Monthly Archives: December 2018

Posted: December 31, 2018

Memorandum of Understanding Found to be Unenforceable Agreement to Agree in the Future on Terms Rather Than Binding Contract

On December 20, 2018, the Third Department issued a decision in Doller v. Prescott, 2018 NY Slip Op. 08733, holding that a memorandum of understanding was an unenforceable agreement to agree in the future on terms rather than a binding contract, explaining: Plaintiff’s first, second, fifth and seventh causes of action for breach of contract, fraud,... Read more »

Posted: December 30, 2018

Claims Adding New Defendants Related-Back to Original Claims Even Though New Defendants Could Have Been Identified Earlier

On December 20, 2018, the Third Department issued a decision in NYAHSA Servs., Inc., Self-Insurance Trust v. People Care Inc., 2018 NY Slip Op. 08735, holding that claims adding new defendants related-back to the date of the original claims even though the new defendants could have been identified earlier, explaining: [I]n order to avoid dismissal, it... Read more »

Posted: December 29, 2018

Written Agreement Requirement of CPLR 2104 Does Not Apply to Pre-Litigation Settlements

On November 8, 2018, Justice Hudson of the Suffolk County Commercial Division issued a decision in Walter Boss, Inc. v. Roncalli Freight Co., Inc., 2018 NY Slip Op 51891(U), holding that CPLR 2104’s requirement that a stipulation of settlement be in writing does not apply to the settlement of disputes before litigation, explaining: CPLR 2104... Read more »

Posted: December 28, 2018

Upcoming Arguments in the Court of Appeals in January 2019

Upcoming arguments in the Court of Appeals in January 2019 that may be of interest to commercial litigators: Arrowhead Capital Finance, Ltd. v. Cheyne Specialty Finance Fund L.P. et al., APL-2018-00005 (to be argued Wednesday, January 9, 2019) (“Attorney and Client–Unauthorized Practice of Law–Whether failure of plaintiff’s counsel to maintain an in-state office at the... Read more »

Posted: December 27, 2018

Court Dismisses Action, Enforcing Forum Selection Clause

On December 14, 2018, Justice Emerson of the Suffolk County Commercial Division issued a decision in Somerset Fine Home Bldg., Inc. v. Simplex Indus., Inc., 2018 NY Slip Op. 51845(U), dismissing an action based on a forum selection clause, explaining: Although once disfavored by the courts, it is now recognized that parties to a contract may... Read more »

Posted: December 26, 2018

Australian Bank Bill Swap Reference Rate: Was Something Underhanded Happening Down Under

This post covers the alleged underlying facts and November 26, 2018, order by United States District Judge Lewis A. Kaplan dismissing all but one plaintiff in the case for lack of standing in Richard Dennis et al. v. JPMorgan Chase & Co., 16-CV-6496, a case in the Southern District of New York concerning alleged manipulation... Read more »

Posted: December 26, 2018

Idea Misappropriation Claims Dismissed on Summary Judgment for Lack of Novelty

On December 5, 2018, Justice Scarpulla of the New York County Commercial Division issued a decision in Hyperlync Tech., Inc. v. Verizon Sourcing LLC, 2018 NY Slip Op. 33123(U), dismissing a claim for idea misappropriation on summary judgment for lack of novelty, explaining: To prove a claim for misappropriation of ideas, a plaintiff must establish: (1)... Read more »

Posted: December 25, 2018

Defendant Did Not Waive Attorney-Client Privilege

On December 13, 2018, the First Department issued a decision in U.S. Bank Natl. Assn. v. Lightstone Holdings LLC, 2018 NY Slip Op. 08556, holding that there had been no waiver of the attorney-client privilege, explaining: The motion court properly found that no subject matter waiver of the privilege had occurred. Although the privileged information sought by... Read more »

Posted: December 24, 2018

Option Unenforceable Due to Unreasonable Delay in Exercising It

On December 12, 2018, the Second Department issued a decision in Breslin v. Frankel, 2018 NY Slip Op. 08456, holding that an option was unenforceable because of an unreasonable delay in exercising it, explaining: An option contract is an agreement, in exchange for consideration, to hold an offer open, thereby conferring upon the optionee the right... Read more »

Posted: December 23, 2018

Court Affirms Order Dissolving Corporation Whose Shareholders Were Deadlocked

On December 12, 2018, the Second Department issued a decision in Matter of ANO, Inc. v. Goldberg, 2018 NY Slip Op. 08476, affirming an order dissolving a corporation whose shareholders were deadlocked, explaining: We agree with the Supreme Court’s determination granting the petition for judicial dissolution. The evidence before the court demonstrated that the dissension between the... Read more »