Monthly Archives: February 2017

Posted: February 28, 2017

Arguments of Interest in the Court of Appeals in March 2017

Upcoming arguments in the Court of Appeals of interest to commercial litigators in March 2017 include the following: Nomura Home Equity Loan, Inc. v. Nomura Credit & Capital, Inc. (to be argued Wednesday, March 22) (“Contracts–Breach or performance of contract–Residential mortgage-backed securities—Whether the “sole remedy” provision requiring defendant to cure or repurchase mortgage loans not... Read more »

Posted: February 27, 2017

Equitable Subrogation Not Available Against Third Party Whose Liability Arises By Contract; Case Remanded For Consideration of Contractual Subrogation Claim

On January 17, 2017, the First Department issued a decision in Millennium Holdings LLC v. Glidden Co., 2017 NY Slip Op. 00258, holding that the doctrine of equitable subrogation did not permit an insurance carrier to recover against a third-party whose liability to the insured arose only by contract, and remanding the case to the... Read more »

Posted: February 26, 2017

Discord Between LLC Members so Severe That it Justified LLC’s Dissolution

On February 16, 2017, Justice Dufficy of the Queens County Commercial Division issued a decision in Matter of 47th Rd. LLC, 2017 NY Slip Op. 50196(U), holding that the discord between an LLC’s members was so severe that it justified the LLC’s dissolution, explaining: In determining applications for a judicial dissolution of a limited liability... Read more »

Posted: February 25, 2017

Insurer Adequately Pleads Reliance on RMBS Issuer’s Representations

On December 19, 2016, Justice Friedman of the New York County Commercial Division issued a decision in Ambac Assurance Corp. v. Countrywide Home Loans, Inc., 2016 NY Slip Op. 51864(U), holding that an insurer had adequately pled reliance on an RMBS issuer’s misrepresentations, explaining: The general standards for pleading and proof of justifiable reliance have... Read more »

Posted: February 24, 2017

Default Judgment Denied For Failure to Allege or Provide Facts Showing Liability

On February 10, 2017, Justice Kornreich of the New York County Commercial Division issued a decision in BMG Rights Management (US) LLC v. Radar Pictures, Inc., 2017 NY Slip Op. 30290(U), denying without prejudice a motion for default judgment for failure to allege or provide facts showing liability, explaining: CPLR 3215(a) authorizes the court to... Read more »

Posted: February 23, 2017

Party Waived Right to Seek Objected-To Discovery By Not Making Timely Motion to Compel

On February 14, 2017, Justice Oing of the New York County Commercial Division issued a decision in New York University v. International Brain Research Foundation, Inc., 2017 NY Slip Op. 30291(U), holding that a party waived its right to seek discovery by not making a timely motion to compel its production, explaining: Defendant now moves... Read more »

Posted: February 22, 2017

Court Erred in Vacating Undertaking Before Determining Damages Suffered From TRO

On February 16, 2017, the First Department issued a decision in Canales v. Finger, 2017 NY Slip Op. 01266, holding that it was error to vacate an undertaking before determining whether the defendants were damaged by entry of a temporary restraining order and ordering that the undertaking be posted again, explaining: [T]he court erred in... Read more »

Posted: February 20, 2017

First-in-Time Analysis Under CPLR 3211(a)(4) Based on Filing of Summons With Notice

On January 12, 2017, Justice Rosenbaum of the Monroe County Commercial Division issued a decision in Quatro Consulting Group, LLC v. Buffalo Hotel Supply Co., Inc., 2017 NY Slip Op. 27032, holding that an action commenced by filing of a summons with notice was first-in-time for purposes of CPLR 3211(a)(4) even though the complaint in... Read more »