Blogs

Monthly Archives: August 2014

Posted: August 31, 2014

Contract That Has Consideration When Entered Into Does Not Fail for Lack of Consideration if Circumstances Change

On August 20, 2014, Justice Ramos of the New York County Commercial Division issued a decision in Trilegiant Corp. v. Orbitz, LLC, 2014 NY Slip Op. 24230, declining to dismiss a breach of contract claim for lack of consideration. In Trilegiant Corp., the plaintiff in a dispute over a services contract moved for summary judgment… Read more »

Posted: August 30, 2014

Sophisticated Party Cannot Use Lack of Time as Excuse for Failure to Exercise Due Diligence

On August 6, 2014, Justice Sherwood of the New York County Commercial Division issued a decision in Remediation Capital Funding LLC v. Noto, 2014 NY Slip Op. 32157(U), dismissing a fraud claim for failure to show due diligence. In Remediation Capital Funding , the plaintiffs asserted claims of fraud and fraudulent conveyance in connection with a… Read more »

Posted: August 29, 2014

Defamation Claim Dismissed Where Statements Were Protected By “Fair Reporting” Privilege

On August 28, 2014, Justice Kornreich of the New York County Commercial Division issued a decision in GEM Holdco, LLC v. Changing World Technologies, L.P., Index No. 650941/2013, ruling that a defamation claim arising from a press release explaining a party’s defenses and anticipated counterclaims in a pending lawsuit was barred by New York’s absolute… Read more »

Posted: August 28, 2014

Acquirer Not Liable for Tortious Interference With Contract of Company it Acquired

On August 4, 2014, Justice Schweitzer of the New York County Commercial Division issued a decision in American Water Enterprises Inc. v. Tectura Corp., 2014 NY Slip Op. 32182(U), dismissing a claim for tortious interference with contract. In American Water Enterprises, the plaintiff asserted a claim for tortious interference with contract against a defendant that was in… Read more »

Posted: August 27, 2014

Italian Forum Selection Clause Contained In Order Confirmation Form Upheld

In Allied Dynamics Corp. v. Kennametal, Inc., 12-CV-5904 (JFB)(AKT) (E.D.N.Y. Aug. 5, 2014), Judge Joseph F. Bianco granted defendants’ motion to dismiss plaintiff’s claims for breach of contract and tort based on improper venue. Plaintiff, a New York manufacturer of turbine parts, had ordered blade parts from defendant, an Italian company, for gas turbine assembly…. Read more »

Posted: August 27, 2014

Defendant Can Be Held Liable Statements in Preliminary Offering Materials it Later Disclaimed

On August 5, 2014, Justice Schweitzer of the New York County Commercial Division issued a decision in NRAM PLC v. Societe Generale Corp., 2014 NY Slip Op. 32155(U), holding that the plaintiff had stated a claim for fraud based on statements the defendant later had disclaimed.  In NRAM PLC, the plaintiff brought “causes of action… Read more »

Posted: August 26, 2014

Pro Se Plaintiff Should Have Been Allowed To Amend Complaint

On August 19, 2014, the Second Circuit issued a decision in Garay v. Novartis Pharmaceuticals Corp., 13-3762-CV, reversing a denial by the EDNY of leave to amend a complaint that had been dismissed on the pleadings. In Garay, the EDNY dismissed with prejudice a pro se plaintiff’s age discrimination and retaliation claims. The Second Circuit affirmed the dismissal,… Read more »

Posted: August 26, 2014

Court Grants Summary Judgment Even Though Defendants Sought More Discovery

On August 15, 2014, Justice Whelan of the Suffolk County Commercial Division issued a decision in Flax v. Shirian, 2014 NY Slip Op. 51229(U), rejecting a request to defer decision on a motion for summary judgment pending further discovery. In Flax, the plaintiffs sought partial summary judgment on their claims in a business divorce action…. Read more »

Posted: August 25, 2014

New York Choice of Law Clause Not Sufficient To Invoke New York Rule Against Punitive Damages Awards In Arbitration

On August 14, 2014, the First Department issued a decision in In re Flintlock Construction Services, LLC v. Weiss, NY Slip Op 05818, ruling (by a 3-2 vote) that a choice of law provision providing that the parties’ agreement was to be “construed and enforced” in accordance with the law of New York was not… Read more »

Posted: August 24, 2014

Court Refuses to Vacate Default Judgment Where Defendant Provides no Reasonable Excuse for his Failure to Answer

On August 5, 2014, Justice Whelan of the Suffolk County Commercial Division issued a decision in Wells Fargo Bank, N.A. v. Pasciuta, 2014 NY Slip Op. 32113(U), granting a default judgment. In Wells Fargo Bank, the plaintiff moved for default judgment against the defendant and the defendant cross-moved to vacate the default and answer. Notwithstanding… Read more »