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Posted: February 28, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerPromissory Note and Amendments Violated Criminal Usury Statute
On January 21, 2025, Justice Margaret A. Chan issued a Decision and Order in JADR Consulting Group Pty Ltd. v. Ault Alliance, Inc., Index No. 650537/2024, denying plaintiff’s motion for summary judgment in lieu of complaint based on a promissory note and various amendments and granting defendants’ cross-motion to dismiss. The Court explained: Read More
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Posted: February 26, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerRes Judicata Barred Claims Against Defendant Based On Privity
On January 22, 2025, Justice Nancy M. Bannon issued a Decision and Order in Cantor Fitzgerald & Co. v. PEI Global Partners Holdings LLC, Index No. 651268/2024, granting defendant’s motion to dismiss on the grounds the action was barred by res judicata based on prior FINRA arbitrations. Plaintiff had commenced separate arbitrations against four prior employees who founded defendant PEI Global Partners Holdings LLC, and a fifth arbitration against PEI Global Partners LLC, a broker-dealer wholly owned by the defendant. Although Defendant could not be made a party to the prior arbitrations as it was not a FINRA member and had no agreement to arbitrate before FINRA, the Court explained: Read More
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Posted: February 24, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerAdministrative Board Of Courts Seeking Public Comment On Proposal To Amend Commercial Division Rule 11
The Administrative Board of Courts is seeking public comment on a proposal recommended by the Commercial Division Advisory Council to Amend Rule 11 of the Rules of the Commercial Division Supreme Court to require parties to automatically exchange certain delineated categories of discovery at the outset of any litigation pending in the Commercial Division. Inter alia, the proposal would require the following initial disclosures: Read More
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Posted: February 21, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Holds That Reliance On Advice Of Counsel In A Public Press Release Waives Attorney-Client Privilege
On December 9, 2024, Justice Andrew Borrok issued an order holding that a judgment debtor’s public denial of fraud allegations in a press release “based on and in reliance on advice received from outside counsel’s . . . investigation” waived its ability to assert attorney-client privilege over the investigation. The order in Altium Growth Fund, L.P., et al., v. Tingo Group, Inc., Index No. 651910/2023, resulted from motions made after the debtor’s counsel, Greenberg Traurig, LLP, refused to answer certain questions at a deposition based on an assertion of the attorney-client privilege. The Court explained: Read More
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Posted: February 19, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Orders Production Of Documents From Party Regardless Of The “Capacity” In Which The Party Acted
On December 4, 2024, Justice Joel M. Cohen granted in part a motion to compel the production of documents in a defendant’s possession regardless of whether the defendant possessed them in a “personal” capacity or from acting as a trustee. In Conca Tekiner Chelsea, et al., v. Yasemin Tekiner, et al., Index No. 154224/2023, Defendant Yasemin Tekiner withheld certain documents and communications on the basis that she sent, received, drafted or executed the documents in a personal capacity rather than while acting as a trustee. The Court ordered production of the documents. It explained: Read More
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Posted: February 14, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerLaw Of The Case Applies To Privies, But Only As To Issues Resolved By Prior Decision
In an order dated December 23, 2024, Justice Andrew Borrok applied the law of the case doctrine in declining to dismiss a counterclaim for breach of contract. The case is JDS Construction Group LLC v. Copper Services, LLC, Index No. 56912/2020. Read More
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Posted: February 12, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Greatly Reduces Amount Sought As Condition To Vacating Default
On December 31, 2024, Justice Andrea Masley awarded less than 15% of the amount sought by plaintiffs as the amount for defendants to pay as a condition to excusing their default. The case is Universal Investment v. Bakrie Telecom Pte, Ltd., Index No. 652890/2014. Read More
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Posted: February 10, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerAttachment Of Foreign Energy Company Assets Granted
