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Posted: October 4, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerRescissory Damages Unavailable Absent Privity
On September 14, 2023, Justice Jennifer G. Schecter of the New York County Commercial Division issued a decision after trial in Han v Kwak, Index No. 654281/2018, 2023 NY Slip Op 33207(U), entering “judgement in favor of defendant Robert Kwak despite evidence clearly and convincingly proving that he defrauded her.” The Court held that the claims for recission or rescissory damages against defendant Kwak could not stand because he was not “her contractual counterparty.” The Court explained: Read More
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Posted: October 2, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerService of Process Not Proper on Party’s Attorney Absent Express Authorization from Party
On September 15, 2023, Justice Joel M. Cohen of the New York County Commercial Division issued a decision in Credit Europe Bank (Dubai) Ltd. v Shetty, Index No. 651931/2023, 2023 NY Slip Op 33204(U) denying the plaintiff’s motion for summary judgment in lieu of complaint based on improper service of process. The Court held that, despite an affidavit from an attorney representing the defendant in another action that he was authorized to accept service on behalf of that defendant in this action, plaintiff had failed to show proper service of process because that attorney was not attorney-of record in the underlying action, and because there was no evidence that the defendant had authorized that attorney to accept process on its behalf. The Court explained: Read More
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Posted: September 15, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Concludes That Plaintiff Alleged Willful Misconduct
In an Opinion, dated June 26, 2023, in Manhattan Chrystie St. Dev. Fund LLC v. Witkoff Group LLC, 2023 NY Slip Op 50622(U), Justice Robert Reed denied Defendants’ motions to dismiss a breach of guaranty claim. Plaintiff brought a claim for breach of a guaranty that assured Plaintiff payment and performance of certain obligations in the event of ‘willful misconduct’ by the managing member of a joint venture. The Court explained: Read More
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Posted: September 13, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Finds Plaintiff Has Stated Claim To Pierce The Corporate Veil
In an Opinion dated June 29, 2023, in Emigrant Bus. Credit Corp. v. Hanratty, 2023 NY Slip Op 32156(U), Justice Margaret Chan denied Defendant’s motion to dismiss a corporate veil piercing claim. The Court explained: Read More
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Posted: September 11, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Grants Motion to Dismiss Because Notice Of Non-Monetary Default Not Required
In a Decision and Order, dated June 14, 2023, in 10 Mountainview LLC v. RREF IV-D SN Portfolio, LLC, 2023 NY Slip Op 32034(U), Justice Melissa A. Crane granted Defendant’s motion to dismiss Plaintiff’s breach of contract action based on the claimed failure by Defendant to provide notice of a non-monetary default. Plaintiff and Defendant both loaned money to a non-party borrower, and agreed that Defendant’s loan would be senior. An event of default occurred in 2020, but Defendant did not give notice, and gave notice only when it intended to accelerate its loan. Plaintiff, who had a purchase option, attempted to exercise that option and received a pay-off letter including default interest going back to the date of the earliest default. Plaintiff claimed it was aggrieved because it could have cured the default years earlier and avoided the default interest. The Court explained: Read More
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Posted: September 1, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Compels Deposition of Individual with Unique Personal Knowledge of Critical Factual Issues
On July 3, 2023, Justice Andrew Borrok of the New York County Commercial Division issued a decision in Apotex Corp. v. Hospira Healthcare India Private Ltd., 2023 N.Y. Misc. LEXIS 3340, granting defendants’ motion to compel the plaintiff to produce a specific individual for a deposition. The Court had previously denied a motion seeking the same relief without prejudice as premature. The Court now determined that the defendants had sufficiently shown that the individual possessed unique personal knowledge that other deponents and discovery had not been able to provide, explaining: Read More
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Posted: August 30, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Denies Motion to Dismiss on Statute of Limitations Grounds
On June 30, 2023, Justice Margaret Chan of the New York County Commercial Division issued a decision in Murphy v. PHG Funding LLC, 2023 N.Y. Misc. LEXIS 3327, denying the defendants’ motion to dismiss on statute of limitations grounds. Specifically, the Court rejected the defendants’ argument that the three-year statute of limitations found in the recently enacted Consumer Credit Fairness Act (“CCFA”) applied, holding that because the action was brought before the passing of the CCFA and there was no showing that the New York legislature intended the CCFA to apply retroactively, the standard six-year statute of limitations for a breach of contract action applied. The Court explained: Read More
