Monthly Archives: October 2020

Posted: October 31, 2020

CPLR 3215(c) Requires Only That Plaintiff Move for Default Within One Year, Not That a Default Judgment Be Entered Within One Year

On October 14, 2020, the Second Department issued a decision in Onewest Bank, FSB v. Kanapathipillai, 2020 NY Slip Op. 05764, holding that CPLR 3215(c) requires only that a plaintiff move for a default judgment within one year, not that a default judgment be entered within one year, explaining: The defendant contends that the plaintiff... Read more »

Posted: October 30, 2020

Malpractice Claim Against Appraiser Accrued When Plaintiff Ultimately Received Appraisal, Not on Earlier Date When Appraisal Was Given to Lender

On October 14, 2020, the Second Department issued a decision in ShareStates Invs., LLC v Creagh & Assoc., Inc., 2020 NY Slip Op. 05792, holding that a malpractice claim against an appraiser did not accrue when the appraiser issued the appraisal, but rather when the client received the appraisal, explaining: The three-year statute of limitations... Read more »

Posted: October 29, 2020

Contract Based on Exchange of E-Mails Valid Where Material Terms Included in the E-Mails

On October 15, 2020, the First Department issued a decision in Lembo v. Rosania, 2020 NY Slip Op. 05816, holding that a contract existed based on an exchange of e-mails even though non-material terms of the agreement were left for later negotiation, explaining: The court properly denied dismissal of plaintiff’s breach of contract claim. The... Read more »

Posted: October 29, 2020

Opportunity to Comment on Proposed Commercial Division Rule re: Remote Proceedings

The Office of Court Administration has asked for public comment on a proposed new Commercial Division rule regarding remote proceedings. The proposed new rule would provide: (1) If the requirements of paragraph (3) are met, the court may, with the consent of the parties, conduct an evidentiary hearing or a non-jury trial utilizing video technology.... Read more »

Posted: October 29, 2020

Insurer Had No Duty to Defend Complaint Alleging Intentional Assault Despite Conclusory Allegations of Negligence

Posted by Bradley J. Nash, Litigation Partner On August 20, 2020, the Fourth Department issued a decision in Scalzo v. Central Co-op. Ins. Co., 2020 NY Slip Op 04639, holding that an intentional assault was excluded from coverage under a liability policy, despite conclusory language in the complaint asserting a negligence claim in the alternative.... Read more »

Posted: October 28, 2020

Class Cert Denied in In Re Aluminum Warehousing Antitrust Litigation

In In re Aluminum Warehousing Antitrust Litigation (Direct Purchaser Plaintiffs), No. 14-cv-3116-PAE (S.D.N.Y.), United States District Judge Paul A. Engelmayer denied class certification based on the failure to plaintiffs’ expert to establish the predominance of common issues among the proposed class members regarding antitrust injury. Plaintiffs, described in the opinion as “First Level Purchasers” or... Read more »

Posted: October 28, 2020

Contract Void for Lack of Consideration

On October 13, 2020, the First Department issued a decision in Weisenfeld v. Iskander, 2020 NY Slip Op. 05710, holding that a contract was void for lack of consideration, explaining: The alleged agreement also fails for a lack of consideration. Plaintiff’s claim that her father told her that he would help locate other investors as... Read more »

Posted: October 27, 2020

Motion for Relief Under Article 76 Cannot be Made in an Earlier Action That Has Been Concluded

On September 23, 2020, Justice Masley of the New York County Commercial Division issued a decision in CPI Aerostructures, Inc. v. Air Indus. Group, 2020 NY Slip Op. 33249(U), holding that a motion for relief under Article 76 cannot be made in an earlier action that has been concluded, explaining: In the notice of motion... Read more »

Posted: October 26, 2020

North Carolina Judge Grants Summary Judgment to Restaurant Owners on Claim for COVID-19 Business Interruption Losses

Posted by Bradley J. Nash, Litigation Partner On October 7, 2020, North Carolina Superior Court Judge Orlando F. Hudson, Jr. handed down an important victory for policyholders seeking business interruption insurance for losses arising from closures relating to the COVID-19 pandemic.  In North State Deli, LLC v. The Cincinnati Ins. Co., Case No. 20-CVS-02569, Judge... Read more »

Posted: October 26, 2020

Court Issues Injunction, Enforcing Contract Term Providing that There Would be No Remedy At Law in the Event of Breach

On October 13, 2020, the First Department issued a decision in Vector Media, LLC v. Go New York Tours Inc., 2020 NY Slip Op. 05707, enforcing a contract term providing that there would be no remedy at law in the event of a breach, explaining: The court providently exercised its discretion in granting the preliminary... Read more »