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Posted: July 8, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerInvoluntary Dissolution of LLC Denied Where Petitioner Alleged No More Than A Dispute Between Members And The Articles Of Organization Did Not Support A Risk of Deadlock
On May 15, 2024, Justice Andrew Borrok denied a petition for dissolution of a LLC by one of its two members after the relationship between the two 50-50 members had allegedly broken down. In Petition for Dissolution v. Gad Ruham, Index No. 656166/2023, the petitioner filed a special proceeding to dissolve Hoham 932 Grand Street LLC, a limited liability company formed to hold a single property located in Brooklyn, New York. The Court noted allegations in the petition suggesting the relationship between the two members had “broken down.” But it held that none of the allegations met the statutory standard for the “drastic remedy” of dissolution under Limited Liability Company Law § 702. The Court explained: Read More
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Posted: July 5, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. Turner Motion To Dismiss Breach Of Contract Claims Regarding Agreement To Purchase Past-Due Receivables Granted In Part, Denied In Part
On May 29, 2024, Justice Andrea Masley granted in part and denied in part a motion to dismiss claims brought against a corporation and its parent under a letter of intent that contemplated an agreement to purchase past-due receivables due to non-parties owned by the non-parent defendant entity. Gramercy Funds Mgt. LLC v Schlumberger N.V., Index No. 653657/2022. Read More
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Posted: July 3, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerNon-Competition/Solicitation Claims Sustained In Part Against Plaintiff’s Former Employee, Dismissed Against Employee’s New Employer, and Plaintiff’s Motion To Amend Denied
On May 29, 2024, Justice Melissa A. Crane granted one defendant’s motion to dismiss all claims, granted the second defendant’s motion to dismiss in part, and denied plaintiff’s motion to file a second amended complaint. Prager Metis CPAS LLC v Koenig, Index No. 652000/2023. Read More
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Posted: July 1, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Grants Summary Judgment Dismissing Claim To Inspect Books And Records
On May 15, 2024, Justice Margaret A. Chan granted summary judgment to defendant American Express Company (“Amex”), dismissing a shareholder’s application to inspect its corporate books and records. Hafeez v American Express Co., Index No. 656656/2022. Read More
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Posted: June 28, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerMotion for Preliminary Injunction to Prevent Opening of Cannabis Dispensary Denied For Lack of Irreparable Harm
On May 31, 2024, Justice Margaret A. Chan of the New York County Commercial Division issued a decision in NAP IV LLC v. Qube USA LLC, Index No. 651937/2024, denying plaintiff's motion for a preliminary injunction preventing defendants from opening a cannabis dispensary in alleged violation of an NDA with plaintiff, which included a non-circumvention clause allegedly preventing defendants from going around plaintiff to open the dispensary at the Times Square location presented by plaintiffs, explaining: Read More
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Posted: June 26, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerInternal-Affairs Doctrine Presumptively Applies, But Presumption Rebutted When New York Has Dominant Interest in Applying Its Own Law
On May 23, 2024, the Court of Appeals issued a decision in Eccles v. Shamrock Capital Advisors, LLC, 2024 NY Slip Op 02841, holding that, while the substantive law of a company's place of incorporation presumptively applies to causes of action arising from its internal affairs, this presumption can be rebutted when (i) the interest of the place of incorporation is minimal, and (ii) New York has a "dominant interest" in applying its own substantive law, explaining: Read More
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Posted: June 21, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Denies Motion To Dismiss Labor Law Claim
On May 5, 2024, Justice Andrew Borrok denied defendant’s motion to dismiss defendant’s counterclaim under New York Labor Law. In FF Venture Capital, LLC v. Adam J. Plotkin, RDWC, LLC, Index No. 651314/2023, defendant claimed that plaintiff withheld his compensation and alleged violation of Labor Law § 193. The Court explained that such allegations stated a claim: Read More
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Posted: June 19, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. Turner Court Holds That Plaintiff Has Standing Because Note And Guaranty Were Properly Assigned
On April 29, 2024, Justice Andrew Borrok granted plaintiff’s motion for summary judgment. The plaintiff in Lapis Advisers, LP et al. v. Coal Capital Ephrata, LLC, Index No. 650128/2021 sought summary judgment for failure to repay amounts on a note assigned to plaintiff. The Court concluded that plaintiff had standing, explaining: Read More
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Posted: June 17, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Grants Motion To Dismiss Breach Of Fiduciary Claim For Failure To Allege Damages
On April 12, 2024, Justice Margaret A. Chan granted plaintiff’s motion to dismiss defendants’ counterclaims for breach of contract, unjust enrichment, and breach of fiduciary duty. Defendants in Murphy v. PHG Funding LLC et al., Index No. 656158/2021, alleged counterclaims arising out a settlement with plaintiff and transactions related thereto. As to defendants’ counterclaim for breach of fiduciary duty, the Court explained: Read More
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Posted: June 12, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Denies AT&T’s Request For $7 Million Bond To Secure Claims Against Party With History Of Refusing To Pay “Even A Radish’s Worth” of Judgments
On April 30, 2024, Justice Andrea Masley denied AT&T’s request for a $7 million bond to secure claims it had brought against a party with an acknowledged history of refusing to pay judgments and insisting on judgment enforcement procedures. In Grupo Salinas Telecom, S.A. DE C.V., et al., v. AT&T Mobility Holdings B.V., et al., Index No. 652411/2022, the Court noted that it has inherent authority to impose a bond “to ensure that litigation proceed[s] efficiently and that the parties adhere[] to their obligations of litigating in good faith.” The Court acknowledged Grupo Salina’s “history of refusing to pay judgments and making public statements espousing its pride for failing to pay its judgments,” including a statement by its chairman that he “won’t pay even a radish’s worth.” Nevertheless, it concluded that a bond was not warranted. The Court explained: Read More
