Monthly Archives: January 2018

Posted: January 31, 2018

Claims Barred Above Amount Set by Limitation of Liability Provision

On January 23, 2018, the First Department issued a decision in Electron Trading, LLC v. Morgan Stanley & Co. LLC, 2018 NY Slip Op. 00380, holding that certain claims were barred by a limitation of liability provision, explaining: The limitation of liability provision in the ELA provides, in pertinent part, that “neither party’s total liability... Read more »

Posted: January 30, 2018

Documents Protected from Production Under Common Interest Privilege

On January 24, 2018, the Second Department issued a decision in Saint Annes Dev. Co. v. Russ, 2018 NY Slip Op. 00451, holding that documents were protected by the common interest privilege, explaining: The common-interest privilege is an exception to the traditional rule that the presence of a third party waives the attorney-client privilege. To... Read more »

Posted: January 29, 2018

Undefined Term in Policy Exclusion Not Ambiguous Where it Has a “Clear Meaning in Federal Law”

On January 22, 2018, the Second Circuit issued a decision in Beazley Ins. Co. v. ACE American Ins. Co., Case No. 16‐2812‐cv, holding that an undefined term in a policy exclusion was not ambiguous because it had a “clear meaning in federal law.” Beazley Ins. Co. is an insurance coverage action relating to investor lawsuits against NASDAQ... Read more »

Posted: January 29, 2018

Court Properly Granted “Extreme” Remedy of Appointing Temporary Receiver

On January 24, 2018, the Second Department issued a decision in Meagher v. Doscher, 2018 NY Slip Op. 00420, approving the appointment of a temporary receiver, explaining: [T]he Supreme Court properly granted the plaintiffs’ motion in Action No. 2 to appoint a temporary receiver for Emerson Associates. The appointment of a temporary receiver is an... Read more »

Posted: January 28, 2018

Transcripts and Videos of Arguments in the Court of Appeals for January 2018 Now Available

On December 24, 2017, we noted four cases of interest from the oral arguments before the Court of Appeals in January 2018: Forman v Henkin APL-2016-00222 (argued on Tuesday, January 2, 2018) (“Disclosure–Discovery and Inspection–Scope of disclosure–social media–whether a personal injury plaintiff may be compelled to produce photographs privately posted on Facebook and authorizations related... Read more »

Posted: January 27, 2018

Yellowstone Injunction Denied; Tenant Did Not Show Ability or Intention to Cure Failure to Pay Rent

On January 16, 2018, Justice Ash of the Kings County Commercial Division issued a decision in Serpin Intl. Gourmet Foods, Inc. v. Brooklyn Kings Plaza, LLC, 2018 NY Slip Op. 30069(U), denying a motion for a Yellowstone injunction because the tenant had not shown that ability or intention of curing its failure to pay rent,... Read more »

Posted: January 26, 2018

Questions of Fact Precluded Dismissal on Summary Judgment of Action Based on Oral Contract Subject to Statute of Frauds

On January 11, 2018, Justice Knipel of the Kings County Commercial Division issued a decision in Toobian v. Golzad, 2018 NY Slip Op. 30068(U), holding that questions of fact precluded summary judgment in an action based on an oral contract subject to the statute of frauds, explaining: In response to the defendants’ prima facie showing... Read more »

Posted: January 25, 2018

Court Requires Parties to Arbitrate Some Claims and Have Others Decided by the Court

On January 11, 2018, Justice Knipel of the Kings County Commercial Division issued a decision in Levy v. Donel Corp., 2018 NY Slip Op. 30070(U), requiring parties to arbitrate some claims while litigating others, explaining: Pursuant to CPLR 7503 (a), where there is no substantial question whether a valid agreement was made or complied with... Read more »

Posted: January 24, 2018

Judge Wexler Dismisses Jones Act Claims But Not Maritime Law Claims Where Beneficiary Died Prior to Asserting Claim

In a January 9, 2018 ruling, Judge Leonard D. Wexler highlighted the rigid structure applicable to negligence actions for deceased seamen under the Jones Act. (In re Wittich Bros. Marine Inc. , 15–CV-5210 (LDW)(ARL)). Practitioners often reflexively assume that a potential cause of action available to an individual will survive death and accrue to the... Read more »