Monthly Archives: December 2019

Posted: December 31, 2019

Claim for Breach of Covenant of Good Faith and Fair Dealing Dismissed as Duplicative of Breach of Contract Claim

On December 13, 2019, Justice Sherwood of the New York County Division issued a decision in Citigroup Global Mkts. Inc. v. SCIP Capital Mgt., LLC, 2019 NY Slip Op. 33633(U), dismissing a claim for breach of the covenant of good faith and fair dealing as duplicative of a breach of contract claim, explaining: It is... Read more »

Posted: December 30, 2019

Where Parties “Clearly Intended to Cover a Risk,” Inadvertently Naming Incorrect Entity As Additional Insured Does Not Negate Coverage

Posted by Bradley J. Nash, Litigation Partner On November 20, 2019, Judge Ramos of the SDNY issued a decision in United Specialty Ins. Co. v. Lux Maintenance & Ren. Corp., Case No. 18-cv-3083 (ER), holding that property owners were entitled to additional insured coverage under a subcontractor’s CGL policy even though the subcontractor agreement misidentified... Read more »

Posted: December 29, 2019

Documents Prepared for Uses Other Than Litigation Cannot be Withheld for Production Even if They Also Were Prepared in Anticipation of Litigation

On December 20, 2019, the Fourth Department issued a decision in John Mezzalingua Assoc., LLC v. Travelers Indem. Co., 2019 NY Slip Op. 09157, holding that documents prepared for uses other than litigation cannot be withheld from production even though they also were prepared for litigation, explaining: CPLR 3101 establishes three categories of protected materials:... Read more »

Posted: December 27, 2019

That Loan Was Made from the Proceeds of Illegal Gambling Does Not Make Loan Contract Unenforceable

On December 19, 2019, the Court of Appeals issued a decision in Centi v. McGillin, 2019 NY Slip Op. 09058, holding that a loan contract was enforceable even though the loan was made from the proceeds of illegal gambling, explaining: Given our strong public policy favoring freedom of contract, agreements are generally enforceable by their... Read more »

Posted: December 26, 2019

Court Analyzes Successor Liability Under the De Facto Merger Doctrine

On December 13, 2019, Justice Emerson of the Suffolk County Commercial Division issued a decision in Marcum LLP v. Fazio, Mannuzza, Roche, Tankel, Lapilusa, LLC, 2019 NY Slip Op. 52010(U), analyzing successor liability under the de facto merger doctrine: The plaintiff seeks leave to amend the complaint to add PKF O’Connor Davies, LLP, f/k/a O’Connor... Read more »

Posted: December 25, 2019

Opportunity to Comment on Proposed Change to Commercial Division Rules

The Office of Court Administration has asked for public comment on a proposed amendment to Commercial Division Rule 6 to “to require legal memoranda to include hyperlinks to NYSCEF docket entries when those documents are cited and to allow judges discretion in determining whether to require hyperlinking for cases, statutes, and rules to legal database... Read more »

Posted: December 24, 2019

Interlocutory Arbitral Awards Not Subject to Judicial Review

On December 12, 2019, the First Department issued a decision in Matter of Capital Enters. Co. v. Dworman, 2019 NY Slip Op. 08936, holding that interlocutory arbitral awards are not subject to judicial review, explaining: The arbitrator’s orders were issued in connection with the sale process that followed the issuance of a partial final arbitral... Read more »

Posted: December 23, 2019

Trial Court Properly Declined to Decide Issue of Reasonable Reliance on Summary Judgment

On December 17, 2019, the First Department issued a decision in Norddeutsche Landesbank Girozentrale v. Tilton, 2019 NY Slip Op. 08965, holding that a trial court properly declined to decide the question of a plaintiff’s reasonable reliance on summary judgment, explaining: Summary judgment is precluded by issues of fact as to whether plaintiffs’ losses were... Read more »