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Posted: March 22, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerDefendant’s Decision To Attend His Deposition and Invoke the Fifth Forfeited Right To A Stay to Preserve His Civil Defenses
On February 5, 2024, Justice Andrew Borrok denied a defendant’s motion for a stay and granted a plaintiff’s motion to dismiss the defendant’s counterclaims and defenses based on the defendant’s invocation of the Fifth Amendment during his deposition in the case. The decision in ATX Debt Fund 2, LLC v. Natin Paul, et al, Index No. 650728/2020, noted that the defendant, Natin Paul, faced parallel criminal proceedings at the time he was deposed for this civil case. Paul invoked the Fifth Amendment more than 400 times during that deposition, including in response to questions that the Court characterized as “unquestionably material and necessary to the maintenance of his counterclaims and affirmative defenses in this case.” In a bid to preserve his counterclaims and defenses, despite refusing to answer these questions, Paul moved for a stay in the civil action. The Court denied the stay and suggested that Paul should have sought a stay before attending his deposition, explaining in part: Read More
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Posted: March 20, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Holds Tenant Waived Right to Money Damages Based on Landlord’s Conduct After COVID-19 Restrictions Lifted
On January 30, 2024, Justice Andrew Borrok granted a motion to dismiss a tenant’s action for money damages brought against its landlord for unreasonably preventing it from reopening following the lifting of government restrictions surrounding COVID-19. The decision in 2M Hospitality Group, LLC v. Sahara Plaza, LLC, Index No. 653345/2023, concluded that a provision in the lease waived the tenant’s right to money damages based on the landlord’s failure to act reasonably or default under the lease. The Court also explained, in part: Read More
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Posted: March 18, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Quashes Subpoenas Seeking To Support Affirmative Defenses, Suggesting Defenses Were Too Conclusory To Support Third-Party Discovery
On January 25, 2024, Justice Robert R. Reed granted a motion to quash several subpoenas seeking financial records from third parties as “utterly irrelevant to the action,” rejecting arguments that the requested records supported a defendant’s counterclaim and affirmative defenses. The decision in UKI Freedom LLC v. Organization for the Defense of Four Freedoms For Ukraine, et al., Index No. 158095/2022, noted that the defendant’s counterclaim had previously been dismissed and that the affirmative defenses relied upon by the defendant were too conclusory to support third-party discovery. The Court explained: Read More
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Posted: March 15, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerDefendant Held in Civil Contempt and Fined for Violation of Preliminary Injunction Order
On January 25, 2024, Justice Margaret A. Chan of the New York County Commercial Division, issued a decision in Emigrant Bus. Credit Corp. v. Hanratty, Index No. 158207/2022, granting in part plaintiff’s motion insofar as it sought to hold one of the defendants in civil contempt for violating the court’s prior preliminary injunction order. The Court explained: Read More
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Posted: March 13, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCounterclaim for Breach of Covenant of Good Faith and Fair Dealing Dismissed as Duplicative
On January 27, 2024, Justice Andrew Borrok of the New York County Commercial Division, issued a decision in Prosight Specialty Management Company v. Altruis Group, LLC, Index No. 653775/2023, granting plaintiff’s motion to dismiss the defendant’s counterclaims, including defendant’s counterclaim for breach of the implied covenant of good faith and fair dealing as duplicative of the defendant’s counterclaim for breach of contract. The Court explained: Read More
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Posted: March 11, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Confirms Special Referee Decision
On January 23, 2024, Justice Margaret A. Chan of the New York County Commercial Division, issued a decision in Wells Fargo Bank, National Association v. 555 Retail Owner LLC, Index No. 850277/2021, granting the plaintiff’s unopposed motion to confirm the Report and Recommendation issued by the Special Referee calculating the damages and interest owed on a defaulted mortgage and recommending that the mortgage premises be sold in a single parcel. The Court explained: Read More
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Posted: March 8, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCommercial Construction Dispute Kicked From Commercial Division
On February 13, 2024, Administrative Justice Adam Silvera denied a letter application, in Island Exterior Fabricators LLC v. Tishman Construction Corp. of New York, Index No. 654788/2023, to transfer a commercial construction dispute to the Commercial Division, holding that the case did not belong in the Commercial Division, explaining: Read More
