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Posted: April 21, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Denies Motion To Dismiss Breach of Contract Counterclaim on Third-Party Beneficiary Theory
On January 30, 2025, Justice Andrea Masley denied plaintiff’s motion to dismiss defendant’s counterclaim for breach of contract. Canara Bank, London Branch v. MVP Group International, Inc., Index No. 654602/2023. The Court explained: Read More
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Posted: April 18, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerReliance On A Party’s Statement That An Action Had Been “Resolved” Sufficed To Excuse Default
On January 31, 2025, Justice Joel M. Cohen granted a motion to vacate default where the defaulting party asserted that it had relied on a statement made by another party that the action had been “resolved in its favor.” In Monex Canada, Inc. v. Bank of America, N.A., et al., Index No. 655076/2023, the plaintiff, Monex Canada, Inc., obtained a default judgment against Defendant Auto Cargo International LLC. Auto Cargo moved to vacate the default, arguing that the Court lacked personal jurisdiction and that it had a reasonable excuse and meritorious defense. The Court agreed that Auto Cargo had a reasonable excuse, explaining: Read More
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Posted: April 16, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Grants Motion To Substitute Successor Entity Despite Objections About Its Impact On Ongoing Discovery
On January 31, 2025, Justice Andrew Borrok granted a motion to substitute the plaintiff entities for their successors despite objections from the defendant concerning the substitution’s impact on ongoing discovery. In NG Crown 20 E. 46th Street LLC, et al. v. 18-20/22 East 46th Street LLC, Index No. 656817/2022, the Court overruled the defendant’s objections, explaining: Read More
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Posted: April 14, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Grants Motion To Strike Interrogatory Responses Concerning Calculations of Damages Foreclosed By Prior Court Rulings
On March 3, 2025, Justice Andrea Masley granted, in part, a motion to strike interrogatory responses that included calculations of damages foreclosed by prior court rulings. In Richard Hobish, et al., v. AXA Equitable life Insurance Company, Index No. 650315/2017, Defendant AXA Equitable Life Insurance Company asked the Court to strike the plaintiff’s damages calculations on the grounds that they were unsupported by the allegations and prior Court rulings, affirmed by the Appellate Division, had rejected the plaintiff’s theories of consequential and restitutionary damages. The Court granted the motion in part, explaining: Read More
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Posted: April 11, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerDuty To Perform Actions Not Required by Contract Will Not Be Imputed To Save Contract Claim From Dismissal
On January 30, 2025, Justice Meilssa A. Crane granted defendants’ motion to dismiss a contract claim that alleged breach through defendants’ failure to prepare a revised preliminary valuation that the contract did not require. The case is Gurney-Goldman v. Solil Management, LLC et al., Index No. 655549/2023. Read More
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Posted: April 9, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerTemporary Restraining Order Granted Where Movant Established Prima Facie Entitlement To Preliminary Injunction Based On Conduct Violating Earlier Permanent Injunction
On March 11, 2025, Justice Andrew Borrok entered a temporary restraining order directing plaintiff Go New York Tours Inc. (“GONY”) to comply with certain asserted contractual obligations pending hearing and determination of a preliminary injunction application brought by defendant Vector Media, LLC (“Vector Media”). The case is Go New York Tours Inc. v. Vector Media, LLC, Index No. 151029/2025. Read More
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Posted: April 7, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerFraudulent Inducement Insufficiently Pleaded Where Alleged Misrepresentation Is Limited To Intent To Perform Obligations That Underlie Accompanying Contract Claim
On February 28, 2025, in Martha Stewart Living Omnimedia, LP v. Snow Joe LLC Index No. 653155/2023, Justice Andrea Masley dismissed a counterclaim and affirmative defense alleging fraudulent inducement asserted by Snow Joe LLC (“Snow Joe”), a licensee of Martha Stewart Living Omnimedia, LP (the “Licensor”), for failure to allege misrepresentations of present fact. Read More
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Posted: April 4, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerContract Claim Survives Dismissal Standard Even In Absence of Damages
On March 6, 2025, Justice Andrea Masley of the New York County Commercial Division issued a decision in Penske v. National Holding Corp., Index No. 655002/2022, holding that defendants' claim for breach of contract satisfied the dismissal standard even in the absence of damages, explaining: Read More
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Posted: April 2, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerRescission of Contract Available Against Defendant Who Made False Representations to Induce Plaintiffs to Enter Into Contract
On February 28, 2025, Justice Andrew Borrok of the New York County Commercial Division issued a decision in Freedman v. Rakosi, Index No. 655608/2023, denying defendants' motion to dismiss plaintiffs' rescission claim, explaining: Read More
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Posted: March 28, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerMotion To Dismiss Claims For Advancement And Indemnification Denied
On March 11, 2025, Justice Margaret A. Chan denied defendants’ motion to dismiss claims for advancement and indemnification. White Oak Global Advisors, LLC v. Scopetta, Index No. 652992/2024. The Court explained: Read More
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Posted: March 26, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Denies Motion To Certify An Issue Class
On February 26, 2025, Justice Joel M. Cohen denied plaintiffs’ motion for class certification. Stafford v. A&E Real Estate Holdings, LLC, Index No. 655500/2016. Plaintiffs alleged that defendants evaded New York City’s rent regulations by failing to properly register their rent-regulated apartments, using impermissible preferential rents, and deregulating (or increasing the legal regulated rent of) certain units based on underperformed and/or nonqualifying Individual Apartment Improvements (“IAIs”). Plaintiffs moved to certify an issue class limited to resolving the question “whether Defendants engaged in a methodical attempt to inflate rents.” In denying the motion, the Court explained: Read More
