Blogs

Monthly Archives: February 2014

Posted: February 28, 2014

Complaint Dismissed for Failure to Comply With Contract’s Mandatory Mediation Provisions

On February 20, 2014, Justice Schweitzer of the New York County Commercial Division issued a decision in Key Restoration Corp. v. Union Theological Seminary, 2014 NY Slip Op. 30437(U), dismissing a lawsuit for failure to exhaust pre-litigation ADR obligations. In Key Restoration Corp., the plaintiff brought claims of foreclosure on a mechanic’s lien, breach of… Read more »

Posted: February 27, 2014

Court of Appeals Agrees to Hear Certified Questions Regarding Application of “Separate Entity Rule” to Post-Judgment Enforcement Proceedings

On January 18, 2014, we posted that in Tire Engineering & Distribution, L.L.C., et al. v. Bank of China Ltd., and Motorola Credit Corp. v. Standard Chartered Bank, the Second Circuit certified questions to the New York Court of Appeals concerning the application of the “separate entity rule” to post-judgment enforcement proceedings under CPLR Article 52. On… Read more »

Posted: February 26, 2014

Court of Appeals Rules On Reargument That Liability Insurer’s Breach of Duty To Defend Did Not Preclude The Insurer From Relying On Policy Exclusions To Avoid Duty To Indemnify

On February 18, 2014, the Court of Appeals issued a decision in K2 Investment Group, LLC v. American Guarantee & Liability Ins. Co., 2014 NY Slip Op. 01102, reversing on reargument a decision issued last year regarding the effect of a breach of an insurer’s duty to defend. In its earlier decision, the court held… Read more »

Posted: February 25, 2014

Foreign Default Judgment Enforceable in New York Even if the Foreign Court Did Not Have Personal Jurisdiction over Defendant Where Defendant Consented to Jurisdiction

On February 25, 2014, the Court of Appeals issued a decision in Landauer Ltd. v. Joe Monani Fish Co., Inc., 2014 NY Slip Op. 01263, holding a foreign default judgment enforceable in New York even though the foreign court did not have personal jurisdiction over the defendant, because the defendant had consented to jurisdiction and had actual… Read more »

Posted: February 24, 2014

First Department Rules That Disgorgement May Be Available As An Equitable Remedy For Attorney General Claims Under Martin Act and Executive Law

On February 20, 2014, the First Department issued a decision in People v. Ernst & Young, LLP, 2014 NY Slip Op. 01257, reversing New York County Commercial Division Justice Jeffrey K. Oing’s dismissal of the New York Attorney General’s claims under the Martin Act and New York’s Executive Law for disgorgement of profits earned by… Read more »

Posted: February 23, 2014

Complaint to Reform Contract Dismissed for Failure to Join All Parties to Contract

On February 5, 2014, New York County Commercial Division Justice Bransten issued a decision in Oppenheimerfunds, Inc. v. TD Bank, N.A., 2014 NY Slip Op. 30379(U), granting a motion to dismiss for failure to join necessary parties. Oppenheimerfunds arose from a liquidation relating to an ethanol plant, of which plaintiffs were subordinate bondholders. The plaintiffs alleged… Read more »

Posted: February 22, 2014

Whether Defendants Were “Sellers” Under UCC is Factual Question Precluding Dismissal on Statute of Limitations Grounds

On December 11, 2013, Justice Schmidt of the Kings County Commercial Division issued a decision in Corona Treasures LLC v. Star Home Designs, LLC, 2013 NY Slip Op. 52294(U), denying in part a motion to dismiss because of factual questions regarding whether some defendants were “sellers” for purposes of the UCC. Corona Treasures arose from the breakdown… Read more »

Posted: February 21, 2014

Transcripts and Videos of Arguments in the Court of Appeals for the Week of February 10, 2014, Now Available

Transcripts and videos of arguments in the Court of Appeals for the week of February 10, 2014, are now available on the Court of Appeals website. On February 10, 2014, we noted one case of interest from the oral arguments for the week of February 10, 2014: Docket No. 24: Melcher v. Greenberg Traurig, LLP… Read more »

Posted: February 21, 2014

Unwritten Agreement to Arbitrate Enforceable, But Waived by Defendant’s Assertion of Claims in Lawsuit

On February 19, 2014, the Second Department issued a decision in Willer v. Kleinman, 2014 NY Slip Op. 01164, reversing a trial court order compelling arbitration and instead finding that while the parties were bound by their oral agreement to arbitrate, the defendant had waived its rights under that oral agreement.