Monthly Archives: July 2014

Posted: July 31, 2014

Takings Claim Not Ripe Until Process For Obtaining Compensation Complete, Even If Taking Already Has Occurred

On July 16, 2014, the Second Circuit issued a decision in Kurtz v. Verizon New York, Inc., 13-3900-CV, affirming a decision by the EDNY that the plaintiffs had not stated a takings claim because, even though the takings already had occurred, they had not yet exhausted all of their state remedies to obtain compensation for the taking…. Read more »

Posted: July 31, 2014

Motion for Stay in Favor of Arbitration Denied When Complete Identity of Parties Lacking

On July 10, 2014, Justice Schweitzer of the New York County Commercial Division issued a decision in Interventure 77 Hudson LLC v. Falcon Real Estate Investment Co., LP, 2014 NY Slip Op. 31878(U), denying motions to compel arbitration. In Interventure 77 Hudson LLC, three defendants moved for a stay in favor of arbitration “on the… Read more »

Posted: July 30, 2014

When no Present Claim and a Subsequent Dispute Would be New and Distinct, Party not Necessary Under CPLR 1001

On July 15, 2014, Justice Schweitzer of the New York County Commercial Division issued a decision in 37 E. 50th St. Corp. v. Restaurant Group Management Services, L.L.C., 2014 NY Slip Op. 31876(U), granting a defendant’s motion to dismiss on the grounds that it was not a necessary party under CPLR 1001(a). In 37 E…. Read more »

Posted: July 29, 2014

Analyses Performed by Litigation Counsel Not Work Product When Done to Meet Contractual Obligation

On July 16, 2014, Justice Schweitzer of the New York County Commercial Division issued a decision in Home Equity Mortgage Trust Series 2006-1 v. DLJ Mortgage Capital, Inc., 2014 NY Slip Op. 31923(U), granting a motion to compel the production of analyses performed by litigation counsel. In Home Equity Mortgage Trust Series 2006-1, the plaintiff… Read more »

Posted: July 28, 2014

Court Refuses to Order Production of ESI, Finding Previous Productions Sufficient

On July 17, 2014, Justice Kornreich of the New York County Commercial Division issued a decision in MBIA Ins. Corp. v. Credit Suisse Sec. (USA) LLC, 2014 NY Slip Op. 31871(U), denying the plaintiff’s motion to compel production of electronically stored information (ESI) that it claimed the defendant had improperly withheld as “non-responsive.” The court… Read more »

Posted: July 27, 2014

Class Not Certified When Plaintiff’s Evidence of Class Size is Insufficient

On June 24, 2014, Justice Platkin of the Albany County Commercial Division issued an opinion in Picard v. Bigsbee Enterprises, Inc., 2014 NY Slip Op. 51113(U), denying a motion for class certification for failure to establish numerosity. In Picard, the plaintiff brought a class action “premised on alleged violations of New York Labor Law §… Read more »

Posted: July 26, 2014

Commercial Division Rules Amended to Increase Monetary Thresholds and Encourage Early Exchange of Documents Facilitating Settlement

The Chief Administrative Judge has signed orders (1) raising most of the monetary thresholds for assignment of cases to the Commercial Division and (2) amending Rule 8 to provide for the voluntary exchange of documents that would facilitate early settlement. The amended NYCRR § 202.70(a), which goes into effect on September 2, 2014, changes the monetary… Read more »

Posted: July 24, 2014

BCL § 1112 is Controlling for Determining Venue In an Action Seeking Judicial Dissolution

On July 21, 2014, Justice Demarest of the Kings County Commercial Division issued a decision in Sicignano v. Hymowitz, 2014 NY Slip Op. 51100(U), refusing to change venue in an action seeking judicial dissolution. In Sicignano, the defendants in an action seeking “judicial dissolution . . . pursuant to Business Corporation Law § 1104-a” and asserting… Read more »

Posted: July 23, 2014

Commercial Division Applies Delaware Demand Futility Pleading Rules

On July 3, 2014, Justice Schweitzer of the New York County Commercial Division issued a decision in David Shaev Profit Sharing Account v. Riggio, 2014 NY Slip Op. 31776(U), dismissing a derivative action for failure adequately to plead demand futility. In David Shaev Profit Sharing Account, the plaintiff filed a derivative action against the individual directors of… Read more »