Blogs

Monthly Archives: February 2019

Posted: February 28, 2019

First Department Affirms Discovery Sanction

On February 26, 2019, the First Department issued a decision in Transasia Commodities Inv. Ltd. v. NewLead JMEG, LLC, 2019 NY Slip Op. 01361, affirming a discovery sanction, explaining: Defendants-appellants’ motion to vacate their default was properly denied. Defendants’s failure to timely pay a $15,000 court-ordered sanction may be deemed willful, as such recent conduct... Read more »

Posted: February 27, 2019

Party That Did Not Sign Contract Can Invoke Contract’s Forum Selection Clause Based on Close Relationship With Signatory

On February 8, 2019, Justice Borrok of the New York County Commercial Division issued a decision in Miura Golf LP v. Irving Golf, Inc., 2019 NY Slip Op. 30298(U), holding that a party that did not sign a contract’s forum selection clause nonetheless could enforce it based on the party’s close relationship with a signatory, explaining:... Read more »

Posted: February 26, 2019

Dissolved Corporation Can Bring Claim as Part of its Winding Up

On February 8, 2019, Justice Borrok of the New York County Commercial Division issued a decision in A&B Deli Inc. v. 251 Sixth Ave., LLC, 2019 NY Slip Op. 30289(U), holding that a dissolved corporation could bring a claim as part of its winding up, explaining: The Defendant argues that the action must be dismissed... Read more »

Posted: February 25, 2019

Court Appoints Temporary Receiver Over Deadlocked Corporation

On January 31, 2019, Justice Platkin of the Albany County Commercial Division issued a decision in Matter of Papakonstadinou (Gozzer Corp.), 2019 NY Slip Op. 50164(U), appointing a temporary receiver over a deadlocked corporation, explaining: The Court finds that petitioner has demonstrated that the appointment of a temporary receiver is warranted to protect and preserve the... Read more »

Posted: February 24, 2019

Lack of Consideration Defense Even to Unconditional Guaranty

On February 19, 2019, the First Department issued a decision in Moon 170 Mercer, Inc. v. Vella, 2019 NY Slip Op. 01187, holding that lack of consideration is a defense even to an unconditional guaranty, explaining: Based on the reinstatement of the wrongful eviction claim asserted by the nonparty tenant against respondent landlord Moon 170 Mercer, Inc.... Read more »

Posted: February 23, 2019

Employer Failed to Justify Injunction Enforcing Restrictive Covenant With Former Employee

On February 7, 2019, the First Department issued a decision in Harris v. Patients Med., P.C., 2019 NY Slip Op. 00974, holding that an employer had failed to justify an injunction enforcing a restrictive covenant with a former employee, explaining: A preliminary injunction is an extraordinary provisional remedy which will only issue where the proponent demonstrates... Read more »

Posted: February 22, 2019

RMBS Trustee’s Failure to Give With Notice to Cure Within Limitations Period Does Not Bar Trustee from Curing Failure and Refiling Suit

On February 19, 2019, the Court of Appeals issued a decision in U.S. Bank Natl. Assn. v. DLJ Mtge. Capital, Inc., 2019 NY Slip Op. 01169, holding that an RMBS “[t]rustee’s failure to comply with the notice and cure or repurchase condition precedent within the applicable statute of limitations does not foreclose refiling of its... Read more »

Posted: February 21, 2019

Fraud Claim Not Duplicative of Contract Claim Because it Was Alleged Misrepresentation Made Before Contract and Was Collateral to It

On February 5, 2019, the First Department issued a decision in Dynamic-Hakim, LLC v. Maloney, 2019 NY Slip Op. 00836, holding that a fraud claim was not duplicative of a breach of contract claim because the alleged misrepresentation was made before the contract was entered into and was collateral to it, explaining: The complaint alleges that... Read more »

Posted: February 20, 2019

RMBS Trustee’s Untimely-Filed Complaint Cannot Relate Back to Certificateholder’s Suit on Behalf of Trust, Which Was Barred by Trust’s No Action Clause

On February 19, 2019, the Court of Appeals issued a decision in U.S. Bank Natl. Assn. v. DLJ Mtge. Capital, Inc., 2019 NY Slip Op. 01168, holding that where a party without standing to bring an action on behalf of a trust under the trust’s no action clause timely brings an action on behalf a... Read more »

Posted: February 19, 2019

Trade Secret Misappropriation Claim Dismissed for Failure Adequately to Describe the Alleged Trade Secrets

On February 5, 2019, the First Department issued a decision in Schroeder v. Cohen, 2019 NY Slip Op. 00838, dismissing a trade secret misappropriation claim for failure adequately to describe the alleged trade secrets, explaining: Plaintiffs’ misappropriation of trade secrets and ideas claims were properly dismissed because plaintiffs failed to describe the allegedly misappropriated ideas with... Read more »