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Posted: January 31, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Grants Defendants’ Motion To Dismiss But Also Sanctions Them For Discovery Violations
On December 22, 2023, Justice Margaret A. Chan both granted the motion by certain defendants to dismiss, but also granted plaintiff’s request for sanctions against them. The decision in SG575 Holdings LLC v. Richard Stuyvesant Holdings et al., Index No. 651246/2019, concerned an alleged Ponzi scheme. Plaintiff had deposited $1 million into the escrow account of defendant Pincus Carlebach, a now disbarred attorney, pursuant to a sale/purchase agreement regarding certain real estate, but when the agreement was cancelled, Carlebach had misappropriated the escrowed money. Defendants were parties who had also deposited funds in Carlebach’s account but received their funds back from plaintiff’s $1 million. As to the motion to dismiss, the Court explained: Read More
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Posted: January 29, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Denies Motion To Dismiss Given Grant Of Motion To Amend
On December 23, 2023, Justice Joel M. Cohen denied defendants’ motion to dismiss plaintiff’s amended complaint based on the prior granting of plaintiff’s motion to amend. The decision in O’Keefe’s Inc. d/b/a Safti First v. 400 Times Square Associates, LLC et al., Index No. 150702/2019, rejected defendants’ argument that the evidence, affidavits, and submissions by the defendants utterly refuted the plaintiff’s claims. The Court explained: Read More
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Posted: January 26, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Denies Post-Summary Judgment Motion to Add Fraudulent Inducement Defense After Defendant Could Not Make A Prima Facie Showing
On November 27, 2023, Justice Joel M. Cohen denied a motion brought by the defendant to amend its pleadings to add a new fraudulent inducement defense before renewing its motion for summary judgment in light of that new defense. The decision in Thomas O’Connor et al. v. Society Pass Incorporated, Index No. 656938/2019, indicated openness to the general procedure for amendment and renewal but found that the defendant had not made the required prima facie showing that its defense met the heightened pleading standard for fraud. The Court explained: Read More
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Posted: January 24, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Denies Recovery of Unnecessary Interpreter Fees Expended During Depositions of Parties Who Could Speak English
On November 27, 2023, Justice Joel M. Cohen denied a motion brought by a plaintiff seeking an award of costs expended in interpreter fees at the depositions of two defendants. The decision in Winnie Tsui, et al. v. Katherine Chou, et al., Index No. 652840/2013, rejected the plaintiffs’ argument that they discovered during two depositions that the parties spoke English sufficiently to answer questions and, thus, no interpreters were necessary after having gone to the trouble and expense of arranging for interpreters. Plaintiffs argued that the defendants were able to answer questions in English and were therefore shown not to require an interpreter. The Court, however, relied on an affidavit from the defendants’ daughter attesting that both defendants were born in China and, although conversational in English, do not have a high level of fluency. The Court explained: Read More
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Posted: January 22, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Dismisses Beer Distributors’ Constitutional Challenge of New York’s Alcoholic Beverage Control Law
On December 15, 2023, Justice Andrew Borrok granted a motion to dismiss a challenge to New York’s Alcoholic Beverage Control Law by two beer distributors, who contended the law’s regulation of alcohol distribution in the state was unconstitutional. The decision in Boston Beer Corp., et al. v. Boening Brothers, Inc., et al., Index No. 655582/2021, found that the plaintiffs did not yet have standing to seek a declaratory judgment on the law’s constitutionality because the challenged provision concerning wholesaler consolidations in the beer industry was “remedial,” and no damage award had yet been made. The Court explained: Read More
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Posted: January 19, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Grants Motion for Summary Judgment Based on Breach of Unambiguous Contract Terms
On December 19, 2023, Justice Melissa A. Crane, of the New York County Commercial Division, issued a decision in Samsung Electronics Co. Ltd. v. MPEG LA, L.L.C., Index No. 656312/2022, granting plaintiff’s motion for summary judgment on its claim for breach of contract while denying defendant’s cross-motion to dismiss that claim. The court held that plaintiff’s claim was supported by the unambiguous language of the relevant agreement, and rejected the defendant’s argument that the parties’ agreement had been amended to reduce royalty payments to the plaintiff, explaining: Read More
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Posted: January 17, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Quashes Subpoena as “Fishing Expedition”
