The Trump Trials: A Civil Action (Part 3)
On October 13, 2022, Alina Habba, an attorney for Donald J. Trump and the Trump Organization, wrote a letter to the Hon. Adam Silvera, the Administrative Justice of the New York State Supreme Court.
The Strategic Letter to the Hon. Adam Silvera
In the letter, it was requested that the defendants’ case, which was being pursued by the New York Attorney General, be transferred to the Commercial Division of the New York State Supreme Court. Habba strategically utilized language from the Attorney General’s complaint to bolster her argument, emphasizing that the Office of the Attorney General (OAG) had already acknowledged that the case fulfilled the jurisdictional standards and subject-matter requirements for assignment to the Commercial Division. The complaint filed by the OAG repeatedly acknowledges the intricate and commercial nature of the case.
Understanding the Commercial Division of the New York State Supreme Court
The Commercial Division serves as a platform for resolving intricate commercial disputes that necessitate specialized expertise in the expansive and intricate realm of commercial law. Given the complex nature of disclosure in commercial cases, which can be lengthy, costly, and further complicated by electronic discovery, the Commercial Division employs robust and efficient case management techniques.
Originally conceived in 1993, the Commercial Division began as an experimental series of four Commercial Parts for the Civil Branch of the New York State Supreme Court. The aim was to assess the feasibility of enhancing the court’s efficiency in handling commercial litigation, improving the quality of judicial proceedings by consolidating such cases in specific Parts. It seemed to work. Shortly thereafter, the Commercial Division was established on a statewide basis, initially opening in Monroe County and New York County.
Assignment to Commercial Division – A Trump Litigation Strategy?
Over the past year, the Office of the Attorney General has insisted that this case remain with the Hon. Arthur Engoron—that it not be transferred to the Commercial Division. The reason? It all comes down to discovery timelines.
Reflecting back on the court transcript we reviewed last week, we know that the defense’s case rests on properly deconstructing the various components of a fraud allegation. Essentially, the defense wants to demonstrate that the fraudulent documents in question were never utilized to secure any form of financing. However, to substantiate this assertion, the defense will need extra time to collect testimony from the many individuals employed by the various financial institutions involved. These individuals are essential witnesses who the defense hopes will provide evidence regarding the nonexistent role the fraudulent documents played in the decision-making processes on the defense’s applications.
There are nine appraisal witnesses, there are 18 bank witnesses, and there are three key insurance witnesses. So that’s 30 right there. That doesn’t count the other 50 people that I’m mentioning, maybe it’s less than 50 because of the Trump folks. But there are people that we know today that we will need to talk to, that in any civil case we would have the ability to talk to. There would not be a constraint put on it, especially one like this.
Mr. Robert, as you know, is the expert — or the professor — the professor, if you will, on the CPLR but he’ll correct me if I’m wrong, but I think that any complex case — that’s designated complex you get 15 months for discovery and you get these other expansive rights.
Decision from the Bench: A Denied Application for Transfer
Shortly after Trump’s attorneys wrote to the Administrative Justice of the New York State Supreme Court, the Hon. Adam Silvera ruled that the case would remain in Engoron’s court. It would not be transferred to the Commercial Division. Engoron agrees with this decision. “Whether or not this case satisfies the requirements of a Commercial Division case, it is not a typical garden variety Commercial Division case,” he explains. “There are no counterclaims which most Commercial Division cases, 80 percent by one estimate, have. It is not two-sided or multi-sided—it is one-sided. Thus it should be resolved in considerably less time than a typical Commercial Division case.”