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Posted: October 21, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerSummary Judgment Denied To Plaintiffs, Granted In Part To One Defendant, In Action On Alleged Loan
On August 27, 2024, Justice Andrew Borrok denied summary judgment to plaintiffs and granted it in part to one defendant in an action to collect on an alleged $9 million loan. The case is Elie Tahari v. Shelly Narkis, Index No. 650671/2021. Read More
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Posted: October 11, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Grants Motion For Summary Judgment In Lieu of Complaint
On September 6, 2024, Justice Melissa A. Crane granted, in part, plaintiff’s motion for summary judgment in lieu of complaint. In Oxford Finance LLC v. Nesian Jean Makesh, Index No. 651051/2024, plaintiff sought judgment against defendants under a Limited Payment Guaranty and Surety Agreement. The Court explained: Read More
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Posted: October 9, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Reduces Attorneys’ Fee Request 50% Due To Block Billing
On September 5, 2024, Justice Melissa A. Crane declined to award plaintiff the full amount of requested attorneys’ fees and reduced the requested amount by 50%. In EXRP 14 Holdings LLC v. LS-15 Ave LLC, Index No. 652698/2022, the Court had previously granted plaintiff’s motion for sanctions, ordered defendant to reimburse plaintiff for the reasonable costs of making a prior motion, and directed plaintiff to submit supporting documentation for its fee request. In making its 50% reduction, the Court explained: Read More
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Posted: October 7, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Denies Motions For Summary Judgment In Legal Malpractice Action
On September 6, 2024, Justice Margaret A. Chan issued a Decision and Order in FTF Lending, LLC v. Mavrides, Moyal, Packman & Sadkin, LLP, Index No. 153620, denying both plaintiff’s and defendants’ motions for summary judgment. Plaintiff asserted claims against defendants for legal malpractice arising out of defendants’ representation of plaintiff in a loan transaction. The Court explained: Read More
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Posted: October 4, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Grants Order Of Disclosure Against Non-Party Financial Institutions Holding Garnished Accounts
On August 30, 2024, Justice Margaret A. Chan granted plaintiffs’ motion for an order of disclosure against Goldman Sachs, UBS Financial Services, and Santander Bank, requiring them to produce documents relating to a defendant’s transaction history in accounts maintained with those institutions. In Ativos Especiais II, et al., v. Kenneth Steven Pope, Index No. 655972/2023, the plaintiffs sought disclosure concerning certain garnished accounts of the defendant. The Court concluded that the plaintiffs were entitled to that information. It explained: Read More
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Posted: October 2, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerMotion To Compel Compliance With Post-Judgment Subpoena Duces Tecum Granted Against Former Law Firm Retained By Committee Of Independent Directors
On August 23, 2024, Justice Andrew Borrok granted a judgment creditor’s post-judgment subpoena deuces tecum against the law firm, Steptoe LLP. In Altium Growth Fund, L.P., et al., v. Tingo Group Inc., Index No. 651910/2023, Steptoe LLP was retained by the Committee of Independent Directors of the judgment debtor to investigate claims of fraud by the company and its CEO. Steptoe LLP did not directly represent the judgment debtor, but the firm objected to the production of documents on the grounds of privilege. The Court granted the motion to compel, finding that no privilege attached to the sought-after documents and no opposition had been filed. It explained: Read More
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Posted: September 30, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Denies “Preliminary Injunction” For Specific Performance Of Purchase Agreement
On August 20, 2024, Justice Margaret A. Chan denied a motion for preliminary injunction seeking specific performance of a purchase agreement brought by two investment funds against several affiliated managers and holding companies. In BR Fund IV Acq Inv, LLC, et al., v. Brightwood Capital Fund III-Institutional, LP, Index No. 651756/2024, the parties entered into an agreement whereby the plaintiffs would purchase an interest in the investment funds’ limited partners by September 14, 2023. The deal never closed because of alleged breaches by the defendants. The plaintiffs then moved for a “preliminary injunction” for specific performance of the agreement, compelling defendants to close the transaction. The Court concluded that the plaintiffs’ motion more-accurately sought a mandatory injunction because it sought the case’s ultimate relief, requiring a higher standard of proof. The Court then denied the motion. It explained: Read More