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Posted: March 6, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerObjections to Earnout Statement in Attorney Letter Satisfied "Reasonable Detail" Requirement
On February 9, 2024, Justice Andrew Borrok of the New York County Commercial Division issued a decision in Tromer v. PEAK6 Insurtech Holdings LLC, Index No. 653530/2023, denying summary judgment to counterclaim plaintiff on the ground that, contrary to its argument and in accordance with the parties' unit purchase agreement, counterclaim defendant had "specif[ied] in reasonable detail" its objections to the amounts set forth in counterclaim plaintiff's earnout statement, explaining: Read More
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Posted: March 1, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Rejects Claim Of Impossibility Regarding Preservation of Evidence
On January 18, 2024, Justice Andrea Masley granted sanctions against defendant Charter Communications Operating, LLC (“Charter”) for spoliation of evidence. The decision in Earthlink, LLC v. Charter Communications Operating, LLC, Index No. 654332/2020, rejected Charter’s claim that preserving recordings of millions of calls over several months was impossible. The Court explained: Read More
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Posted: February 28, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Has Jurisdiction Over LLC Based On Alter Ego Allegations
On January 26, 2024, Justice Melissa A. Crane denied defendant’s motion to dismiss for lack or jurisdiction. The decision in Bochenek v. Ashton, Index No. 654904/2022, concerned defendant Twenty Seven Investment Group, LLC (“TSIG”). As to jurisdiction over TSIG, the Court explained: Read More
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Posted: February 26, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerBreaches Of Non-Monetary Provisions Of Credit Agreement Are Material
On January 26, 2024, Justice Melissa A. Crane granted plaintiffs’ motion for summary judgment regarding, inter alia, their breach of contract claim. The decision in Regions Bank v. VativoRX, LLC, Index No. 654741/20229, rejected defendant’s argument that the breach of certain terms in the credit agreement at issue requiring the provision of annual audited financial statements, along with related certifications and accompany documentation, and the transfer of accounts to plaintiffs were not material breaches. The Court disagreed: Read More
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Posted: February 23, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Confirms Arbitral Award After the Party that Initially Compelled the Arbitration Lost and was Forced to Pay Costs and Fees
On January 14, 2024, Justice Margaret A. Chan denied a motion to vacate an arbitral award brought by a party that had previously moved to compel arbitration in the first place. The decision in Skyline Steel, LLC v. PilePro LLC, et al., Index No. 650531/2015, noted that petitioner Skyline Steel had first initiated the matter by moving to stay arbitration. Respondent PilePro opposed that motion and successfully cross-moved to compel arbitration. The parties then proceeded to arbitration under JAMS Expedited Procedures. However, after PilePro lost in arbitration and was forced to pay costs and fees, it returned to court with a motion under CPLR 7511 to vacate the arbitral awards, arguing among other things that the arbitration panel exceeded its authority. The Court rejected that motion, finding that the arbitration panel had carefully considered the evidence, made logical rulings, and acted within its authority when it awarded Skyline more than $200,000 in fees and costs. The Court explained, in part: Read More
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Posted: February 21, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Grants In Camera Review of Documents Despite Referee’s Decision, Noting Review is Standard Practice in Commercial Division
On January 20, 2024, Justice Andrea Masley granted a motion requesting in camera review of documents even after a discovery referee had declined to perform an in camera review. The decision in CWCapital Cobalt VR Ltd. v. CWCapital Investments LLC, et al., Index No. 653277/2018, vacated the referee’s order and allowed for in camera review of 35 emails exchanged between lawyers and nonlawyers over which the defendants had claimed attorney-client privilege. In granting the motion, Justice Masley indicated that in camera review has become common practice in the Commercial Division. The Court explained: Read More
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Posted: February 16, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerPlaintiff Barred From Calling Witnesses at Trial Due to Failure to Identify Witnesses During Discovery or in Pre-Trial Filings
