Monthly Archives: November 2017

Posted: November 30, 2017

Court Erred in Converting Motion to Dismiss into Motion for Summary Judgment

On November 28, 2017, the First Department issued a decision in Island Intellectual Prop. LLC v. Reich & Tang Deposit Solutions, LLC, 2017 NY Slip Op. 08311, holding that the motion court erred in converting a motion to dismiss into a motion for summary judgment, explaining: The motion court should not have entertained plaintiffs’ cross... Read more »

Posted: November 29, 2017

K-1s Not Dispositive Proof of Partnership Interests

On November 28, 2017, the First Department issued a decision in Rakosi v. Sidney Rubell Co., LLC, 2017 NY Slip Op. 08341, holding that K-1s were not dispositive proof of a partnership interest, explaining: Defendants present the entities’ K-1s as dispositive proof that Rubell family LLC-transferees of Rubell’s interests are entity partners; however, such documents,... Read more »

Posted: November 28, 2017

Judge Cogan Re-Imposes Sanctions in Case of International Intrigue

District Judge Brian M. Cogan recently re-imposed sanctions on the defendants in Funk v. Belneftekhim a/k/a Concern Belneftekhim, 14 CV 0376 (E.D.N.Y. Oct. 17, 2017) after the Second Circuit addressed the nuances of sanctioning parties for non-compliances with jurisdictional discovery. Of course, the term “jurisdictional discovery” is a bit of a misnomer, since a court... Read more »

Posted: November 28, 2017

Jury Trial Waiver in Escrow Agreement Governed Suit on Related Purchase Agreement

On November 21, 2017, the First Department issued a decision in Highbridge House Ogden LLC v. Highbridge Entities LLC, 2017 NY Slip Op. 08187, holding that a jury trial waiver in an escrow agreement applied to an action based on a related purchase agreement, explaining: The plain terms of the Purchase Agreement and the Escrow... Read more »

Posted: November 27, 2017

No Claim Against Insurer for Breach of the Covenant of Good Faith and Fair Dealing Absent “Foreseeable Consequential Damages”

On October 19, 2017, Justice Scarpulla of the New York County Commercial Division issued a decision in Central Amusement International LLC v. Lexington Insurance Co., 2017 NY Slip Op. 32233(U), holding that an insured failed to state a claim against an insurance company for breach of the covenant of good faith and fair dealing, explaining:... Read more »

Posted: November 25, 2017

Tenant Must Seek Yellowstone Injunction Before Cure Period Ends

On November 22, 2017, the Second Department issued a decision in Riesenburger Properties, LLLP v. Pi Associates, LLC, 2017 NY Slip Op. 08294, affirming the denial of a Yellowstone injunction because the tenant sought the injunction after the time to cure the defects alleged by the landlord had expired, explaining: A Yellowstone injunction maintains the... Read more »

Posted: November 24, 2017

Cayman Islands Procedural Law Does Not Apply to Derivative Claims of Cayman Entity in New York Lawsuit

On November 20, 2017, the Court of Appeals issued a decision in Davis v. Scottish Re Group Ltd., 2017 NY Slip Op. 08157, holding that foreign procedural law did not apply to derivative claims relating to a foreign entity in a New York lawsuit, explaining: The parties agree that Cayman Islands substantive law governs the... Read more »

Posted: November 23, 2017

If a Debtor Controls Funds Escrowed to Pay Specific Creditors, Those Funds Are Subject to Other Creditors’ Claims

On November 15, 2017, the Second Department issued a decision in Freedman v. Hason, 2017 NY Slip Op. 07977, holding that even if a debtor escrows funds to pay specific creditors, those funds are subject to the claims of other creditors if the debtor retains control of the funds, explaining: Hason’s contention that the proceeds... Read more »

Posted: November 22, 2017

Mere Error in Judgment Cannot Be Basis for Malpractice Claim

On November 14, 2017, the First Department issued a decision in Smith, Gambrell & Russell, LLP v. Telecommunications Systems Inc., 2017 NY Slip Op. 07954, holding that a mere error in judgment cannot be the basis for a legal malpractice claim, explaining: On appeal, defendant argues that plaintiff’s filing of a sanctions motion, instead of... Read more »