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Posted: September 27, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerMotion To Preclude Reports And Testimony of Experts Denied; Limitations On Trial Testimony Recognized
On August 21, 2024, Justice Nancy M. Bannon denied defendants’ motion to preclude the reports and trial testimony of plaintiff’s experts, while imposing certain limitations on the expert’s trial testimony, in a contractual dispute concerning environmental remediation. The case is 2497 Realty Corp. v. Fuertes, Index No. 151947/2014. Read More
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Posted: September 25, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCounterclaim Alleging Tortious Interference With Business Relationships Dismissed
On September 4, 2024, Justice Margaret A. Chan dismissed a counterclaim by defendant Brookline, LLC d/b/a Lilogy (Lilogy) for tortious interference with business relations. The case is BT Supplies West, Inc. v. Brookline, LLC, Index No. 651364/2023. Schlam Stone & Dolan LLP represented plaintiff BT Supplies West, Inc. (BT Supplies) in the matter. Read More
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Posted: September 23, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerClaims For Wrongful Seizure Of Maritime Vessel Overseas Dismissed For Want Of Personal Jurisdiction
On September 3, 2024, Justice Joel M. Cohen granted defendants’ motion to dismiss, for want of personal jurisdiction, an action seeking damages for the allegedly wrongful overseas seizure of plaintiff’s maritime vessel, the Auzonia. The case is Amelia Maritime Group Ltd. v. Integr8 Fuels America LLC et al., Index No. 152882/2024. Read More
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Posted: September 20, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerComplaint Stricken After Plaintiff Repeatedly Failed to Appear for Deposition
On August 22, 2024, Justice Margaret A. Chan of the New York County Commercial Division issued a decision in O'Rourke v. Hammerstein Ballroom, Index No. 161427/2019, striking the complaint and dismissing plaintiff's case after plaintiff repeatedly failed to appear for his court-ordered deposition, explaining: Read More
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Posted: September 18, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerContract Claim Fails Because Plaintiff Was Not Party to Contract and Because Plaintiff Failed to Allege Underlying Facts Showing Breach
On August 21, 2024, Justice Margaret A. Chan of the New York County Commercial Division issued a decision in Tandym Group, LLC v. Mission Staffing Inc., Index No. 655839/2023, granting defendants' motion to dismiss claims for breach of a purported nonsolicitation and confidentiality agreement on the grounds that (i) plaintiff was not a party to the purported agreement, and (ii) plaintiff failed to allege "which, if any, clients were purportedly solicited or interfered with by defendants," or "what, if any, confidential information was misappropriated," explaining: Read More
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Posted: September 13, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Denies Motion For Sanctions Based On Anticipated Motion
On June 11, 2024, Justice Joel M. Cohen denied Defendants’ motion for sanctions in anticipation of a motion by the individual plaintiff to renew or reargue the Court’s prior dismissal of the action in Zaklady Tytoniowe W. Lubline S.A. v. MS Global Funding LLC, Index No. 652975/2014, on forum non conveniens grounds. The plaintiff indicated he planned to file a motion for renewal or reargument, and Defendants filed a motion for, inter alia, sanctions under 22 NYCRR 1301.1. The Court denied the motion without prejudice as premature, explaining: Read More
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Posted: September 11, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. Turner Court Continues Stay Despite Delay In Out Of State Trial That Was Basis For Stay