On February 1, 2024, Justice Andrea Masley of the New York County Commercial Division, issued a decision in Gerasimowicz v Aslanis, 2024 NY Slip Op 30384(U), Index No. 654322/2013, granting defendants’ motion to preclude plaintiff from calling seven witnesses at trial based on plaintiff’s failure to identify those witnesses despite being repeatedly asked to do so during discovery or pursuant to the Court-ordered pre-trial schedule. The Court rejected plaintiff’s argument that this failure could be cured by permitting the witnesses to be deposed before trial, noting plaintiff’s repeated failure to comply with discovery orders. The Court explained: Read More
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Posted: February 14, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Dismisses Contribution Claim Where Damages Sought on Underlying Claim Purely Economic in Nature
On January 29, 2024, Justice Andrea Masley of the New York County Commercial Division, issued a decision in One PPW Owner, LLC v IBI Group, 2024 NY Slip Op 30330(U), Index No. 653862/2020, granting third-party defendants’ motion for reargument of the Court’s prior decision denying their motion to dismiss a claim for contribution against them, and upon rearugment, dismissing the contribution claim against them. The Court accepted the third-party defendants’ argument that First Department case law required that the contribution claim against them be dismissed because the damages sought on the underlying claim for malpractice were purely economic in nature. The Court explained: Read More
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Posted: February 12, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Grants Partial Sealing of Documents Containing Confidential Business Information and Nonpublic Information about Agreements with Non-Parties
On December 28, 2023, Justice Joel M. Cohen of the New York County Commercial Division, issued a decision in Pearl Street Co-Invest I v. MAPR (ABC) LLC, Index No. 654461/2020, granting in part and denying a part a motion to seal certain documents. The Court granted sealing of certain documents for which the Court found the moving party had adequately shown contained sensitive and confidential business information and/or nonpublic information about contracts or agreements with third parties. The Court denied the motion as to other documents for which the Court found sealing was not adequately justified by showing good cause, but permitted the plaintiffs to propose more targeted redactions to those documents. The Court explained: Read More
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Posted: February 9, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerLaw Firm's Execution of Tolling Agreement Constituted Making of "Claim" Under Professional-Liability Policy
On October 27, 2023, Justice Joel M. Cohen of the New York County Commercial Division issued a decision in Allied World Assurance Company (U.S.) Inc. v. Golenbock Eiseman Assor Bell & Peskoe, LLP, Index No. 653762/2022, holding that an insured's execution of a tolling agreement was a "Claim" under the insured's professional-liability policy, and because this "Claim" was made before the policy period began, the carrier was entitled to a declaratory judgment that this "Claim" was not covered under the policy, explaining: Read More
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Posted: February 7, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerRMBS Trustee's Failure to Provide Timely Notice of Breach of Representations and Warranties Constituted Failure to Satisfy Condition Precedent to Defendants' Repurchase Obligation
On December 30, 2023, Justice Joel M. Cohen of the New York County Commercial Division issued a decision in U.S. Bank, N.A., v. DLJ Mortgage Capital, Inc., et al., Index No. 653140/2015, dismissing claims, brought by the trustee of an RMBS trust, alleging that defendants failed to repurchase loans in the trust following the trustee's provision of notice of breaches of representations and warranties concerning loans in the trust, explaining: Read More
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Posted: February 5, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerNo Default Judgment When Defendant's Delay in Answering Was Brief, Not Willful, and Did Not Prejudice Plaintiff
On December 23, 2023, Justice Joel M. Cohen of the New York County Commercial Division issued a decision in Forum Gallery Inc. v. Spirits Financial Corp., et al., Index No. 653573/2023, rejecting defendant's argument that it was not properly served, but nonetheless denying plaintiff's motion for entry of a default judgment because the delay in answering was "brief," was "not willful," and did not prejudice plaintiff, explaining: Read More
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Posted: February 2, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Holds Defendants Jointly and Severally Liable After Non-Jury Trial For Nearly $1.3 Million
On December 29, 2023, Justice Joel M. Cohen found in favor of Plaintiff Brad Kruchten against Defendants Eastman Kodak Company Computershare, Inc., and Computershare Trust Company, N.A. in the amount of $1,293,916.88 on claims for damages Kruchten incurred when he was unable to exercise his Kodak stock options due to corporate errors. In its Decision after Non-Jury Trial, in Kruchten v. Eastman Kodak Co. et al., Index No. 656302/2020, the Court explained: Read More
