Monthly Archives: November 2019

Posted: November 30, 2019

Trustee Cannot Rely on CPLR 205 Relation Back When Trust Beneficiary, Not Trustee, Initially Brought Suit

On November 19, 2019, the First Department issued a decision in US Bank N.A. v. UBS Real Estate Sec., Inc., 2019 NY Slip Op. 08355, holding that an RMBS trustee could not rely on CPLR 205 relation back when a trust beneficiary, not the trustee, initially brought suit, explaining: The dispositive issue in both appeals... Read more »

Posted: November 29, 2019

Alleged Poor Administration or Planning Insufficient to Bar Defendant’s Reliance on No Damages for Delay Clause

On November 19, 2019, the First Department issued a decision in WDF Inc. v Turner Constr. Co., 2019 NY Slip Op. 08379, holding that alleged poor administration or planning was insufficient to overcome a construction contract’s no damages for delay clause, explaining: This case is factually strikingly similar to another action brought by plaintiff seeking... Read more »

Posted: November 28, 2019

Liability for Aiding and Abetting Requires Affirmative Acts, Not Acquiescence

On November 20, 2019, the Second Department issued a decision in Land v. Forgione, 2019 NY Slip Op. 08396, holding that liability for aiding and abetting requires affirmative acts, not acquiescence to another’s misconduct, explaining: To recover damages for aiding and abetting tortious conduct, a plaintiff must allege knowledge of the alleged tortious conduct by... Read more »

Posted: November 27, 2019

Retaliation Claims Barred by Noerr-Pennington Doctrine

On November 15, 2019, Justice Scarpulla of the New York County Commercial Division issued a decision in Pozner v. Fox Broadcasting Co., 2019 NY Slip Op. 33415(U), holding that retaliation claims were barred by the Noerr-Pennington doctrine, explaining: Pozner’s retaliation claim alleges that Fox’s counterclaims were brought solely as retaliation for Pozner’s claims of discrimination... Read more »

Posted: November 26, 2019

Discharge in Bankruptcy did not Automatically Accelerate Mortgage Debt, Affecting Statute of Limitations

On November 15, 2019, the Fourth Department issued a decision in Wilmington Sav. Fund Socy., FSB v. Fernandez, 2019 NY Slip Op. 08290, holding that a discharge in bankruptcy did not automatically accelerate a mortgage debt, affecting the statute of limitations, explaining: With respect to a mortgage payable in installments, separate causes of action accrue... Read more »

Posted: November 26, 2019

Exclusion for “Intentional and Criminal Acts” Barred Defense Coverage for Parents Accused of “Negligent Supervision” of Minor Son Who Committed Sexual Assault

Posted by Bradley J. Nash, Litigation Partner On November 20, 2019, Judge Briccetti of the SDNY issued a decision in Metropolitan Prop. & Cas. Ins. Co. v. Comley, Case No. 18-cv-9259 (VB), holding that a liability insurer properly denied defense coverage, under an exclusion for “intentional and criminal acts”, for a lawsuit alleging “negligent supervision”... Read more »

Posted: November 25, 2019

Whether Non-Signatory of Arbitration Provision Bound By it is Question for Court, Not Arbitrator

On November 14, 2019, the First Department issued a decision in Matter of 215-219 W. 28th St. Mazal Owner LLC v. Citiscape Bldrs. Group Inc., 2019 NY Slip Op. 08281, holding that whether a party that did not sign an arbitration agreement was bound by the agreement was a question for the court, not the... Read more »

Posted: November 24, 2019

Counsel Sanctioned for Bringing Frivolous Action

On November 13, 2019, Justice Garguillo of the Suffolk County Commercial Division issued a decision in Doscher v. Meyer, 2019 NY Slip Op. 08171, sanctioning a litigant for bringing a frivolous action, explaining: We agree with the Supreme Court’s determination granting those branches of the respective motions of the Emerson defendants and the Greenberg Traurig... Read more »

Posted: November 23, 2019

Derivative Claims Allowed to go Forward; Demand Futility was Properly Alleged

On November 13, 2019, the Second Department issued a decision in Guzman v. Kordonsky, 2019 NY Slip Op. 08176, allowing derivative claims to go forward based on adequate allegations of demand futility, explaining: [W]e agree with the Supreme Court’s denial of the Board members’ motion pursuant to CPLR 3211(a) and Business Corporation Law § 626(c)... Read more »

Posted: November 22, 2019

Court Should Have Granted Source Code Attorneys’ Eyes Only Protection

On November 12, 2019, the First Department issued a decision in BEC Capital, LLC v. Bistrovic, 2019 NY Slip Op. 08144, holding that a court should have granted source code attorneys’ eyes only protection, explaining: The production of defendants’ source code, which is a trade secret, should have been ordered to be produced for “attorneys... Read more »