Transfer to Commercial Division Denied Because Case Was Related to Pending Non-Commercial Case

On October 19, 2022, Justice Adam Silvera, New York County Administrative Judge, issued a decision in People v. Trump, Index No. 452564/2022, holding that this suit was properly assigned to Justice Arthur F. Engoron because he is presiding over a separate, "related" special proceeding that has not yet been marked as disposed, but further holding that, under section 202.70(e) of the Commercial Division Rules, Justice Engoron could still decide that the new case is not "related" to the prior one and request that the new case be transferred to the Commercial Division, explaining:

Both sets of defendants' attorney letter applications were premature in that the Complaint had yet to be served at the time the herein requests were made. To the extent that Counsel and Clifford S. Robert Esq. filed Notices of Appearance on behalf of their clients (Doc Nos. 28 and 30 respectively), on September 28, 2022, the General Clerk's Office was able to assign this action to Justice Engoron as is the procedure of this Court that matters identified as "related" on the RJI be heard before the same Justice.

By letter dated September 29, 2022 (Doc No. 33), plaintiff objected to any transfer of this matter from the IAS part to a Commercial Division Justice and reiterated that the Special Proceeding is "related" to tile instant action in that "the Special Proceeding included a '[s]ubstantial record developed in [the] underlying enforcement action,"' and Judge Engoron "has [a] substantial degree of familiarity with the relevant information and matters at issue" (see RJI). Notably, plaintiff asserts that "this action is seeking to prove the very same facts under investigation in the Special Proceeding."

Consistent with court procedure, the General Clerk's Office appropriately assigned this action to Judge Engoron, on grounds that plaintiff identified it as "related" to the Special Proceeding. In the event Judge Engoron deems this action un-related to the Special Proceeding, pursuant to Section 202.70(e) of the Rules of the Commercial Division of the Supreme Court, Judge Engoron may make a request to transfer this action to the Commercial Division. Contrary to Counsel's assertion, the Special Proceeding is still pending before Judge Engoron and has not been marked disposed. Incidentally, on October 7, 2022, plaintiff filed an affidavit of service attendant to the Complaint (Doc No. 36). Once service of the Complaint was effectuated, this Court deemed it applicable to address the letter requests dated September 28, 2022 (see 22 NYCRR 202.70[e]).

Accordingly, the Letter Application seeking an Administrative Order transferring this matter from the IAS part to the Commercial Division is denied, and the action shall remain before the Honorable Arthur F. Engoron, a general Individual Assignment Part of the Court as a related action for judicial economy and expediency.

When a plaintiff files a case and marks it as "related" to a prior pending case that has not yet been disposed, the clerk will automatically assign the new case to the same judge handling the pending related case. But whether a case should go to a non-commercial judge handling a prior-filed, related case or to a new judge in the Commercial Division can sometimes be the subject of litigation, as this case shows. Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions concerning the Commercial Division assignment system.