Monthly Archives: September 2015

Posted: September 30, 2015

Court of Appeals Arguments of Interest for the Week of October 12, 2015

Upcoming oral arguments in the Court of Appeals the week of October 12, 2015, that may be of interest to commercial litigators include: Cal. No. 153: Pegasus Aviation I, Inc. v. Varig Logistica S.A. (to be argued Tuesday, October 13, 2015) (“Evidence–Loss or destruction of evidence–Relevance of spoliated documents–Whether MP defendants exercised sufficient control over… Read more »

Posted: September 29, 2015

Service That Identified Rent Overcharges Not Providing Real Estate Brokerage Services

On September 29, 2015, the First Department issued a decision in Commercial Tenant Services, Inc. v. Northern Leasing Systems, Inc., 2015 NY Slip Op. 06984, holding that a contract relating to “negotiating escalation adjustments or settling disagreements with a landlord about overcharges” was not void for “violat[ing] Real Property Law §§ 440(1) and 440-a,” explaining:… Read more »

Posted: September 28, 2015

Opportunity to Comment on Proposed Changes to Court Rules

The Office of Court Administration has asked for public comment on two proposed new rules. One proposal is a report and recommendations of the Chief Judge’s Commission on Statewide Attorney Discipline, recommending the establishment of uniform state-wide procedures for attorney discipline. The other proposal is a proposed amendment of 22 NYCRR Part 522 of the… Read more »

Posted: September 27, 2015

Claims Against Union and its Officers Dismissed Under Martin Rule

On September 23, 2015, the Second Department issued a decision in Cablevision Systems Corp. v. Communications Workers of America District 1, 2015 NY Slip Op. 06874, affirming the dismissal of claims against a labor union and its officers. In Cablevision Systems, the plaintiff sued, among others, a labor union and several of its officers for… Posted in Commercial, Injunctions Attachments and Other Preliminary Remedies

Posted: September 26, 2015

Limitations Period for Unjust Enrichment as Alternative to Tort is Same As for the Tort

On September 18, 2015, Justice Kornreich of the New York County Commercial Division issued a decision in Vandashield LTD v. Isaccson, 2015 NY Slip Op. 31782(U), analyzing the limitations period for claims of unjust enrichment. In Vandashield, the defendants moved to dismiss the complaint on various grounds, including that the plaintiffs’ unjust enrichment claims were… Read more »

Posted: September 25, 2015

Adverse Inference Sanction Upheld Where No Reasonable Explanation for Documents’ Nonproduction

On September 23, 2015, the Second Department issued a decision in Schiano v. Mijul, Inc., 2015 NY Slip Op. 06910, affirming an adverse inference discovery sanction because “the documents in question exist or existed and were under [the sanctioned party’s] control, and . . . there was no reasonable explanation for their nonproduction.” (Internal quotations… Read more »

Posted: September 24, 2015

Fraudulent Inducement Claim Based on Defendant’s Intention Not to Perform When Contract Made

On September 23, 2015, the Second Department issued a decision in Vision Accomplished, Inc. v. Lowe Properties, LLC, 2015 NY Slip Op. 06914, upholding a fraud claim, explaining: The elements of a cause of action to recover damages for fraud require a material misrepresentation of a fact, knowledge of its falsity, an intent to induce… Read more »

Posted: September 23, 2015

Claims Against Con Edison Dismissed Under Filed Rate Doctrine

On September 21, 2015, Justice Demarest of the Kings County Commercial Division issued a decision in Mont York Associates, LP v. Consolidated Edison Co. of N.Y., 2015 NY Slip Op. 51350(U), dismissing claims under the filed rate doctrine. In Mont York Associates, the plaintiff brought claims against Con Edison “seek[ing] damages for breach of contract… Read more »

Posted: September 22, 2015

Claim Untimely Despite Being Brought Within Six Years of Accrual As Defined by Contract

On September 18, 2015, Justice Kornreich of the New York County Commercial Division issued a decision in Bank of N.Y. Mellon v. WMC Mortgage, LLC, 2015 NY Slip Op. 25318, dismissing a breach of contract claim as time-barred even though it was brought within six years of the time it accrued according to the parties’… Read more »

Posted: September 21, 2015

Transcripts and Videos of Arguments in the Court of Appeals for the Week of September 7, 2015, Now Available

On September 2, 2015, we noted three cases of interest from the oral arguments for the week of September 7, 2015: Cal. No. 122: Nomura Asset Capital Corp. v. Cadwalader, Wickersham & Taft, LLP (argued Tuesday, September 8, 2015) (“Action against law firm alleging failure to provide appropriate legal advice and the rendering of a… Read more »