Monthly Archives: February 2020

Posted: February 29, 2020

Merger Clause Defeats Fraudulent Inducement Claim

On February 6, 2020, Justice Schecter of the New York County Commercial Division issued a decision in Gottwald v. Sebert, 2020 NY Slip Op. 30347(U), holding that a merger clause defeated a fraudulent inducement claim, explaining: Kesha’s claim that she was fraudulently induced to enter into the KMI Agreement based on Gottwald’s promise to renegotiate... Read more »

Posted: February 28, 2020

Material Misrepresentation Justified Rescission of Agreement

On February 18, 2020, the First Department issued a decision in Sabby Healthcare Master Fund Ltd. v. Microbot Med. Inc., 2020 NY Slip Op. 01129, holding that material misrepresentations justified rescission of an agreement, explaining: The trial record indicates that plaintiffs, two affiliated private investment funds, rapidly negotiated the SPA essentially over the course of... Read more »

Posted: February 27, 2020

Firm Disqualified From Representation Because Some Members of Firm Would be Trial Witnesses

On February 11, 2020, the First Department issued a decision in Matter of Diet Drug Litig. v. Wyeth-Ayerst Labs., 2020 NY Slip Op. 00993, upholding the disqualification of a law firm because some of the firm’s members would be trial witnesses, explaining: The court correctly determined that provisions of the Rules of Professional Conduct applied... Read more »

Posted: February 26, 2020

Judge Garaufis Updates Individual Rules (Description of Changes Below)

Posted by Solomon N. Klein, Litigation Partner Judge Nicholas G. Garaufis has updated his Individual Rules. As a service to practitioners that are already familiar with the Judge’s rules, below are the changes of note. ♦ Only counsel of record familiar with the case may appear (no per diem counsel permitted). (Rule III.) ♦ Sentencing... Read more »

Posted: February 26, 2020

Dismissal Based on Excluded Evidence Insufficient Basis for Malicious Prosecution Claim

On February 11, 2020, Justice Borrok of the New York County Commercial Division issued a decision in Wey v. NASDAQ, Inc., 2020 NY Slip Op. 50210(U), holding that a dismissal based on excluded evidence was an insufficient basis for a malicious prosecution claim, explaining: The elements of a claim for malicious prosecution are (1) the... Read more »

Posted: February 25, 2020

CGL Policy’s IP Exclusion Bars Defense Coverage Despite Absence of “Direct Claims for IP Relief” in Complaint

On February 7, 2020, the Second Circuit issued a decision in Lepore v. Hartford Fire Ins. Co., Case No. 19‐778‐cv, holding that a CGL policy exclusion for any suit alleging “an infringement or violation of any intellectual property right” was triggered even though the underlying complaint did not contain a direct IP-infringement claim. The Second... Read more »

Posted: February 25, 2020

Plaintiff Not Entitled to Summary Judgment on Guaranty When it Could Not Be Authenticated by a Disinterested Witness

On February 13, 2020, the First Department issued a decision in Galpern v. Air Chefs, L.L.C., 2020 NY Slip Op. 01021, holding that a plaintiff was not entitled to summary judgment on a guaranty because it could not be authenticated by a disinterested witness, explaining: As for defendants’ arguments under the dead man’s statute, plaintiff... Read more »

Posted: February 24, 2020

Transcripts and Videos of Arguments in the Court of Appeals for February 2020 Now Available

On January 31, 2020, we noted a case of interest from the oral arguments before the Court of Appeals in February 2020: Plavin v Group Health Insurance, CQ 19-02 (Argued on 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... Read more »

Posted: February 23, 2020

Court Denies 3211(a)(1) Motion to Dismiss Based on E-mails

On February 4, 2020, Justice Cohen of the New York County Commercial Division issued a decision in Fosshage v. Mitta Water Holdings, LLC, 2020 NY Slip Op. 30296(U), denying a 3211(a)(1) motion based on e-mails, explaining: The Stockholder defendants argue that the complaint should be dismissed based upon unambiguous email evidence. According to the Stockholder... Read more »

Posted: February 22, 2020

Plaintiff Sufficiently Alleges Jurisdiction Over Foreign Defendant That Did Not Travel to New York

On January 6, 2020, Justice Schecter of the New York County Commercial Division issued a decision in My Size, Inc. v. North Empire LLC, 2020 NY Slip Op. 30276(U), holding that a plaintiff had sufficiently alleged jurisdiction over a defendant that had not traveled to New York, explaining: While conceding that this court lacks general... Read more »