Blogs

Monthly Archives: May 2018

Posted: May 25, 2018

It Doesn’t Actually Take Forever. It Just Feels Like It.

On May 22, 2018, Judge Victor Marrero of the SDNY issued an order winding up In Re: Municipal Derivatives Antitrust Litigation, 1:08-cv-02516-VM-GWG). This multi-district litigation was a 2008 case; the cases that were combined in the multi-district litigation likely were from even earlier. The reasons complex litigations such as these take so long are many… Read more »

Posted: May 25, 2018

Breach of Contract Action Barred by Contract’s Mandatory Mediation Provision

On May 24, 2018, the First Department issued a decision in Korangy v. Malone, 2018 NY Slip Op. 03767, holding that a breach of contract claim was barred by a contract’s mandatory mediation provision, explaining: The motion court correctly dismissed the breach of contract cause of action, as under the plain language of the operating… Read more »

Posted: May 24, 2018

Order Vacating Default Judgment Reversed and Remanded for Traverse Hearing on Service

On May 17, 2018, the First Department issued a decision in Noah Bank v. Hudson Produce, Inc., 2018 NY Slip Op. 03630, reversing an order that vacated a default judgment and remanding for a traverse hearing, explaining: Since defendant is a corporation, CPLR 311(a)(1) governs the method of service in this action. It is undisputed… Read more »

Posted: May 23, 2018

Summary Judgment Inappropriate Where Conflicting Inferences Can be Drawn from Evidence and Issues of Credibility Exist

On May 16, 2018, the Second Department issued a decision in UB Distributors, LLC v. S.K.I. Wholesale Beer Corp., 2018 NY Slip Op. 03559, holding that summary judgment is inappropriate where conflicting inferences can be drawn from the evidence and issues of credibility exist, explaining: Here, the defendants failed to establish their prima facie entitlement… Read more »

Posted: May 22, 2018

Court Erred in Considering Extrinsic Evidence in Interpreting an Unambiguous Agreement

On May 16, 2018, the Second Department issued a decision in World Ambulette Transportation, Inc. v. Lee, 2018 NY Slip Op. 03560, holding that the trial court erred in considering extrinsic evidence in interpreting an unambiguous agreement, explaining: [W]e disagree with the Supreme Court to the extent that it determined that the parties’ written agreement… Read more »

Posted: May 21, 2018

Court Of Appeals Rejects “Avoided Costs” As Proper Measure Of Damages For Misappropriation Of Trade Secrets

On May 3, 2018, the Court of Appeals issued an opinion, E.J. Brooks Co. v Cambridge Sec. Seals, 2018 NY Slip Op 03171, answering a question certified by the Second Circuit, namely whether a plaintiff can recover its competitor’s avoided costs as damages in a trade secrets action, whether as misappropriation, unfair competition, or unjust… Read more »

Posted: May 20, 2018

Derivative Action Dismissed for Failure to Plead Demand or Demand Futility

On May 9, 2018, Justice Sherwood of the New York County Commercial Division issued a decision in Glaubach v. PricewaterhouseCoopers, LLP, 2018 NY Slip Op. 30875(U), dismissing a derivative action for failure to plead demand or demand futility, explaining: Under Delaware law, and Delaware Chancery Court Rule 23.1, to have standing to pursue a derivative… Read more »

Posted: May 19, 2018

Upcoming Arguments in the Court of Appeals in June 2018

Upcoming argument in the Court of Appeals in June 2018 that may be of interest to commercial litigators: Ambac Assurance Corporation v. Countrywide Home Loans (No. 79) (to be argued Wednesday, June 6, 2018) (“Fraud–Fraud in Inducement–Alleged fraudulent inducement to issue financial guaranty insurance policies for residential mortgage-backed securitizations–elements to establish cause of action for… Read more »

Posted: May 18, 2018

Unjust Enrichment Claim Dismissed Because Contracts Governed Claims

On May 9, 2018, Justice Sherwood of the New York County Commercial Division issued a decision in Pressley v. Ford Models, Inc., 2018 NY Slip Op. 30892(U), dismissing an unjust enrichment claim because contracts governed the claims, explaining: The determination of whether a quasi-contractual claim such as unjust enrichment should be dismissed as duplicative looks… Read more »