneys.
At the event, Mr. Haig provided an explanation of the process in which the Commercial Division Advisory Council develops new proposed rules for the Commercial Division. He explained that the Advisory Council has met with corporate in-house counsel to hear their concerns and that the recent rule changes were designed to better meet the needs of the business community to create an efficient and cost-effective forum for the resolution of business disputes. Mr. Haig further explained that in drafting the proposed rules, the Advisory Committee has carefully considered both the letter and spirit of the CPLR to ensure that the new rules are fully consistent with applicable law, and that the proposed rules are presented for public comment before ultimately adopted by the Chief Administrative Judge of the State of New York. He emphasized the rules allow for modification in many instances, through opting out by parties and through the discretion afforded to Commercial Division judges.
Messrs. Besunder and Schlosser then moderated a lively panel discussion among the Commercial Division Justices. The discussion started by addressing ways in which the Commercial Division Justices and their respective law secretaries and chambers could best become familiar with the ongoing rules and how to implement them. Suggestions were made for bench and bar conferences in which the Commercial Division Rules would be reviewed and discussed with Commercial Division Justices and their law secretaries.
Other topics of discussion included the new rules on expert witness discovery and resolving discovery disputes through letters and court conferences. Each of the judges who commented was in favor of more liberal expert witness discovery modelled off of the federal rules and believed that broader discovery of experts would enhance resolution of cases. There was also consensus that resolving discovery disputes through informal means, such as in person and telephone conferences, rather than through formal motion practice, was the preferred practice.
The panel then addressed the determination of dispositive motions, namely, motions to dismiss and motions for summary judgment. It was the general consensus that superfluous, redundant and/or non-essential causes of action should generally be avoided or consensually disposed of without formal motion practice. Motions for summary judgment should not be made prematurely, and generally should await the completion of relevant discovery. It was recognized that a very high percentage of motions for summary judgment in commercial cases are denied.
Each of the judges was supportive of continuing coordinated efforts between the bench and the Bar to foster the timely and cost-efficient resolution of business disputes and to enhance the Commercial Division as a preferred forum for the business community.