On December 20, 2024 Justice Joel Cohen granted an order of attachment against a foreign energy company under CPLR § 6205 and the Foreign Sovereign Immunities Act (“FSIA”). The case is Mistyrise International Limited v. Corporacion Electrica Nacional S.A., Index No. 655219/2021. Read More
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Posted: February 5, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCommercial Division Rules Amended to Require Suits Seeking Equitable or Declaratory Relief to Meet Monetary Threshold
On January 28, 2025, the Chief Administrative Judge of the Courts signed an administrative order amending the criteria for Commercial Division cases and requiring cases seeking equitable or declaratory relief to also satisfy the monetary threshold (in Manhattan, $500,000) to be in the Commercial Division. Under the prior version of this rule, the monetary threshold did not have to be met for cases seeking only equitable or declaratory relief, and so the only requirement for this type of case to qualify for the Commercial Division was that it was a commercial case (as described in the enumerated list of commercial cases in the Commercial Division Rules). But under the amended rule, which becomes effective March 31, 2025, cases seeking equitable or declaratory relief are no longer exempted from the monetary threshold. And to determine whether this threshold is met, the court will look at the "value of the object of the action," which will be determined by the "value of the suit's intended benefit, the value of the right being protected, or the value of the injury being averted, whichever is greatest." Read More
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Posted: January 31, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Dismisses Negligent Misrepresentation Case After Trial Because Defendant Did Not Have A Duty To Vet Bank
On December 23, 2024, Justice Melissa A. Crane dismissed Plaintiff’s remaining claim for negligent misrepresentation in a Decision After Bench Trial in ERA Capital L.P. v. Soleil Chartered Bank, Index No. 651984/2019. The dispute arose from a failed letter of credit ("LC") transaction that involved plaintiff ERA Capital L.P. ("ERA") and defendants Soleil Chartered Bank (individually, "SCB"), Soleil Capitale Corporation (individually "SCC," but together with SCB, "Soleil"), and Regions Bank ("Regions"). ERA alleges that Regions, who merely "advised" on the LCs, failed to investigate Soleil. Instead, according to plaintiff, Regions negligently told plaintiff that Soleil was "good" to be the LC's issuer, even after Regions received information that plaintiff claims should have led it to suspect that Soleil would issue LCs with no intention of making good on them. Read More
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Posted: January 29, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Conditionally Grants Motion For Contempt For Failure To Respond To Post-Judgment Discovery
On December 21, 2024, Justice Andrea Masley issued a Decision and Order in Picken v. RN Realty, LLC, Index No. 653313/2014, conditionally granting plaintiffs’ motion for contempt. Following a jury trial, plaintiffs were awarded $2,127,840.44 in damages, which defendant failed to satisfy. Plaintiffs then served information subpoenas with restraining notices and subpoenas for depositions, to which defendant failed to respond. Plaintiffs moved for contempt. In ruling, the Court explained: Read More
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Posted: January 27, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Grants Motion To Consolidate Cases For Trial
On December 19, 2024, Justice Joel M. Cohen issued a Decision and Order in Jobar Holding Corp. v. Halio, Index No. 655689/2017, granting the plaintiff’s motion to consolidate her case with a case brought by the same plaintiffs concerning the same series of transactions against her son, David Halio. The Court explained: Read More
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Posted: January 24, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Compels Collection Of Discovery From Bank’s In-House Counsel Involved In Factual Investigation
On December 21, 2024, Justice Andrea Masley granted a motion to compel a Filipino bank to collect and search documents from one of its in-house counsel despite the bank’s claim that the information possessed by its lawyer would be privileged. In Bangladesh Bank v. Rizal Commercial Banking Corporation, et al., Index No. 652051/2024, the plaintiff sought to compel RCBC, which is based in the Philippines, to collect and search documents held by one of its in-house lawyers who was involved in factual investigation relevant to the case. The Court granted the motion. It explained: Read More
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Posted: January 22, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Excuses Ten-Month Delay In Answering Crossclaims Despite Law Office Failure
