Monthly Archives: September 2018

Posted: September 30, 2018

Where There is a Fiduciary Relationship, the Beneficiary Has a Right to an Accounting

On September 26, 2018, the Second Department issued a decision in Webster v. Forest Hills Care Ctr., LLC, 2018 NY Slip Op. 06289, holding that where there is a fiduciary relationship, the beneficiary has a right to an accounting, explaining: The Supreme Court should have denied that branch of the defendants’ motion which was pursuant... Read more »

Posted: September 29, 2018

Court Erred in Vacating Arbitral Award; High Standard for Manifest Disregard of the Law Not Met

On September 27, 2018, the First Department issued a decision in Matter of Daesang Corp. v. NutraSweet Co., 2018 NY Slip Op. 06331, holding that a motion court erred in vacating an arbitral award because the high standard for showing manifest disregard of the law had not been met, explaining: An award may be vacated... Read more »

Posted: September 28, 2018

Insurer Estopped from Asserting Coverage Defense Based on Unreasonable Delay in Disclaiming Coverage

On September 21, 2018, the Second Circuit issued a decision in SPARTA Ins. Co. v. Technology Ins. Co., Inc., Case No. 17‐3441, holding that a liability insurer that assumed the defense of a claim was estopped from disclaiming coverage based on a nine-month delay in asserting coverage defenses and resulting prejudice to the insured. In... Read more »

Posted: September 27, 2018

No Defense Coverage Under CGL Policy for Stop Work Order Issued by NYC Department of Buildings

On September 18, 2018, Justice Hagler of the New York County Supreme Court issued a decision in Aspen Specialty Ins. Co. v. Zurich Am. Ins. Co., 2018 NY Slip Op 32328(U), holding that property owners and their construction manager were not entitled to defense coverage under a CGL policy based on a stop work order issued... Read more »

Posted: September 27, 2018

Court Grants Plaintiff Judgment on Contract Claim Despite Lack of Damages

On August 21, 2018, Justice Platkin of the Albany County Commercial Division issued a decision in Concord Dev. Co. LLC v. Amedore Concord, LLC, 2018 NY Slip Op. 51330(U), granting a plaintiff judgement on a breach of contract claim despite the plaintiff having no evidence of damages, explaining: On its breach of contract claim, Concord bears... Read more »

Posted: September 26, 2018

Prior Investigation of Third Party Did Not Trigger D&O Policy’s Prior and Pending Litigation Exclusion

On September 10, 2018, Justice Sherwood of the New York County Commercial Division issued a decision in Freedom Specialty Ins. Co. v. Platinum Mgt. (NY), LLC, 2018 NY Slip Op 32233(U), denying a D&O insurers’ motion for summary judgment based on a prior and pending litigation exclusion (the “PPL Exclusion”). Freedom Specialty  is a D&O... Read more »

Posted: September 26, 2018

Parties Should Have Been Allowed to Intervene on Eve of Summary Judgment Motions

On September 19, 2018, the Second Department issued a decision in Roman Catholic Diocese of Brooklyn, N.Y. v. Christ the King Regional High Sch., 2018 NY Slip Op. 06131, holding that third parties should have been allowed to intervene on the eve of summary judgment motions, explaining: Upon a timely motion, a person is permitted to... Read more »

Posted: September 26, 2018

Action Not Barred by Entire Controversy Doctrine

On August 23, 2018, Judge DeAngelis of the Morris County Superior Court (Law Division) issued a decision in Maffei v. Apex Fund Services (US), Inc., Docket No. L-63-18, refusing to dismiss an action based on the entire controversy doctrine, explaining: Defendants argue that Plaintiffs’ Complaint in the present action violates the entire controversy doctrine and... Read more »

Posted: September 26, 2018

Court Analyzes Question of Successor Liability

On August 22, 2018, Judge Vignuolo of the Middlesex County Superior Court (Law Division) issued a decision in Babulal v. Dynamic Metals Processing, Inc., Docket No. L-1508-14, analyzing whether two defendants were entitled to summary judgment dismissing claims based on successor liability, explaining: We turn now to the substance of Gary Metal and Gary Machinery’s... Read more »

Posted: September 26, 2018

Business Judgment Rule Applies to Allegations of Board’s Incompetence

On August 22, 2018, the New Jersey Appellate Division issued a decision in Alloco v. Ocean Beach and Bay Club, Docket No. A-0922-16T3, holding that the business judgment rule protects a board from allegations of incompetence, explaining: Plaintiffs also argue that the Board and its rules are incompetent. However, showing Board members or their rules... Read more »