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Posted: June 10, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerFirst Department Holds That Note And Guaranty Stating They Are “Instrument[s] For The Payment Of Money Only” Allows Use Of Summary Judgment In Lieu Of Complaint Without Further Inquiry
On March 5, 2024, the Appellate Division, First Department, unanimously reversed a lower court decision denying summary judgment in lieu of complaint on claims to recover on a note and guaranty. In Marjan International Corporation v. Lillian August Designs Inc., Case No. 2021-04798, the Court relied on language from the note and guaranty stating that the defendant “acknowledges and agrees that this Note is an instrument for the payment of money only within the meaning of the CPLR 3213 and expressly waives any right and hereby agrees not to assert that this Note is not such an instrument.” This language was dispositive, the Court said, and obviated the need to further consider whether the note and guarantee fell within the expedited procedure of CPLR 3213. The Court explained: Read More
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Posted: June 7, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCommunications Among Counsel For Joint Venturers Not Privileged Where Counsel Is Representing Interests Of Joint Venturers Rather Than The Venture Itself
In an April 19, 2024 order, Justice Andrew Borrok addressed whether communications relating to a joint venture were protected from disclosure under the attorney-client privilege and/or work product protection. Read More
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Posted: June 5, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerSummary Judgment In Lieu Of Complaint Granted Under CPLR 3213
On April 17, 2024, Justice Melissa A. Crane granted summary judgment on a note under CPLR 3213, in TVAE Invs. LLC v. Cannetti, Index No. 656186/2023. Read More
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Posted: June 3, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerSotheby’s Avoids Some But Not All Claims Asserted By Seller Of A Picasso That Buyer Failed To Pay For In Full
On May 7, 2024, Justice Joel M. Cohen dismissed some claims, and sustained others, brought against an auction house by the seller of a Picasso painting. Read More
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Posted: May 31, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerReceiver Appointed Over Judgment Debtors' Interests in Business Entities After Judgment Debtors Violate Court Orders and Evade Judgment Enforcement
On April 19, 2024, Justice Melissa A. Crane of the New York County Commercial Division issued a decision in DB Auraria LLC v. Nelson, et al., Index No. 653436, granting a judgment creditor's motion to appoint a receiver over the interests of judgment debtors in any business entity, explaining: Read More
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Posted: May 29, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerBankruptcy Filing, Which Was Later Dismissed, Did Not Excuse Buyer Under Loan Sale Agreement From "Time of the Essence" Requirement to Close
On April 12, 2024, Justice Margaret Chan of the New York County Commercial Division issued a decision in Wilmington Trust, N.A. v. 39-05 29th St Hotel, LLC, et al., Index No. 654401/2023, denying a motion to dismiss brought by the defendant-buyer under a Loan Sale Agreement for breach of this agreement and rejecting the defendant-buyer's argument that its bankruptcy filing, which was later dismissed, waived the plaintiff-seller's right to demand a time-of-the-essence closing, explaining: Read More
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Posted: May 24, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Denies Motion To Dismiss Breach Of Contract Claim
On April 12, 2024, Justice Margaret A. Chan denied defendant’s motion to dismiss plaintiff’s complaint based on documentary evidence, lack of standing/capacity to sue, and for failure to state a claim. In Alternative Global Six, LLC v. Durham Homes, LLC, Index No. 653837, plaintiff alleged a single cause of action for breach of contract based on defendant’s failure to repay loans and interest in the amount of $7,277,969. As to the lack of standing and capacity to sue, Justice Chan explained: Read More
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Posted: May 22, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Denies Unopposed Motion for Summary Judgment in Lieu of Complaint
On April 19, 2024, Justice Margaret A, Chan denied an unopposed motion for summary judgment in lieu of complaint. The plaintiff in RS E Orange, LLC v. Proudliving Companies, LLC et ano., Index No. 655013/2023, sought just under $4 million from defendants Proudliving and Andrew Brown under a guaranty agreement. The Court explained: Read More
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Posted: May 20, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Denies Motion To Dismiss Fraudulent Transfer Claim
On April 19, 2024, Justice Joel M. Cohen denied a motion to dismiss plaintiff’s claim for fraudulent transfer. The plaintiff in Monex Canada, Inc. v. Bank of America, N.A. et al., Index No. 655076/2023, alleged that a non-party had defrauded it out of millions of dollars by unlawfully reversing Pre-Authorized Debit (“PAD”) transfers, which funds were in turn ultimately directed to the moving defendants. Plaintiff asserted a claim for fraud under the New York Uniform Voidable Transactions Act and in particular Sections 273(a)(1) and 276 of the New York Debtor Creditor Law. The Court rejected the moving defendants’ argument that plaintiff had failed to state a claim for actual fraudulent transfer, explaining: Read More
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Posted: May 17, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerPrivilege Waived Where Client’s Father Passed Messages Between Incarcerated Client and His Attorneys
On April 7, 2024, Justice Andrea Masley granted a petitioner’s motion to compel the production of communications from the law firm Hecht Partners, LLP in response to the petitioner’s judgment-enforcement subpoena. In TGT, LLC v. Joseph Meli, et al., Index No. 153682/2023, petitioner TGT, LLC sought communications between the law firm and its then-client, Joseph Meli, during a period when Meli had been incarcerated. Meli had relied on his father to communicate back-and-forth with the law firm. The Court rejected the law firm’s assertion of attorney-client privilege and the common interest exception, holding that the participation of Meli’s father in the communications had waived any privilege. The Court explained: Read More
