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Posted: May 15, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Denies Class Certification To Plaintiffs Suing Cosmetics Chain for Marketing “Vegan” Products That Contained Animal-Derived Ingredients
On April 7, 2024, Justice Andrea Masley denied a motion to certify three classes of plaintiffs claiming that the retail cosmetics chain Ultra marketed products as “vegan” that contain an animal-derived ingredient called carmine. The plaintiffs in Sarah Hogan, et al. v. Ultra Salon, Cosmetics & Fragrance, Inc., Index No. 651986/2020, sought to represent individuals who had bought certain online products from Ultra in New York, California, and Illinois from May 26, 2017, to the present. But the Court found that plaintiffs had failed to satisfy the factors of commonality and typicality required for certification. With regard to commonality in particular, the Court held that the plaintiffs had not presented a theory of damages amenable to a class action given their failure to show any “price premium” for vegan products. It explained: Read More
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Posted: May 13, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerFirst Department Revives Claims Against Accountants For Malpractice and Fraud Despite Evidence Showing They Disclosed The Purportedly Fraudulent Transactions In Company’s Financial Statements
On April 4, 2024, the Appellate Division, First Department, reversed a lower court decision to dismiss claims for malpractice and aiding and abetting fraud brought against an accounting firm despite evidence showing the accountants had disclosed the allegedly fraudulent transactions to the plaintiffs. In 1650 Broadway Associates, Inc., et al. v. Kenneth Strum, et al., Index No. 651690/2021, majority owners of the Manhattan 50s-themed Stardust Diner asserted claims against their former accountants after allegedly uncovering years of financial malfeasance by the diner’s minority owner and manager. The wrongdoing included taking unauthorized loans from the diner and forging one plaintiff’s signature on loan guarantees. The plaintiffs sued both the manager and the diner’s accounting firm, arguing the accountants knew of the fraudulent loans and breached their fiduciary duties by failing to alert them of the misconduct. Read More
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Posted: May 10, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerSummary Judgment Premature As To Condominium Builder’s Liability For Burst Pipe Damage Where Operative Agreement On Builder’s Obligations Was Not Before The Court
In The Charles Condominiums, LLC v. Victor RPM First, LLC, Index No. 657040/2019 (April 5, 2024), Justice Margaret A. Chan denied a motion for summary judgment, as to liability only, by a luxury condominium developer seeking millions of dollars from its development manager (i.e., the contractor, “Victor”) for breach of contract related to a burst pipe. Read More
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Posted: May 8, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Allows Repled Contract Claim And New Fraudulent Conveyance Claims To Proceed After Dismissal Of Most Of Prior Complaint
On April 1, 2024, Justice Melissa A. Crane granted in part a motion to file a second amended complaint and denied a motion for sanctions. Plaintiff in G&Y Maintenance Corp. v. 540 West 48th St. Corp., GLSC, Index No. 652108/2020, is a subcontractor that had sued its general contractor and others for account stated, unjust enrichment and quantum meruit, and asserted veil-piercing claims against Chiang, principal of Core, one of the corporate Defendants. Two years earlier, the Court had dismissed all of those claims, leaving only a breach of contract claim against Core. Read More
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Posted: May 6, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Determines Amount of Contractual Attorney’s Fees Due Under Prior Ruling on Fee Liability
On April 5, 2024, in Caelen Invs. LLC v. Notias, Index No. 654142/2020, Justice Joel M. Cohen awarded $700,000.00 in contractual attorney’s fees and costs to Plaintiff in a suit for breach of a Loan Agreement. Having earlier prevailed on summary judgment and on liability for costs and fees, Plaintiff sought a total award of $838,414.56 ($818,391.00 in fees and $20,023.56 in costs.). Read More
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Posted: May 1, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCommercial Division Rules Updated to Add Technology Cases to List of Cases Eligible for Commercial Division and to Remind Counsel About Use of Referees
