Monthly Archives: January 2020

Posted: January 31, 2020

Upcoming Arguments in the Court of Appeals in February 2020

Upcoming arguments in the Court of Appeals in February 2020 that may be of interest to commercial litigators: Plavin v Group Health Insurance, CQ 19-02 (to be argued Tuesday, February 11) (“Consumer Protection -Deceptive Acts and Practices–Whether defendant insurance company’s marketing materials to prospective enrollees of group health insurance plan violated General Business Law §§... Read more »

Posted: January 30, 2020

Statute of Frauds Does Not Apply to Oral Contract to Create a Joint Venture

On January 17, 2020, Justice Cohen of the New York County Commercial Division issued a decision in Lentini v. William Capital Assoc., Inc., 2020 NY Slip Op. 30145(U), holding that the statute of frauds does not apply to an oral agreement to create a joint venture, explaining: Defendants have not conclusively established their defenses as... Read more »

Posted: January 27, 2020

Contrary to Recent First Department Case Law, Federal Court Rules that Attorneys’ Fees Are Not Recoverable Consequential Damages on Claim for Insurers’ Breach of Covenant of Good Faith and Fair Dealing

Posted by Bradley J. Nash, Litigation Partner On December 30, 2019, Judge Briccetti of the SDNY issued a decision in Ruiz v. Liberty Mut. Fire Ins. Co., 19 CV 4399 (VB), denying an insurer’s motion to dismiss an insured’s claim for breach of the covenant of good faith and fair dealing, but ruling (contrary to... Read more »

Posted: January 26, 2020

Bare Assertion of Law Office Failure Insufficient to Justify Vacating Default Judgment

On January 15, 2020, the Second Department issued a decision in Deutsche Bank Natl. Trust Co. v. Fishbein, 2020 NY Slip Op. 00260, holding that the bare assertion of law office failure was an insufficient basis for vacating a default judgment, explaining: In order to vacate a default in appearing at a scheduled court conference,... Read more »

Posted: January 25, 2020

Plaintiff Liable for Damages Resulting from Breach of Contractual Notice and Cure Provision

On January 13, 2020, Justice Emerson of the Suffolk County Commercial Division issued a decision in Misty Cleaning Serv. Inc. v. Independent Group Home Living Program, Inc., 2020 NY Slip Op. 50032(U), holding a plaintiff liable for damages for breaching a contractual notice and cure provision, explaining: Section 4.2 of the parties’ agreement required Independent... Read more »

Posted: January 24, 2020

Discovery Sanction Reversed as Excessive

On January 14, 2020, the First Department issued a decision in Beach v. Touradji Capital Mgt., LP, 2020 NY Slip Op. 00230, reversing a discovery sanction as excessive, explaining: [A]ppellants contend that they committed no discovery violations, but even if they did, the court’s preclusion orders constituted an excessive sanction that deprived them of a... Read more »

Posted: January 23, 2020

Promissory Estoppel Claim Dismissed for Failure Adequately to Allege a Promise and Reliance

On January 14, 2020, Justice Borrok of the New York County Commercial Division issued a decision in 32 W. 39th Midtown Props. v. Zee Co. Apparel Corp., 2020 NY Slip Op. 30129(U), dismissing a promissory estoppel claim for failure adequately to allege a promise or reliance, explaining: The elements of a claim of promissory estoppel... Read more »