On July 10, 2024, Justice Joel M. Cohen denied Defendants' motion to lift a stay of discovery in Barons Media, LLC v. Shapiro Legal Group, PLLC, Index No. 652481/2023. In October 2023, the Court granted defendant’s motion for a stay pending the result of a case in Florida “because the result in the Florida Action may impact the viability of this case.” Further, the Florida trial was scheduled to begin in October 2023, shortly after the stay order was issued. However, the Florida Action was delayed. Thus, in May 2024, plaintiff moved to lift the stay. The Court denied the motion, explaining: Read More
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Posted: September 9, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Grants Motion To Dismiss Breach Of Implied Covenant Of Good Faith And Fair Dealing Claim
On July 10, 2024, Justice Andrea Masley issued a Decision and Order in SC Philips Clark LLC v. Shore Club Property Owner LLC, Index No. 652489/2022, granting, in part, Defendants’ motion to dismiss. Plaintiff brought several claims alleging that defendants usurped plaintiff’s interest in the Shore Club Hotel and adjoining beachfront property, located in Miami Beach, Florida. The Court dismissed, inter alia, plaintiff’s cause of action for breach of the implied covenant of good faith and fair dealing. The Court explained: Read More
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Posted: September 6, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerMotion to Intervene Granted Where Lender Had A Contractual, Current Right To Cure The Tenant’s Default
On May 7, 2024, Justice Andrew Borrok granted a lender’s motion to intervene in an owner-tenant dispute on the basis that the lender had a contractual, current right to cure any default by the tenant. In NG Crown 20 E. 46th Street LLC v. 18-20/22 East 46th Street LLC, Index No. 656817/2022, the lease in dispute provided that, in the event of a default by the tenant, the lender has “certain current rights,” including the right to cure any tenant default. The owner opposed the motion by arguing it was either premature or otherwise untimely. The Court disagreed, finding that a motion to intervene could be made. It explained: Read More
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Posted: September 4, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Allows Derivative Claims To Proceed On The Basis Of Alleged “Oral LLC Agreement”
On July 11, 2024, Justice Andrea Masley allowed a plaintiff to add derivative claims to his complaint despite the plaintiff’s failure to provide any written proof that he was a member of the LLC that had standing to sue on the LLC’s behalf. In Edward O’Brien, et al., v. Lawrence Kaplan, et al., Index No. 652840/2020, plaintiff Edward O’Brien sought to amend his complaint to add derivative claims on behalf of an LLC named CSG Partners for breach of fiduciary duty and fraudulent conveyance. The defendants opposed the amendment and submitted a written operating agreement showing that O’Brien was not identified as a member. O’Brien responded by pointing to e-mail conversations and allegations suggesting he was essentially promised the status of a member even though he could not provide a written operating agreement to substantiate it. The Court held that O’Brien’s allegations of an “oral LLC agreement” sufficed. It explained: Read More
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Posted: August 30, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerArbitration Award Confirmed Notwithstanding Assertion Of Unresolved Counterclaim By Respondent’s Affiliate
In an order dated June 11, 2024, Justice Joel M. Cohen confirmed an arbitration award under CPLR 7510, rejecting respondent’s argument that the award was deficient for failing to resolve a counterclaim by an affiliate with common management. The case is Royalty Coffee Beans LLC v. H&H Coffee Group Export Corp., Index No. 655425/2023. Read More
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Posted: August 28, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerExpert Affidavit Insufficient To Defeat Summary Judgment For Insurer
In decisions dated July 10, 2024, in two related actions, Justice Margaret A. Chan granted summary judgment dismissing various claims and cross claims brought against an insurer in Argonaut Insurance Company a/s/o 839 West End Inc. and NIV Realty v. Wayne’s Eco-Friendly Solutions, LLC and Master Fire Systems, Inc., Index No. 162422/2019 (Case 1); Utica First Ins. Co. v Wayne's Eco-Friendly Solutions LLC, Index No. 154187/2020 (Case 2). Read More
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Posted: August 26, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerMotions For Redaction, Unsealing, Granted In Part, Denied In Part
On July 11 2024, Justice Andrea Masley resolved various motions concerning the sealing or redaction of documents alleged to contain confidential business information. The case is Jaffrey v. Scaminaci, Index No. 653352/2022. Read More