On February 14, 2024, the Chief Administrative Judge of the Courts signed an administrative order (i) adding technology transactions and commercial disputes involving or arising out of technology to the list of cases that can be brought in the Commercial Division, and (ii) adding a new Rule 9-b reminding counsel of the ability to consent to the use of referees. Read More
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Posted: April 26, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Denies Motion To Strike Jury Demand
On April 9, 2024, Justice Andrea Masley denied defendants’ motion to strike plaintiff’s jury demand. In Khan v. Garg, 652334/2013, the Court explained: Read More
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Posted: April 24, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Grants Mandatory Injunction Requiring Purchaser To Close On Transaction
On April 6, 2024, Justice Andrea Masley granted plaintiff’s motion for a preliminary injunction and required the defendant purchaser to close on the sale of a business within 10 days of the order. In James River Group Holdings, Ltd. v. Fleming Intermediate Holdings, LLC, Index No. 651281/2024, the parties were to close on March 1, 2024 on the sale of plaintiff’s reinsurance subsidiary to defendant. However, defendant refused to do so absent significant concessions. Plaintiff brought suit and sought a preliminary injunction requiring the specific performance of the parties’ Stock Purchase Agreement. In granting the motion, the Court explained: Read More
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Posted: April 22, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Denies Motion For Summary Judgment In Lieu Of Complaint
On April 5, 2024, Justice Margaret A. Chan denied plaintiff’s motion for summary judgment in lieu of complaint based on certain promissory notes. The decision in Elisa Wietschner, as trustee of the WFIG Trust v. 9 Vandam JV LLC, Index No. 655573/2023, explained: Read More
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Posted: April 19, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Finds Action For Indemnification Premature Where Agreement Lacked An Advancement Clause And No Covered Payment Had Yet Been Made
On March 11, 2024, Justice Joel M. Cohen granted a motion to dismiss Plaintiff’s claim for breach of a contractual duty to indemnify litigation expenses the Plaintiff had paid in connection with ongoing litigation in Oklahoma and the bankruptcy of its subsidiary. In SBN FCCG, LLC v. Fog Cutter Capital Group, Inc., Index No. 650197/2023, Plaintiff contended the Defendant was obligated to pay Plaintiff’s litigation expenses based on a contractual indemnification clause. The Court rejected the claim as premature, however, finding that the contract contained no advancement clause that might mandate coverage of ongoing litigation expenses before the ultimate resolution of the case. The Court also concluded that a settlement in the subsidiary’s bankruptcy had explicitly disclaimed existence of the criteria needed to trigger indemnification of litigation expenses. As to the ongoing Oklahoma litigation expenses, the Court explained: Read More
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Posted: April 17, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerDefendants’ Fears That Rival May Use Information To Tortiously Interfere With Business Opportunities Does Not Warrant Attorneys’ Eyes Only Designation
On March 5, 2024, Justice Andrew Borrok granted a motion to compel discovery and declassify certain information marked by the Defendants as “Attorneys’ Eyes Only.” The court in Richmond Global Compass Fund Management GP, LLC, et al. v. Decio Nascimento, et al., Index No. 654190/2021, concluded that Defendants could not limit the provision of certain information solely to the Plaintiff’s attorney even if Defendants feared that the Plaintiff would use that information to tortiously interfere with Defendants’ current and prospective business relations. The Court explained, in part: Read More
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Posted: April 15, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Denies Motion To Amend Complaint To Add New Claims After Dismissal Of Original Claims On Appeal
On March 11, 2024, Justice Andrew Borrok denied a plaintiff’s motion to amend his complaint to add new theories of liability after the Appellate Division dismissed his original claims. The decision in Finkelstein v. U.S. Bank, National Associate, As Trustee, Index No. 650849/2021, flagged a number of problems with the plaintiff’s proposed amended complaint, including that the claims were untimely and did not relate back to the original complaint. But the Court also noted that the Plaintiff had not shown a reasonable excuse for his delay in moving to amend to add the new claims, rejecting his argument that dismissal on appeal had altered the law in a way that justified amendment. The Court explained: Read More