On December 19, 2023, Justice Margaret A. Chan of the New York County Commercial Division, issued a decision in Millenium Consolidated Holdings, LLC v. Bluefin Capital Management, LLC, Index No. 656387/2022, granting Plaintiff’s motion to quash a subpoena on its former employee on the basis that it was overbroad and an improper “fishing expedition.” The Court explained: Read More
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Posted: January 12, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerPayment to Defendant Conclusively Not a Loan When Documentary Evidence Showed That It Was Actually Returned Equity
On December 14, 2023, Justice Andrew Borrok of the New York County Commercial Division issued a decision in JDS Fourth Avenue JC II LLC, et al. v. Largo 613 Baltic Street Partners LLC, Index No. 651948/2020, granting defendants' motion for summary judgment and dismissing plaintiffs' claim for breach of an oral loan agreement, explaining: Read More
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Posted: January 10, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerForeign LLC Doing Business in New York Lacks Capacity to Sue Unless Registered To Do Business in New York
On December 12, 2023, Justice Barry R. Ostrager of the New York County Commercial Division issued a decision in South Beach Tristar 800 LLC v. Lincoln Arts ERFR LLC, Index No. 654461/2023, holding that a plaintiff foreign limited liability company doing, but not licensed to do, business in New York lacked legal capacity to sue, but nonetheless denying defendant's motion to dismiss on the condition that plaintiff promptly register to do business in New York, explaining: Read More
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Posted: January 5, 2024
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerStatute of Frauds Does Not Preclude Claim Regarding Contract Signed By One Party But Not The Other
In a Decision and Order, dated November 21, 2023, in Bissell Street I, LLC v. Westbrook Partners, LLC, Index No. 654223/2022, Justice Joel M. Cohen denied, in part, defendants’ motion to dismiss in a dispute that concerned, inter alia, the validity and enforceability of certain agreements that were signed by one party but not the other. As to the statute of frauds, the Court explained: Read More
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Posted: January 3, 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
In a Decision and Order, dated December 6, 2023, in Strecker v. Singlepoint, Inc., Index No. 653850/2023, Justice Joel M. Cohen granted plaintiff’s motion for summary judgment in lieu of complaint pursuant to CPLR § 3213. The Court explained: Read More
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Posted: December 29, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Finds that Disclosure of Entire Email Server Did Not Result in a Waiver of the Attorney-Client Privilege over Certain Emails with Attorneys
On November 27, 2023, in White Oak Commercial Finance, LLC, v. EIA Inc., et al., Index No. 650346/2023, Justice Margaret Chan granted, in part, a motion for an order of protection sought by Defendants after the Plaintiff filed communications subject to Defendants’ attorney-client privilege on the court docket. Defendants had granted Plaintiff access to the entire contents of its email server, before the start of formal discovery, as part of a stipulation resolving an earlier motion for a preliminary injunction. Plaintiff later filed a second motion for preliminary injunction, which included a communication from the email server between some of the individual Defendants and their attorneys. Defendants sought a protective order preventing Plaintiff from reviewing or using any attorney-client communications located on the email server and preserving their attorney-client privilege. Read More
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Posted: December 27, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Grants Reargument of Summary Judgment Decision, Holds Defendant Guarantor Liable for $10 Million in Outstanding Debt of Other Defendants
On November 28, 2023, in Josh Weisberg v. Gary D. Standard, et al., Index No. 651417/2022, Justice Margaret A. Chan granted Plaintiff Josh Weisberg’s motion for reargument of summary judgment seeking to hold a guarantor liable for more than $10 million owed severally by all the other Defendants. The Court had granted Plaintiff’s earlier motion for summary judgment on liability against the Defendant debtors but denied it as to the apportionment of the amount of liability severally among the various Defendants. When considering Plaintiff’s reargument, the Court highlighted that the guarantor, Gary Standard, guaranteed the underlying note “fully and unconditionally” and agreed to language stating, “the Guaranty shall be directly enforceable against [Gary, as guarantor] without first resorting to [the other Defendants] or exhausting any remedies against [those Defendants].” The Court found that this language, and the circumstances of the case, warranted reargument and the granting of summary judgment on liability and damages against the guarantor. The Court explained: Read More
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Posted: December 22, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Denies “Fees on Fees” and Reduces Attorneys’ Fees Award Based on Duplicative and Excessive Work
