Many real estate related disputes in New York City are heard in the Supreme Court’s  Commercial Division  In New York City, New York County, Kings County and Queens County have Commercial Division parts.

Recently, the Commercial Division Advisory Counsel, a task force created by Chief Justice Jonathan Lippman, released a series of recommendations that, if adopted, will affect the manner in which Commercial Division cases are litigated.  The recommendations include a proposed revision to the Preliminary Conference Form used in cases assigned to the Commercial Division, limits on the use of interrogatories in Commercial Division cases, a consensual program of accelerated adjudication procedures and a pilot mandatory mediation program.

The proposed new Preliminary Conference Form greatly increases its length. Its most salient new features include a section where the parties can address issues concerning electronic discovery and a section where the parties can address expert discovery.  Both of these sections appear designed to move the practice in commercial division cases closer to federal court practice.

Similarly, the Advisory Counsel’s recommendations concerning interrogatories also mirror federal practice.  The recommendations propose limiting the number of interrogatories to twenty-five and limiting the topics to the identification of witnesses,  the computation of damages and the location and custodian of relevant documents.  The proposed new rule also permits the service of contention seeking interrogatories after the conclusion of other discovery.

The Advisory Committee’s proposed  Accelerated Adjudication Program is entirely consensual, that is the parties must both opt in.  But the Accelerated Adjudication Program provides  for significant, time saving, revisions to the usual pattern of a New York State court case.  If the Advisory Committee’s program is adopted, parties may, at the outset of their case,  voluntarily waive: objections based upon lack of personal jurisdiction; the right to a jury; punitive damages claims; and the right to take interlocutory appeals.  The proposed accelerated adjudication program also contains provisions designed to significantly limit the scope of discovery.  Here, the Advisory Committee’s proposal seems to have taken its cue from arbitral forums and not the Federal Rules.

Finally, the Advisory Committee’s proposed Pilot Mandatory Mediation Program provides that one in every five cases filed in the Commercial Division would be assigned to mandatory mediation to be completed within 180 days unless all parties opted-out of  the mediation or good cause is shown that mediation would be ineffective or unjust.

The Advisory Committee’s proposals, if adopted, have the potential to significantly alter Commercial Divisions practice.  Counsel with commercial real estate practices should be cognizant of these changes.