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 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 ยง 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 »

Posted: November 21, 2019

Open Repudiation Toll Doctrine Inapplicable to Claim for Money Damages for a Breach of Fiduciary Duty

On November 14, 2019, the First Department issued a decision in Matter of Yin Shin Leung Charitable Found. v. Seng, 2019 NY Slip Op. 08261, holding that the open repudiation toll doctrine was inapplicable to a claim for money damages for a breach of fiduciary duty, explaining: The breach of fiduciary duty claims are barred... Read more »