On October 26, 2023 Justice Melissa A. Crane, of the New York County Commercial Division issued a decision in Newark Rehabilitation Ctr., PA v Simela, Index No. 651425/2022, 2023 NY Slip Op 33838(U), awarding plaintiff’s attorneys’ fees, but reducing the amount of fees after an inquest. First, the Court declined to award plaintiff’s attorneys fees incurred in making the fee application, holding that this would be an “impermissible award of fees on fees,” which “must be denied” “[a]bsent any statute or agreement allowing fees on fees,” which was not present in this case. The Court further reduced the remainder of the fees requested, finding that there were numerous instances of duplicative and excessive billing, explaining: Read More
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Posted: December 20, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerMotion for Leave to Amend Denied Where Proposed Third Amended Complaint Fails to Correct Defects of Prior Complaints
On October 30, 2023, Justice Andrew Borrok, of the New York County Commercial Division issued a decision in Kirschenbaum v De Baets, Index No. 653287/2019, 2023 NY Slip Op 33880(U), denying Plaintiff’s motion for leave to amend to file a third amended complaint where the proposed amendments were palpably insufficient and proposed claims that failed as a matter of law. The Court explained: Read More
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Posted: December 18, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerFirst Department Reaffirms That Assignor’s Residence Determines Place of Accrual of Breach of Contract Claim
On December 12, 2023, the Appellate Division, First Department issued a decision in IKB International, S.A. in Liquidation v. Wells Fargo Bank, N.A. and several other consolidated actions, Case Nos. 2022-04133, 2022-04134, 2022-04178, and 2022-04194. Schlam Stone & Dolan serves as co-counsel for Plaintiffs-Respondents in these actions. The First Department affirmed the trial court’s rejection of the argument by Defendants-Appellants on summary judgment that the German statute of limitations governed the timeliness of Plaintiffs’ breach of contract claims, holding that the law of the place of the party that assigned the claims to Plaintiffs, in this case Ireland, was the proper foreign law to consider pursuant to New York’s borrowing statute, CPLR 202. The First Department explained: Read More
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Posted: December 8, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Denies Motion To Dismiss Upon Reargument Finding Causation Was Alleged
In a Decision and Order, dated October 25, 2023, in Prospect Capital Corp. v. Morgan Lewis & Bockius LLP, Index No. 653941/2022, Justice Margaret A. Chan granted plaintiff’s motion for reargument and, upon reargument, denied defendant’s motion to dismiss. The case concerned plaintiff’s claim for legal malpractice in connection with services rendered by defendants while negotiating the terms of a subordinated debt agreement. The Court had previously granted defendants’ motion to dismiss due to failure to allege causation or damages. However, upon reargument, the Court explained: Read More
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Posted: December 6, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Grants Motion To Amend Since There Was No Prejudice Or Undue Delay
In a Decision and Order, dated October 13, 2023, in Katzoff v. BSP Agency, LLC., Index No. 655823/2020, Justice Margaret A. Chan granted plaintiffs’ motion for leave to amend their complaint to add several defendants. The Court granted the motion, finding no prejudice or undue delay, and that the claims were not insufficient as a matter of law. As to prejudice and undue delay, the Court the explained: Read More
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Posted: December 4, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Denies Motion to Compel and To Vacate Note of Issue
In a Decision and Order, dated October 14, 2023, in O’Connor v. Society Pass, Inc., Index No. 656938/2019, Justice Joel M. Cohen denied defendant’s motion to compel discovery and to strike the Note of Issue. The Court explained: Read More
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Posted: December 1, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Dismisses Racial Discrimination Claims Asserted After Employee’s Termination, Rejecting Pretext Arguments
In a Decision, dated October 4, 2023, in Arthur W. Williams, M.D., v. Mountain Sinai Health System, Inc., Index No. 160367/2019, Justice Melissa A. Crane granted Mount Sinai Health System’s motion for summary judgment on claims of racial discrimination asserted by a former attending neurosurgeon. The Court found that the hospital had proffered legitimate, nondiscriminatory reasons for terminating the plaintiff’s employment and staff privileges. It also rejected the plaintiff’s argument that these reasons were pretextual, noting that the record contained evidence of numerous complaints and suggested that the plaintiff’s patient care and medical judgment were questionable. The Court also rejected the plaintiff’s argument about disparate treatment premised on the hospital affording another terminated employee time to find a new job, whereas it had terminated him immediately. The Court explained: Read More