On December 19, 2024, Justice Joel M. Cohen denied a motion for an order entering default against a crossclaim-defendant and allowed that party an extension of time to answer despite a ten-month delay in responding to the pleading. In Mehrnaz Nancy Homapour, et al., v. 3M Properties, LLC, et al., Index No. 653795/2015, three defendants filed crossclaims against a fellow defendant, Jacob Harounian, as part of an amended answer. Harounian’s attorney did not notice the addition of this crossclaim because the remainder of the answer was nearly identical to prior answers filed by the three parties. After ten months had elapsed, the crossclaim-plaintiffs moved for default. Read More
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Posted: January 17, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerSummary Judgment Granted To Third Party Defendant In Real Estate Development Action
On December 4, 2024, Justice Joel M. Cohen granted a third-party defendant’s motion to dismiss claims against it brought by the sponsor of a Manhattan real estate development. The case is Board of Managers of the 443 Greenwich Street Condominium v. SGN 443 Greenwich Street Owner LLC, Index No. 656934/2021 Read More
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Posted: January 15, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerSummary Judgment Granted Plaintiff For Fees Due On Contract To Provide Investment Banking Services
On December 2, 2024, Justice Andrew Borrok granted summary judgment to plaintiff in a contractual dispute seeking payment of fees for services in brokering a loan. The case is Manorhaven Capital LLC v. Marc J. Bern & Partners, LLP, Index No. 654869/2022. Read More
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Posted: January 13, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerSpecial Referee’s Report Vacated In Part In Dispute Over Nazi-Looted Art
On December 4, 2024, Justice Joel M. Cohen granted in part plaintiff’s motion to vacate a Special Referee’s report. The case is Gowen v. Helly Nahmad Gallery, Inc., Index No. 650646/2014. The case concerned a ten-year-old dispute in which the heirs to the owner of a painting by Amedeo Modigliani, which had been stolen by the Nazi regime, sought to recover it from an art dealer who had later acquired it at auction. Read More
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Posted: January 3, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Dismisses Breach Of Contract Claim With Prejudice
On December 3, 2024, Justice Melissa A. Crane granted defendant’s motion to dismiss in Parque Solar Don Jose S.A. de C.V. v. Enel S.P.A., Index No. 656415/2024. The action concerned an effort to enforce a guaranty plaintiff and defendant entered into in connection with the construction of renewable energy plants in Mexico. The guaranty provided that it would expire at the end of a “Defects Notification Period” of 21 months from another defined date. The Court explained: Read More
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Posted: December 30, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Grants, In Part, Motion To Compel Purportedly Privileged Documents
On November 29, 2024, Justice Joel M. Cohen issued a Decision and Order in ARC NYWWPJV001, LLC v. WWP JV LLC, Index No. 654977/2024, granting a motion, in part, to compel production of purportedly privileged documents. Defendant had inadvertently produced two allegedly privileged documents and sought to claw them back. Plaintiff and Counterclaim Defendant moved to require Defendant to “‘produce’ (again)” these documents. The Court granted the motion as to one document and denied it as to the other. The Court explained: Read More
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Posted: December 27, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Finds Fraudulent Inducement Claim Insufficient To Avoid Compliance With Arbitration Clause
On December 4, 2024, Justice Joel M. Cohen granted a motion to compel arbitration against a plaintiff despite the plaintiff’s claim that it had been fraudulently induced to enter into the contract containing the arbitration clause. In Selim 730 LLC v. SHVO 730 LLC, et al., Index No. 653193/2024, the plaintiff asserted that the defendants induced it to enter into a 2021 settlement agreement by deliberately misstating the amount of certain ownership interests of a joint investment vehicle that was the subject of a dispute between them. After the plaintiff sued, the defendants submitted to the Court an agreement in which the plaintiff released all its claims concerning the settlement agreement and agreed to arbitrate any claims arising out of it. Although the plaintiff contended that it was fraudulently induced to enter the agreement, the Court granted the defendants’ motion to compel arbitration. It explained: Read More
