Monthly Archives: February 2018

Posted: February 28, 2018

Upcoming Arguments in the Court of Appeals in March

Upcoming argument in the Court of Appeals in March 2018 that may be of interest to commercial litigators include: Skanska USA Building, Inc. v Atlantic Yards B2 Owner, LLC (No. 38) (to be argued Tuesday, March 20, 2018) (“Contracts–Breach or Performance of Contract–Construction maintenance contract for construction of high-rise residential tower in the Atlantic Yards... Read more »

Posted: February 27, 2018

Accident that was the “Unintended Consequence of an Intentional Act” is a Covered “Occurrence” under CGL Policy

On February 21, 2018, the Second Circuit issued a decision in Philadelphia Indemnity Ins. Co. v. Central Terminal Restoration Corp., Case No. 17‐1636‐cv, holding that a car accident caused by a driver to whom the insured had served alcohol when he was visibly intoxicated, in violation of New York’s dram shop law, was a covered... Read more »

Posted: February 27, 2018

Indenture Trustee Can Bring Claims to Recover Losses Incurred by all Noteholders from Unpaid Notes

On February 20, 2018, the Court of Appeals issued a decision in Cortlandt St. Recovery Corp. v. Bonderman, 2018 NY Slip Op. 01149, holding that an indenture trustee can bring claims to recover losses incurred by all noteholders from unpaid notes, explaining: An indenture is essentially a written agreement that bestows legal title of the... Read more »

Posted: February 26, 2018

Second Department Holds That Yellowstone Remedy Can Be Waived In A Commercial Lease

On January 31, 2018, the Second Department issued a decision in 159 MP Corp. v. Redbridge Bedford, LLC, 2018 N.Y. Slip Op. 00537, in which a divided Second Department panel upheld a decision by Justice Schmidt of the Kings County Supreme Court that denied a Yellowstone application and dismissed a declaratory judgment action seeking a... Read more »

Posted: February 23, 2018

All Risk Insurance Policy Did Not Cover Loss From Returning Property to Its Rightful Owner

On February 13, 2018, the First Department issued a decision in Dae Assoc., LLC v. AXA Art Ins. Corp., 2018 NY Slip Op. 01026, holding that an “all risk” insurance policy did not cover a loss from returning property to its rightful owner, explaining: The all-risk policy at issue, which covered insured property for “all... Read more »

Posted: February 22, 2018

Shareholder’s Failure to Help Run Company No Basis for Reducing His Shareholding

On February 13, 2018, Justice Kornreich of the New York County Commercial Division issued a decision in Stavroulakis v. Pelakanos, 2018 NY Slip Op. 50180(U), holding that a shareholder’s failure to help run a company was not a valid basis for reducing his shareholding, explaining: To the extent defendants invoke the concept of “fairness” by... Read more »

Posted: February 21, 2018

Derivative Action Dismissed for Failure to Plead Demand Futility With Particularity

On February 13, 2018, the First Department issued a decision in Retirement Plan for Gen. Empls. of the City of N. Miami Beach v. McGraw, 2018 NY Slip Op. 01027, dismissing a derivative action for failure to plead demand futility with particularity, explaining: The motion court correctly dismissed the complaint, as plaintiffs failed to adequately... Read more »

Posted: February 20, 2018

Judge Bianco Dismisses Action For Improper Venue Based On Forum Selection Clause That designated “The Courts Of The State Of New York” As Venue

Posted by Solomon N. Klein, Litigation Partner A recent decision by District Judge Joseph F. Bianco offers a reminder that the right to exercise federal jurisdiction can be contractually waived in a forum selection clause. (Wiest Int’l, GMBH v. Zobel, 17-CV-6722 (E.D.N.Y Feb. 6, 2018) (JFB) (GRB)). Forum selection clauses – typically not the focus... Read more »