Monthly Archives: December 2016

Posted: December 29, 2016

Court Dismisses Both Complaint and Counterclaims for Discovery Abuses

On December 14, 2016, Justice Oing of the New York County Commercial Division issued a decision in Landmark Ventures, Inc. v. Gallucci, 2016 NY Slip Op. 32457(U), confirming a referee’s recommendation that both the plaintiff’s claims and the defendant’s counterclaims be dismissed as a discovery sanction, explaining: Following a number of appearances for conference, JHO… Read more »

Posted: December 27, 2016

Affirmative Defense Not in Answer Not Waived Because it Was Subsequently Raised and Responded to

On December 15, 2016, the First Department issued a decision in American Stevedoring, Inc. v. Red Hook Container Terminal, LLC, 2016 NY Slip Op. 08470, holding that an affirmative defense was not waived despite not having been raised in an answer, explaining: Contrary to the motion court’s conclusion, defendant did not waive the illegality defense… Read more »

Posted: December 26, 2016

Court Agrees to Decide Late-Filed Motion to Dismiss

On December 8, 2016, Justice Scarpulla of the New York County Commercial Division issued a decision in Magder v. Lee, 2016 NY Slip Op. 32440(U), deciding a motion to dismiss even though it was untimely, explaining: A pre-answer motion to dismiss, pursuant to CPLR 3211(a), must be made before service of the responsive pleading is… Read more »

Posted: December 25, 2016

Court Awards Fees-on-Fees, But Drastically Cuts Referee’s Award

On December 5, 2016, Justice Kornreich of the New York County Commercial Division issued a decision in Sina Drug Corp. v. Mohyuddin, 2016 NY Slip Op. 32392(U), awarding attorneys’ fees authorized by agreement, including fees-on-fees, but drastically cutting the amount of the award recommended by a referee. In Sina Drug Corp., the court referred to… Read more »

Posted: December 24, 2016

Insurance Law § 3404 Does Not Bar Policy Condition That Insured Building Have Sprinklers

On December 9, 2016, Justice Oing of the New York County Commercial Division issued a decision in Illinois Union Insurance Co. v Grandview Palace Condominiums Association Corp., 2016 NY Slip Op. 32421(U), holding that an insurance policy condition requiring a building to have sprinklers did not violate Insurance Law § 3404. Insurance Law § 3404… Read more »

Posted: December 23, 2016

Acceptance of Bid at Auction Created Binding Agreement Notwithstanding Lack of Final Writing

On December 20, 2016, the Court of Appeals issued a decision in Stonehill Capital Management, LLC v. Bank of the West, 2016 NY Slip Op. 08481, granting plaintiff’s motion for summary judgment for breach of contract notwithstanding that the contract envisioned that it would be memorialized in a later, never-executed, writing. In Stonehill Capital Management,… Read more »

Posted: December 22, 2016

Situs of Injury for Economic Damage is Where Original Critical Events Took Place

On December 7, 2016, Justice Bransten of the New York County Commercial Division issued a decision in Ace Decade Holdings Ltd. v. UBS AG, 2016 NY Slip Op. 32415(U), holding that in evaluating the existence of personal jurisdiction under CPLR § 302(a)(3), the location of the original critical events upon which a claim for economic… Read more »

Posted: December 21, 2016

Escrow Agent Has Fiduciary Duty to Persons With a Beneficial Interest in the Escrowed Property

On December 14, 2016, the Second Department issued a decision in Sasidharan v. Piverger, 2016 NY Slip Op. 08387, holding that an escrow agent has a fiduciary duty, explaining: An escrow agent not only has a contractual duty to follow the escrow agreement, but additionally becomes a trustee of anyone with a beneficial interest in… Read more »