Monthly Archives: July 2015

Posted: July 31, 2015

Second Voluntary Discontinuance is Adjudication the Merits Barring Further Assertion of Claims

On July 15, 2015, the Second Department issued a decision in Haber v. Raso, 2015 NY Slip Op. 06113, holding that when a plaintiff brings, and then voluntarily discontinues, two actions relating to the same subject matter, further claims are barred, explaining: CPLR 3217(c) provides that unless otherwise stated, inter alia, in a notice of… Read more »

Posted: July 30, 2015

Restrictive Covenant Made in Connection With Sale of Business Enforced by Stricter Standard

On July 10, 2015, the Fourth Department issued a decision in Genesee Valley Trust Co. v. Waterford Group, LLC, 2015 NY Slip Op. 06071, holding that a restrictive covenant limiting the employment of a business’s seller is enforced more strictly, explaining: Because [the defendant] sold his GVT shares to CNC, and CNC acquired GVT’s goodwill… Read more »

Posted: July 29, 2015

No Fraudulent Inducement Claim When Contract Disclaims All Non-Contractual Representations

On July 15, 2015, the Second Department issued a decision in Oseff v. Scotti, 2015 NY Slip Op. 06123, holding that a claim for being fraudulently induced to enter into a contract failed when the contract explicitly disclaimed all non-contractual representations. In Oseff, the plaintiffs brought actions relating to “recover damages for breach of contract”… Read more »

Posted: July 28, 2015

Alleged Recipient of Embezzeled Funds Subject to Claim for Unjust Enrichement

On July 10, 2015, the Fourth Department issued a decision in Simpson & Simpson, PLLC v. Lippes Mathias Wexler Friedman LLP, 2015 NY Slip Op. 06065, upholding a claim for unjust enrichment. In Simpson & Simpson, the trial court dismissed the plaintiff’s claim for unjust enrichment based on allegations that the defendants had received money… Read more »

Posted: July 27, 2015

Court of Appeals Illustrates Application of Rules of Contract Construction

On June 25, 2015, the Court of Appeals issued a decision in Universal American Corp. v. National Union Fire Insurance Co. of Pittsburgh, PA., 2015 NY Slip Op. 05516, interpreting an insurance policy. In Universal American Corp., the plaintiff health insurance company brought a claim against its insurer “for indemnification to cover losses resulting from… Read more »

Posted: July 26, 2015

Plaintiff Must Nullify Cancellation Before Bringing A Derivative Action On Behalf Of A Defunct Delaware LLC

On July 6, 2015, Justice Oing of the New York County Commercial Division issued a decision in Meissner v. Yun, 2015 NY Slip Op. 31181(U), granting summary judgment against all of a plaintiff’s derivative claims. Meissner involved the disputed ownership of a Delaware LLC, and the plaintiff advanced a number of claims—breach of fiduciary duty,… Read more »

Posted: July 25, 2015

Action Dismissed for Lack of Standing

On June 26, 2015, Justice Bransten of the New York County Commercial Division issued a decision in DJZV Holdings LLC v. Citibank, N.A., 2015 NY Slip Op. 31125(U), dismissing an action for lack of standing. In DJZV Holdings, the plaintiffs brought an action relating to an agreement with the defendant bank regarding an account held… Read more »

Posted: July 24, 2015

Jury’s Brokerage Fee Award Vacated Due to Lack of Evidence Proposed Buyer Was Able to Purchase

On July 8, 2015, the Second Department issued a decision in Island Associates Real Estate, Inc. v. Doukas, 2015 NY Slip Op. 05913, reversing a jury verdict awarding a broker’s commission. In Island Associates Real Estate, the trial court refused to set aside a jury verdict awarding the plaintiff a broker’s commission. The Second Department… Read more »

Posted: July 24, 2015

Claim for Unjust Enrichment Lies Against Party Who Received Property Stolen From Plaintiff

On July 2, 2015, the First Department issued a decision in Lau v. Lazar, 2015 NY Slip Op. 05770, holding that a claim for unjust enrichment lies against a person who received property had been stolen from the plaintiff. In Lau, the plaintiff brought unjust enrichment claims against several of the defendants. The First Department… Read more »