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Posted: April 12, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Grants Civil Contempt for Failure to Cooperate with Court-Appointed Receiver
On March 11, 2024, Justice Andrea Masley of the New York County Commercial Division, issued a decision in Bernstein-Deitcher v Gurwitz, 2024 NY Slip Op 30819(U), granting the motion by the Court-appointed receiver to hold the Defendant in civil contempt for lack of compliance with the Court’s prior order requiring the turnover and sale of certain shares of stock to satisfy an unpaid judgment. The Court held that contempt was appropriate despite Defendants’ compliance with certain aspects of that order after the receiver had moved for contempt. The Court explained: Read More
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Posted: April 10, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Dismisses Complaint Based on Statute of Frauds
On March 7, 2024, Justice Andrew Borrok of the New York County Commercial Division issued a decision in UNO A Brokerage Inc v. Inshur, Inc., 2024 NY Slip Op 30733(U), granting Defendant’s motion to dismiss Plaintiff’s claims, including Plaintiff’s claim for breach of contract based on a provision of New York’s statute of frauds, General Obligations Law § 5-701(a)(10). The Court explained in relevant part: Read More
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Posted: April 8, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Grants Motion to Dismiss for Lack of Personal Jurisdiction
On March 6, 2024, Justice Joel M. Cohen of the New York County Commercial Division issued a decision in Dembicki v. Synergy Health Network, Inc., 2024 NY Slip Op 30704(U), granting Defendants’ motion to dismiss for lack of personal jurisdiction. The Court held that the parties’ agreement to New York law, and to an arbitration clause requiring arbitration of the parties’ claims in New York, was insufficient to create personal jurisdiction over Defendants, who otherwise had no connection to New York. The Court explained: Read More
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Posted: April 5, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerDeclaratory Judgment Unavailable When Plaintiff May Obtain Adequate Relief Through Other Causes of Action In Suit
On March 6, 2024, Justice Joel M. Cohen of the New York County Commercial Division issued a decision in Barons Media, LLC v. Shapiro Legal Group, PLLC, Index No. 652481/2023, dismissing a claim for a declaratory judgment that was duplicative of a separate tort claim for money damages, explaining: Read More
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Posted: April 3, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerDefendant's Production of "Screenshots" of ESI Insufficient
On March 6, 2024, Justice Joel M. Cohen of the New York County Commercial Division issued a decision in Zuckerbrot v. Gellis Lande, Index No. 655110/2020, rejecting defendant's claim that her production of "screenshots" of electronically stored information (ESI), rather than "native format ESI," from her social media accounts was sufficient, and fashioning a procedure by which recovery of defendant's social media data may be retrieved, explaining: Read More
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Posted: March 29, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Grants Plaintiff Summary Judgment Requiring City To Close Pursuant To Terms of Ground Lease
On March 5, 2024, Justice Andrew Borrok granted plaintiff’s motion for summary judgment and denied the City’s motion. The decision in Atlantic Center Fort Greene Assoc., LLC v. The City of New York, Index No. 656207/2021, concerned a lease agreement dated August 4, 1995, between the City as landlord and plaintiff’s predecessor in interest as tenant. The Court explained: Read More
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Posted: March 27, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Denies Motion To Compel Post-Judgment Deposition Since It Was Sought Under Wrong Article of the CPLR
On March 13, 2024, Justice Joel M. Cohen denied, without prejudice, plaintiffs’ motion to compel a deposition of defendant. The decision in Law Office of Mark. S. Helweil v. Karambelas, Index. No. 159060/2018, explained: Read More
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Posted: March 25, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt’s 2023 Annual Report Highlights Commercial Division Advisory Council
The recently issued New York State Unified Court System 2023 Annual Report highlights the work of the Commercial Division Advisory Council, which, inter alia, proposes procedural rules for the Commercial Division, and quotes Advisory Council member Heather Mulligan, President and CEO of The Business Council of New York State. Read More
