April 22, 2025
By Laura Trachtman
A Notice to Admit is, IMO, a largely overlooked litigation device that can be very useful. It has some particular uses that can lighten an attorney’s load and ease the general prosecution or defense of a client’s case.
First: what is a Notice to Admit? A Notice to Admit, which is authorized by CPLR § 3123, is a written request for the other side to admit something. It is designed to put to rest smaller factual issues, such as questions relating to dates, or the genuineness of documents, including photographs.
So why am I talking about it?
We all know that discovery takes up the most time, effort and expense of any litigation, excepting trial. Due to the 2021 updates to the CPLR and the NYCRR, a party may now only take 7 hours to depose another party or another witness, absent good cause shown. By serving a Notice to Admit upon the other party, you can supplement the Interrogatories (which are now also limited to 25 per party) and Requests for Discovery and Inspection without taking valuable time in a deposition that could be spent on more important issues. This is particularly the case if a party has served documents with conflicting information. For example, if the other side produced documents memorializing different dates for a contract, for example, or the date of hire, the Notice to Admit can be submitted to clear up the misunderstanding.
The true beauty of the Notice to Admit, however, is that unlike other discovery devices, if opposing counsel doesn’t timely respond, all topics contained within the Notice to Admit are automatically deemed admitted. So, if opposing counsel doesn’t seem to be as diligent as she should be, this device can be incredibly useful. Also, it can be served any time up until 20 days before trial, which is great because if there’s something you forgot to ask about during discovery and trial is coming up, you can still resolve the issue.
If opposing counsel does respond and denies, for example, the genuineness of a document, and the document is later determined to be genuine, the statute authorizes a motion for the expenses incurred, including attorney’s fees, in resolving this dispute. Furthermore, this remedy is available regardless of whether your client prevails on the merits.
Naturally, it does have its limits. You cannot use a Notice to Admit to get to the issues at the heart of a dispute: If you serve a Notice to Admit stating “Plaintiff admits that it breached its contract with Defendant” and Plaintiff’s counsel fails to respond within the statutory time period, the Court won’t allow the entire case to be resolved. The Notice to Admit can only be used for the matter in which it was served; it won’t serve as the basis for a res judicata motion down the line.
In sum, the Notice to Admit is a very handy device that can be used at basically any point in a litigation before trial, and that has potentially very high benefits at a very low cost.
April 17, 2025
By Emily Poler
My approach to this blog has been to keep it fairly light by writing about celebrity defamation cases and tech-related copyright infringement with an occasional dip into my experiences growing a business. However, right now, there are way more important and disastrous things going on in the United States. For me, as a lawyer, I am particularly concerned about the rule of law, lawyers’ role in protecting the rule of law, and President Donald Trump’s attacks on the rule of law.
If you’ve been under a rock lately and haven’t heard about this, lucky you! Can I join you?
To bring those of you not following along up to speed and to share my pain, the Trump administration has taken aim at the rule of law in a whole bunch of different ways. Among other things, it is ignoring clear court orders, and trying to punish law firms that represent clients whom Trump doesn’t like or employ lawyers who, at one point, represented clients that Trump doesn’t like. In some cases, Trump has issued executive orders calling for the termination of government contracts with these firms and with companies represented by these firms, while also attempting to bar their attorneys from even entering federal buildings — a big problem if you’re a lawyer representing clients in federal courts.
Three firms — Perkins Coie, WilmerHale and Jenner & Block — have fought back and obtained an order blocking Trump’s executive order against them. I have to applaud the work of Williams & Connolly, the firm that has represented Perkins Coie, for some really excellent advocacy. If you’re at all curious about what really stellar legal briefs look like, I’d recommend checking out the materials they’ve submitted on behalf of their law firm client because they’re really well written. As they wrote, “The [executive] [o]rder is an affront to the Constitution and our adversarial system of justice. Its plain purpose is to bully those who advocate points of view that the President perceives as adverse to the views of his Administration, whether those views are presented on behalf of paying or pro bono clients.”
The judges hearing these cases have, thus far, uniformly ruled that Trump’s executive orders are blatantly unconstitutional because, among other things, they punish lawyers and/or law firms for their speech which, you know, is in direct violation of the First Amendment. (There are other huge issues as well, but I’m trying not to get too in the weeds here.)
Depressingly, several firms, including Skadden, Arps, Slate, Meagher & Flom and Paul Weiss, have chosen not to fight back against Trump’s executive orders and have, in fact, caved to Trump’s demands. Indeed, these firms have, among other things, agreed to donate their attorneys’ legal services to Trump’s pet causes. In the case of Skadden, which appears to have signed on without Trump even threatening them, this agreement requires Skadden to provide $100 million in pro bono services to the Trump administration and supposedly is in effect both while Trump is in office and beyond (at least this is what Trump says, so who knows how literally true it is). If you want to see something horrible, go to their website to see how they now proudly proclaim their role as Trump’s legal attack dogs.
