NWA Secures Precedent Setting Appellate Victory in New York’s First Department

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On April 23, 2026, on behalf of ConsenSys Mesh founder Joe Lubin and ConsenSys Software Inc. General Counsel Matt Corva, among others, NWA secured a precedent setting appellate victory before New York’s First Department in Anderson v. Lubin, a breach of fiduciary duty and contract action brought by 27 ConsenSys Mesh shareholders that seeks hundreds of millions of dollars in damages. See Anderson v. Lubin, 253 N.Y.S.3d 164 (1st Dep’t 2026).

The appeal concerned when a plaintiff can take a deposition of a defendant under CPLR 3106(a), which provides that a plaintiff cannot take a pre-answer deposition of a defendant absent leave of court and a defendant generally has deposition priority—i.e., it gets to take depositions before the plaintiff. One of the ways a defendant can lose priority is by undue delay. Plaintiffs had sought to take depositions after defendants filed their motions to dismiss but before those motions were ruled upon and they had filed answers.

After staying depositions on NWA’s emergency application in October 2025, the First Department held in a case of first impression that a defendant does not waive priority by waiting to take depositions until after its answer is filed. Moreover, the First Department held that the trial court had to make a specific finding that would justify deviating from priority, which the appellate court found had not occurred.

The First Department further held that defendants are entitled to take a deposition of each of the 27 plaintiffs and are not limited to ten depositions, the presumptive limit in New York’s commercial division.

Tibor Nagy argued the appeal. The NWA team also included Greg Wolfe, Tracy Appleton, Ben Cornfeld, Patrick McGee, and David Moosmann.

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