Monthly Archives: February 2019

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 »

Posted: February 18, 2019

Even Though Home Improvement Contract Was Unenforceable for Failure to Provide Required Notice, Plaintiff Still Could Recover Value of Work Performed

On February 8, 2019, the Fourth Department issued a decision in Weiss v. Zellar Homes, Ltd., 2019 NY Slip Op. 01024, holding that even though a home improvement contract was unenforceable, the defendant still could recover the reasonable value of the work it performed, explaining: We agree with plaintiffs on their appeal that Supreme Court erred... Read more »

Posted: February 17, 2019

Fraud Claim Dismissed for Failure to Show Out-of-Pocket Damages

On February 8, 2019, the Fourth Department issued a decision in Southwestern Invs. Group, LLC v. JH Portfolio Debt Equities, LLC, 2019 NY Slip Op. 01035, dismissing a fraud claim for failure to show out-of-pocket damages, explaining: To allege a cause of action based on fraud, plaintiff must assert a misrepresentation or a material omission of... Read more »

Posted: February 16, 2019

Prompt Payment Act’s Arbitration Provisions Make Contract’s Agreement to Litigate Disputes Covered by the Act Unenforceable

On January 30, 2019, Justice Ostrager of the New York County Commercial Division issued a decision in Dakota, Inc. v. Nicholson & Galloway, Inc., 2019 NY Slip Op. 30270(U), enforcing the Prompt Payment Act’s provisions making agreements to resolve disputes by litigation rather than arbitration unenforceable, explaining: Here, the plain language of the PPA makes void and... Read more »

Posted: February 15, 2019

Mechanic’s Lien Unenforceable Because it Was Not Timely Filed

On January 28, 2019, Justice Cohen of the New York County Commercial Division issued a decision in Manhattan Mech. Contrs., Inc. v. Nissan N. Am., Inc., 2019 NY Slip Op. 30223(U), holding that a mechanic’s lien was unenforceable because it was not timely filed, explaining: A mechanic’s lien foreclosure action cannot be maintained when the lien... Read more »

Posted: February 14, 2019

A Lawyer’s Failure to Have an Office in New York Does Not Doom Cases Filed by That Lawyer

On February 14, 2019, the Court of Appeals issued a decision in Arrowhead Capital Fin., Ltd. v. Cheyne Specialty Fin. Fund L.P., 2019 NY Slip Op. 01124, holding that a lawyer’s failure to have an office in New York does not render void actions filed by that lawyer, explaining: An attorney who is regularly admitted... Read more »

Posted: February 12, 2019

Third-Party Complaint Improper When Third-Party Defendants Not Liable for all or Part of Plaintiff’s Claims Against Defendant

On December 12, 2018, Justice Grays of the Queens County Commercial Division issued a decision in Rubinoff v Yunatanov, 2018 NY Slip Op. 33482(U),dismissing a third-party complaint because the third-party defendants were not allged to be liable for all or pat of the plaintiff’s claims against the defendant, explaining: The plaintiffs began the instant action... Read more »