Let me just start by saying, even though of course it should go WITHOUT saying, that none of this should be happening, especially in the United States where we have a Constitution that is clearly written to prevent such dictatorial actions. Moreover, while I’m furious and disgusted at the firms that caved to Trump, this should not be read as blaming the victim; they’re obviously terrified of having their businesses crippled. I think we all know where the real blame lies.
With that said, what are these firms thinking? How can they agree to these types of “deals” that are blatantly against the law, instead of standing up and fighting for the very laws that their attorneys promised to uphold? Moreover, how exactly does the leadership of these firms think they’re going to make money if laws don’t matter anymore? What would even be the point of having lawyers?
Does this sound extreme? Ok, maybe. Nonetheless, as has been VERY evident these past few weeks, constraints on unpredictable behavior and government corruption are important for a flourishing economy, because it is only in a healthy economy that businesses and individuals are able to do the kind of deals for which they hire attorneys like those at Skadden Arps and Paul Weiss. If everything goes to hell, there won’t be any work for them anyway.
April 8, 2025
By Laura Trachtman
The first thing that my dad made me do after I was admitted to practice was to register as a notary public with the State. Why? Because in order to file sworn documents with the Court, lo those many years ago, said document needed to be witnessed by a notary public. The exception, according to the older version of CPLR § 2106, was for lawyers, doctors, osteopaths, or dentists, all of whom were allowed to affirm, but when our clients needed a document submitted, it had to be notarized. Hence, my father’s insistence.
The answer to the obvious question of “what is a notary public?” will be abbreviated, because the history goes back to Cicero, and nobody wants that. Suffice to say that the notary public basically attests that you are who you say you are and that you have sworn under penalty of perjury that what you are saying is true. In actuality, the notary public would just check your identification to make sure you are who you say you are, and leave the perjurers to be relegated to the Eighth Circle of Hell, malebolge, which is reserved for those who commit crimes of fraud. Oh Dante, you never get old.
Perhaps realizing that trying to find a notary public in today’s day and age is like trying to find someone who uses a typewriter (they exist, but are challenging to locate), the Legislature amended CPLR § 2106 to allow anyone to affirm the truth of a document, not just the aforementioned professionals. Aside from making life a little bit easier for all involved, this amendment was also designed to bring New York Practice more in line with federal practice – a recent trend which shall pop up every so often in these blog posts.
It’s important to note that just because anyone can now make an affirmation, that privilege must not be taken for granted. For example, in Zhou v. Cent. Radiology, PC, 84 Misc. 3d 410, 418–19, 220 N.Y.S.3d 580, 586–87 (N.Y. Sup. Ct. 2024) (emphasis supplied), the litigants were not as meticulous as they should have been. The Honorable Tracy Catapano-Fox, addressed in some depth the seriousness of ensuring conformity with the language of CPLR § 2106:
It is first noted that plaintiff’s expert affirmations failed to comply with the requirements of CPLR § 2106. Plaintiff submitted documents titled “expert affidavit” from Dr. Englander and Dr. Papish, both physicians who were not licensed to practice medicine in New York. While the newly amended statute permits parties to submit affirmations rather than notarized affidavits, plaintiff’s out-of-state experts failed to affirm by the specific language of the statute. Instead, both “affidavits” merely state that the witness hereby affirms under the penalties of perjury, which is not in substantial compliance with CPLR § 2106. (See generally Nelson v. Lighter, 179 A.D.3d 933, 116 N.Y.S.3d 360 [2d Dept. 2020].) This Court recognizes that defendants did not oppose plaintiff’s motion on this ground. However, it is incumbent on the Court to uphold the integrity of the laws of New York, and ensure compliance by all parties. Further, the amendment to the statute was not made in an effort to lessen the seriousness of the affirmation and the consequences of making false statements, but instead was meant to reduce the burden of seeking a notary public to obtain a properly sworn affidavit. In reviewing the documents submitted, it is clear that they lack compliance with CPLR § 2106 in both form and substance. This error is not harmless or ministerial, as the brief language affirmed to by Dr. Englander and Dr. Papish did not demonstrate their acknowledgement of the import and seriousness of their statements made in the document as required by statute, and therefore cannot be considered by the Court. (CPLR § 2106 Advisory Committee Notes [“While attorney always have a professional duty to state the truth in papers, the affirmation under the proposed rule gives attorneys adequate warning of the possibility of prosecution for perjury for a false statement”].)