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Posted: March 24, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerWholesale Failure To Pay Earned Commissions Does Not Constitute Violation Of New York Labor Law § 193
On January 23, 2025, Justice Melissa Crane granted defendants’ motion to dismiss plaintiff’s claim for unpaid commissions pursuant to New York Labor Law § 193. Lichter v. Mass. Mut. Life Ins. Co., Index No. 651558/2022. Plaintiff claimed that defendants withheld $125,000 in commissions that he was owed, in violation of New York Labor Law § 193, which “prohibits an employer from making any deduction from an employee’s wage unless permitted by law or authorized by the employees for certain purposes.” In dismissing the claim, the Court explained: Read More
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Posted: March 21, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Quashes Subpoena Based On Two-Year Delay In Seeking Disclosure From A Third Party
On January 28, 2025, Justice Nancy M. Bannon granted a motion to quash a third-party subpoena seeking deposition testimony and the production of documents on the basis that the subpoenaing party had waited too long to seek the disclosures. In Arlus Owners LLC, et al. v. 829 Mad. Ave. LLC, et al., Index No. 653842/2022, the defendant served the subpoena on a real estate broker just before the deadline for completing discovery and filing the note of issue and certificate of readiness. The Court granted the motion to quash, explaining: Read More
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Posted: March 19, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Faces “Catch-22 Problem” Of Whether To Order Production Of Privileged Documents To Plaintiff Claiming Legal Malpractice Where Disputes Remained Over Whether Plaintiff Was Actually Attorneys’ Client
On January 31, 2025, Justice Melissa A. Crane ordered in camera review of certain purportedly privileged documents in a legal malpractice case, noting that conflicting contentions over whether the plaintiff was ever actually a client of defendants presented a “catch-22 problem.” In Genesis Reoc Company LLC, et al. v. Stuart D. Poppel, et al., Index No. 156733/2017, the plaintiff alleged that the defendants were their former attorneys and sued for malpractice. The attorneys had represented other parties in the underlying transactions at issue, and during discovery, they withheld communications with those clients on the basis of privilege. The attorneys also contended that the plaintiff had never actually been a client of theirs. The Court ordered in camera review to address the threshold question of whether an attorney-client relationship existed, explaining: Read More
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Posted: March 17, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerPartnership Agreement Requiring Notice Of Breach Be Given “By The Partnership” Means Notice Must Be Styled As Coming From The Partnership Or On Its Behalf, Not Simply From A Limited Partner
On February 20, 2025, the Appellate Division, First Department, unanimously held that a limited partnership agreement requiring notice of a breach be given “by the Partnership” means the notice must be styled as actually coming from the Partnership or on its behalf, not merely from one of its limited partners. In Karoline Molberg, et al, v. Phoenix Cayman Ltd, et al., Case No. 2023-05964, a for-cause removal provision of the agreement required notice of any breach come “from the Partnership.” Plaintiff, a limited partner, sent a letter purporting to give notice of a breach to the general partner. The lower court denied a motion to dismiss made by the general partner on the basis that “multiple correspondences from limited partners” had noted the breach. The First Department disagreed and reversed. It explained: Read More
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Posted: March 14, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Orders In Camera Submission Of Assertedly Privileged Documents In Legal Malpractice Action To Resolve Threshold Question Of Attorney-Client Relationship
On January 31, 2025, Justice Melissa A. Crane resolved a motion to compel by directing in camera production of certain documents to inform a threshold inquiry as to whether or not plaintiffs and defendants had an attorney-client relationship. Genesis REOC, Company, LLC v. Poppel, Index No. 156733/2017. Read More
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Posted: March 12, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerAmendment To Assert Counterclaims Not Barred By Possible Application Of Res Judicata
On January 31, 2025, Justice Joel M. Cohen granted in part a motion to amend by a defendant/counterclaimant challenging the enforcement of a guarantee, finding that any argument that certain of the proposed counterclaims were barred by res judicata did not support denial of amendment. JG Group Holdings LLC v. Kahlon, Index No. 652196/2020. Read More
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Posted: March 10, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerFiduciary Status, Diversion Of Funds And Damages Sufficiently Established To Support Summary Judgement On Fiduciary Breach Claim
On January 23, 2025, Justice Andrew Borrok granted plaintiffs summary judgment as to liability on fiduciary breach, reserving the issue of damages. Seaton v. Babad, Index No. 654196/2021. Read More
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Posted: March 7, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerPre-Judgment Restraining Notice Issued Against Defendant Following Grant of Summary Judgment to Plaintiff
On January 31, 2025, Justice Joel M. Cohen of the New York County Commercial Division issued a decision in Fortress Credit Corp. v. Cohen, Index No. 651498/2024, issuing a pre-judgment restraining notice against, and ordering an enforcement deposition of, defendant following plaintiff's successful motion for summary judgment, explaining: Read More
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Posted: March 6, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerEmail Stating "Understood and Will Do" Not, as a Matter of Law, Waiver Under Contract
On January 21, 2025, Justice Margaret A. Chan of the New York County Commercial Division issued a decision in Newmark & Co. Real Estate, Inc. v. Wiesner Products Inc., Index No. 651896/2024, denying defendant's motion to dismiss based on documentary evidence and holding that, contrary to defendant's argument, an email from defendant stating "Understood and will do" in response to plaintiff's purported improper termination of an exclusive-brokerage agreement was not, as a matter of law, a waiver by defendant of strict compliance with the term and termination clauses of the agreement, explaining: Read More
