New York Business Lawsuit Defense & Prosecution Guide
Practical steps for New York businesses and stakeholders on defending and prosecuting civil lawsuits, from forum selection and pleadings to discovery, settlement, trial, and post-judgment practice. Includes timelines, strategy considerations, and links to key New York rules. Details vary by case—consult counsel.
Who This Guide Is For
This guide is for New York businesses, executives, in-house counsel, and investors facing or considering commercial litigation in New York Supreme Court (the state trial court) or in the federal district courts located in New York. It covers both defense and plaintiff-side prosecution, with emphasis on preserving rights, managing cost and risk, and aligning litigation with business goals.
Choosing the Right Forum and Venue
Commercial disputes are commonly brought in New York Supreme Court or in federal court when jurisdictional requirements are met. Within state court, qualifying matters may be assigned to the Commercial Division, which operates under specialized rules tailored to complex business cases (22 NYCRR 202.70).
In New York state court, venue typically lies in a proper county based on party residence or other CPLR-prescribed categories; parties may also agree by contract to a New York forum (CPLR 503; CPLR 501). By contrast, federal venue is governed by federal statute and includes where a substantial part of the events occurred. Consider enforceability of forum- and choice-of-law provisions, Commercial Division eligibility and rules, individual part practices, and potential removal to federal court.
Starting the Case: Summons and Complaint, or Pre-Action Tools
A civil action in New York state court is commenced by filing initiatory papers with the clerk (CPLR 304). Complaints should plead sufficient facts and comply with any heightened requirements (for example, particularity for fraud, CPLR 3016(b)). Defendants should promptly evaluate service, personal jurisdiction, subject-matter jurisdiction, and pleading sufficiency.
Limited pre-action disclosure may be available to identify parties or preserve evidence (CPLR 3102(c)). Contracts may impose pre-litigation notice or ADR steps—follow them to avoid waiver arguments.
Early Defense Options and Responsive Pleadings
Defendants typically answer or move to dismiss. Grounds can include jurisdictional or service defects and pleading deficiencies (CPLR 3211). Assert affirmative defenses in the answer to avoid waiver. Consider counterclaims, cross-claims, and third-party practice to shift or share liability. Where arbitration or forum-selection clauses apply, timely seek to compel arbitration or enforce the clause (CPLR 7503). Plaintiffs should be prepared to amend or oppose dismissal where strategic.
Commercial Division Considerations
The Commercial Division is designed for complex business disputes and features specialized rules on proportional discovery, ESI, and privilege logs, among others (see 22 NYCRR 202.70). Compliance with both the Commercial Division Rules and individual part rules can materially affect case pacing and cost.
Discovery Strategy and E-Discovery
Discovery in New York includes documents and ESI, depositions, interrogatories (where permitted), and requests to admit. The scope is broad but subject to proportionality and protective orders (CPLR 3101; CPLR 3103). Interrogatories are governed by CPLR 3130. In the Commercial Division, expect robust ESI protocols and options for categorical privilege logs (see 22 NYCRR 202.70).
Practice Tips
- Issue a litigation hold immediately and document preservation steps.
- Narrow custodians and date ranges early to control e-discovery costs.
- Use phased discovery and targeted depositions to focus on dispositive issues.
- Negotiate a confidentiality and claw-back order before producing sensitive data.
Motion Practice: Dismissal, Summary Judgment, and Other Applications
Common motions include motions to dismiss (CPLR 3211), discovery motions, protective orders (CPLR 3103), and summary judgment (CPLR 3212). In the Commercial Division, check part rules for pre-motion conference requirements and page limits.
Injunctions and Emergency Relief
When business harm is imminent—for example, misuse of trade secrets, violation of restrictive covenants, or asset dissipation—parties may seek temporary or preliminary injunctive relief. Applicants generally must show likelihood of success, irreparable harm, and favorable equities (CPLR 6301), and courts may require an undertaking (CPLR 6312). Temporary restraining orders may be available in appropriate cases (CPLR 6313).
Settlement, ADR, and Case Management
Most commercial cases settle. Consider mediation (including court-annexed ADR) or private neutrals. Evaluate risk-adjusted damages, insurance, and enforcement mechanics. Settlements commonly address releases, confidentiality, non-disparagement, payment terms, and consent judgments where appropriate. Use court conferences to narrow issues and set realistic schedules.
Trial, Damages, and Remedies
Trials may be before a judge or a jury where available. Plaintiffs should present clear liability theories and damages models supported by admissible evidence and, where needed, expert testimony. Defendants should focus on burden of proof, causation, mitigation, and damages challenges. Remedies may include compensatory damages, equitable relief, declaratory judgments, and, where authorized, fee-shifting.
Appeals and Post-Judgment Practice
After judgment, consider post-trial motions or appeal. Evaluate stays of enforcement and undertakings (CPLR 5519). Judgment creditors may pursue post-judgment disclosure and enforcement against assets consistent with New York law (CPLR 5223).
Checklist: First 14 Days After Being Sued
- Calendar all deadlines from the summons, notices, and local rules.
- Retain litigation counsel and notify key internal stakeholders.
- Implement a litigation hold across email, messaging, and cloud systems.
- Tender to insurers and track coverage positions.
- Gather contracts, key communications, and damages documents.
- Assess jurisdiction, service, arbitration, and forum-selection issues.
- Map early settlement options and potential injunction needs.
FAQ
How fast must I respond to a New York complaint?
Deadlines are short and vary by service method and court. Consult counsel immediately to avoid default and preserve defenses.
Can I move my case to the Commercial Division?
If the case meets eligibility criteria and monetary thresholds, a party may seek assignment or transfer to the Commercial Division, subject to court approval and rules.
When is summary judgment appropriate?
After adequate opportunity for discovery, when there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law.
Will the court enforce my forum-selection or arbitration clause?
Often yes, if the clause is clear and applicable, but timing and waiver issues matter. Raise enforcement early.
Get Help
Questions about a New York business dispute or potential filing? Contact our team to discuss your situation.
Disclaimer
This guide summarizes New York law and selected federal practice applicable to courts sitting in New York as of the last reviewed date. It is general information, not legal advice, and does not create an attorney-client relationship. Laws and rules change, and deadlines are fact-specific—consult qualified counsel about your specific matter.
Sources
- 22 NYCRR Part 202 (Uniform Rules; includes Commercial Division Rule 202.70)
- 22 NYCRR 202.70 (Commercial Division Rules)
- CPLR 304 (Commencement by filing)
- CPLR 503 (Venue); CPLR 501 (Forum selection)
- CPLR 3016(b) (Fraud particularity)
- CPLR 3102(c) (Pre-action disclosure); CPLR 3101 (Scope); CPLR 3103 (Protective orders); CPLR 3130 (Interrogatories)
- CPLR 3211 (Motion to dismiss); CPLR 3212 (Summary judgment)
- CPLR 7503 (Arbitration applications)
- CPLR 6301 (Preliminary injunction); CPLR 6312 (Undertaking); CPLR 6313 (TROs)
- CPLR 5223 (Post-judgment disclosure); CPLR 5519 (Stays on appeal)