However, in Gao v. Coconut Beach/Hawaii, LLC, 83 Misc. 3d 1223(A), 212 N.Y.S.3d 815, at *3 (N.Y. Sup. Ct. 2024) (emphasis supplied), the Honorable Richard Reed, J.H.O., specifically wrote in his Decision and Order granting leave to enter a default judgment dated June 26, 2024, that “[t]he court notes that plaintiff submits with this motion an affirmation of plaintiff dated May 23, 2024, verifying his complaint. CPLR 2106, as amended on January 1, 2024, permits affirmations to be made by “any person” as long as it is stated “to be true under the penalties of perjury.” Because the affirmation is in conformity with the amended CPLR 2106, the complaint constitutes admissible proof for the purposes of this motion.” This is very straightforward: Because the affirmation is in the correct form as set forth in the statute, the Court accepted it.
This is a sobering morality tale of what happens to attorneys who do not bother to read the language of the statutes they rely upon. In today’s age of copy and paste, there is literally no excuse not to take the proper language straight from the statute itself. And in today’s age of “false news” and “deepfake,” the Courts are wise to take potentially perjurious submissions extremely seriously.
In sum, the amendments to CPLR § 2106 making it easier to submit documents from everyone are most welcome, but it appears as though the courts are on the lookout for those who submit papers failing to comply with the amendments. For that reason, it may be wise to have the text of CPLR § 2106 bookmarked until you’re able to memorize it.
Special thank-you to Professor Michael Hutter of Albany Law School and his wonderful CLE, 2025 CPLR Update, held through the auspices of the New York State Academy of Trial Lawyers, which I find to be a wonderful organization. Prof. Hutter drew special attention to this statute in that program, inspiring me to write this blog piece.
April 1, 2025
By Emily Poler
Not infrequently, I talk angry clients fired up to file defamation lawsuits out of going to court. I have a lot of reasons, but chief among them is that filing a defamation lawsuit, especially when the client is a public figure, will bring more attention to the potentially defamatory statements. Way more.
Why? For a statement to be defamatory, it has to be, among other things, false. It’s really hard (if not impossible) to prove something is false without repeatedly restating the defamatory statement. A lawsuit also allows the defendant to rebut claims that a statement is false by coming forward with proof that the statement is true, which also means constantly repeating the defamatory statement. In litigation, all this is likely to be a matter of public record, so if the plaintiff is a public figure, the defamatory statement will be repeated in the media a LOT. Which is usually the opposite of what the celebrity plaintiff wants.
All of which brings me to Drake’s defamation lawsuit against his record label, Universal Music Group (UMG), which seems like a prime example of a case where the plaintiff, a very famous Canadian rapper (you probably know that, but still), might end up doing himself more harm than good.
This case grew out of the highly public beef last year between Kendrick Lamar (an equally famous, Pulitzer Prize-winning American rapper) and Drake; for those of you who do not live with a teenager who was very eager to fill me in on the increasingly nasty verbal attacks the two artists slung at each other, here’s a brief run down.
(And yes, I do feel somewhat ridiculous to write the following in a semi-academic tone, but this is a legal blog, so here we are.)
Kendrick Lamar (“Kendrick”) and Aubrey Drake Graham (“Drake”) are both successful musicians. During 2024 each released several diss tracks, or rap songs with insults directed at the other. In a track called Taylor Made Freestyle, Drake (using an AI-generated voice meant to sound like the late rapper Tupac Shakur, but that’s a story for another day) challenged Kendrick to “talk about [Drake] likin’ young girls.”
After additional tracks back and forth in which Drake accused Kendrick of cheating on and physically abusing his fiancée, Kendrick responded with “Not Like Us,” which became one of the biggest songs of the year. To the millions of fans who followed the beef, Kendrick had thoroughly eviscerated and humiliated Drake.
In “Not Like Us” Kendrick raps, among other things “Drake, I hear you like ‘em young,” “tryna strike a chord and it’s probably A minor,” “Certified lover boy? Certified pedophile,” and “your homeboy needs subpoena, that predator move in flocks. That name gotta be registered and placed on neighborhood watch.”
Drake was none too pleased about this and, in early January, he filed a lawsuit claiming that “Not Like Us” and an accompanying music video and other materials are defamatory because he is not a pedophile, has not had sex with a minor and, in fact, has never been charged with “any criminal acts whatsoever.”
[NB: While Drake has never been charged with any crime, there are a lot of rumors about him having friendships with younger, female celebrities — some of whom were under 18 when the relationships started].
Notably, Drake brought his case against UMG, his own record label, which also owns the label that releases Kendrick’s music. Also notably, Drake did not sue Kendrick himself, presumably out of concern that he could subsequently face a counterclaim from Kendrick over Drake’s accusations that Kendrick cheated on and abused his fiancée.
Which brings us to UMG’s motion to dismiss, which it filed on March 17, 2025, and is based on two key arguments.
First, UMG argues that Kendrick’s statements in “Not Like Us” constitute “nonactionable opinion” because an average person hearing the accusations in a rap wouldn’t view them as literally true or false but would consider them hyperbolic statements made in the course of a heated exchange. In determining whether a statement can serve as the basis for a claim of defamation, courts have to look at the context in which they were made, and courts regularly find that statements such as Kendrick’s are not actionable.
Answering this particular argument will require the court to dive deeply into what was said in “Not Like Us,” along with the full context of the Kendrick-Drake beef — more deeply than is usual at the motion to dismiss stage. (Generally, on a motion to dismiss, courts only consider what’s actually in the complaint and the complaint here focuses on the specific statements without focusing on the larger context.) A deeper dive is not uncommon in defamation cases where there are serious First Amendment concerns that might chill free speech.
UMG next argues that Drake has not alleged that UMG acted with “actual malice.” In the context of a defamation case against a public figure, this means that, in his complaint, Drake has to point to evidence that UMG knew or believed at the time it released “Not Like Us” that the statements about Drake being a pedophile were false. This standard isn’t met where the party publishing the statement (UMG) believes that the statements are outrageous and/or not intended to convey facts. I think it’s likely that UMG’s release of “Not Like Us” is going to fall into this basket. Failing to dismiss the claim could lead to a world in which record labels would have to vet every diss track (plus a lot of other songs) to make sure they’re not defamatory — not a great (or realistic) outcome.
In any event, I’m curious to see how Drake responds to the motion to dismiss. My guess is that his lawyers will argue that the court shouldn’t look at all of the context around the supposedly defamatory lines in “Not Like Us” because it’s inappropriate at this stage of the litigation, and thus should reject UMG’s argument.
Stepping back from the legal points for a moment, what is Drake hoping to get from this lawsuit? His image took a pretty big hit as a result of the beef, but with the public’s mosquito-like attention span, by the time he filed the world had moved onto other things and in February Drake himself had a Billboard number one collaborative album with fellow Canadian superstar PartyNextDoor. Why keep his embarrassment at the hands of Kendrick in the public eye?
Whatever Drake is thinking, if I had to guess, this case is going to be dismissed or partially dismissed.
March 25, 2025
By Laura Trachtman
One of the questions I get most often from panicked clients is this: “I got served with a subpoena. What do I do??” Usually, it’s a tempest in a teapot, but sometimes it’s not. Let’s break it down a little bit.
There are many, many different types of subpoenas: subpoenas in criminal matters, in civil matters, in administrative matters. There are also different types of subpoenas: subpoenas asking the recipient to produce documents, and subpoenas asking the recipient to testify. For brevity’s sake, I’m going to address the singular most common subpoena to cross my desk: the subpoena duces tecum in a civil matter in the New York State courts.
I was about to reach for my father’s copy of Black’s Law Dictionary to get the actual Latin definition of the term, but no one wants that. [If you want that, subpoena is Latin for under penalty, and subpoena duces tecum is Latin for under penalty you shall bring with you.] A subpoena duces tecum is a subpoena asking the recipient to produce documents or evidence that is in their custody (i.e., they have them at their home or office) or control (they don’t possess the documents but can get hold of the documents). The form of the subpoena can shift a wee bit, but that’s what the subpoenaing party wants from the person being subpoenaed.
Who is the subpoenaing party? I’m glad you asked. Chances are good that it’s an attorney representing a client who is currently a party to a matter in the state courts. If it is, that’s the best option for the person being subpoenaed. Attorneys are allowed to issue subpoenas on behalf of their clients during a case. Here’s the catch: Attorneys do not have enforcement power, so that subpoena is a paper tiger.
Most serious is when the subpoena is issued by a judge. The courts naturally imbue their justices with enforcement power, but enforcing a So-Ordered subpoena, which is a subpoena that a judge has reviewed and signed and thus carries the weight of the court behind it, can be a real pain.
Finally, some jurisdictions allow a clerk of the court to issue a subpoena, and New York Supreme Court is one of those, but like the subpoenas issued by an attorney, this is without teeth. If you really want to be able to enforce your subpoena, you must convince a judge to sign it.
I’ve discussed enforcement of the subpoena, but what does “enforcement power” really mean? Broadly speaking, it means that if the judge tells you to do something (or don’t do something), you’d better obey, or else the judge can punish you by, among other things, holding you in contempt of court. (I was once banned from a courtroom for life, but that’s a story for another time.) The penalties associated with being held in contempt of court include a fine and a term of imprisonment. Best not to make that judge angry by disobeying the judge’s order.
In sum: what you do when you’re served with a subpoena really depends on who has issued the subpoena, and whether disobeying the subpoena means you’re going to get hauled into Court to face an irate judge, or whether absolutely nothing will happen to you.