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Posted: August 28, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerAllegations of Domination and Control Sufficient to Survive Motion to Dismiss on Veil Piercing Claims
On June 22, 2023, Justice Andrew Borrok of the New York County Commercial Division issued a decision in Hieber Astoria LLC v. Taverna, 2023 NYLJ LEXIS 1486, denying the motion to dismiss brought both by the entity defendants as well as the individual defendant. As to the individual defendant, the Court held that “the well-plead [Amended Complaint] alleges sufficient facts, which taken as true as the Court must, are sufficient to pierce the corporate veil and hold Mr. Taverna personally liable.” The Court further explained: Read More
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Posted: August 25, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerDefendants' Answer Stricken for Failure to Comply With Discovery Orders
On July 10, 2023, Justice Joel M. Cohen of the New York County Commercial Division issued a decision in Kaiping Hong-Ri Garment Co. Ltd. v. Goldfarb, 2023 NY Slip Op 32459(U), striking defendants' answer and entering a default judgment because of defendants' failure to comply with the court's discovery orders, explaining: Read More
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Posted: August 23, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerSubstantive Time Entries in Attorney Invoices Not Privileged
On July 13, 2023, Justice Robert R. Reed of the New York County Commercial Division issued a decision in Mehra v. Morrisson Cohen LLP, 2023 NY Slip Op 50714(U), holding that substantive time entries in attorney invoices were not privileged and had to be produced by plaintiffs seeking attorneys' fees as part of their damages, explaining: Read More
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Posted: August 18, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Grants Motion To Compel Arbitration
In a Decision and Order, dated June 21, 2023, in Employers Ins. Co. of Wausau v. Dominion Ins. Receivable LLC, NY Slip Op. 32097(U), Justice Margaret Chan granted Respondents’ cross-motion to compel arbitration and denied Petitioner’s motion to stay arbitration. The Court explained: Read More
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Posted: August 16, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Grants Sanctions For Conduct At Deposition
In an Opinion dated June 20, 2023, in Constantina Bacopoulou DDS PC v. Carnegie Dental PC, Index No. 650010/2022, Justice Andrea Masley granted Plaintiffs’ motion for sanctions against defendants for conduct during a deposition. Justice Masley concluded that defendants’ counsel violated Rules of Professional Conduct 8.4(g), which prohibits lawyers from engaging in conduct that constitutes discrimination or harassment on the basis of, inter alia, sex and Commercial Division rules barring speaking objections at depositions. The Court further appointed a special referee and directed the attorneys, who the Court found contributed to the delay and acrimony in the case, and not the clients, to split the referee’s fees 25% (plaintiffs’ counsel)-75% (defendants’ counsel). As to Defendants’ counsel conduct at the deposition, the Court explained: Read More
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Posted: August 14, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Grants Summary Judgment In Lieu Of Complaint
In a Decision and Order, dated June 23, 2023, in 2025 Note Pool LLC v. Rudich, 2023 NY Slip Op 32092(U), Justice Melissa A. Crane granted Plaintiff’s unopposed motion for summary judgment in lieu of complaint pursuant to CPLR § 3213. The Court explained: Read More
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Posted: August 11, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerLeave to Renew or Reargue Denied Where “New Facts” Always Known or Caused By the Movant
On July 5, 2023, Justice Andrew Borrok of the New York County Commercial Division issued an opinion in Talos Capital Designated Activity Co. v. 257 Church Holdings LLC, 2023 NY Slip Op 50662(U), denying a party’s motion for leave to renew and/or reargue the Court’s Decision and Order, dated June 6, 2023 as clarified by the Supplemental Order, dated June 13, 2023, because the motion—which must be based on matters of fact or law—was based on two false premises. The Court explained: Read More
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Posted: August 9, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Granted Motion for Reargument and Modified Preliminary Injunction To Include Defendant Company to Whom Defendant Employee Disclosed Confidential Information
On June 20, 2023, Justice Barry R. Ostrager of the New York County Commercial Division issued a decision and order on motion in Jordan, Edmiston Group, Inc. v. Wong, 2023 NY Slip Op 32090(U), granting in part the motion for reargument. The Court had previously granted a limited injunction against defendant employee for breaching the non-disclosure provision of the Employee Confidentiality and Non-Competition Agreement by disclosing confidential information to defendant company. The motion for reargument related to plaintiff’s claim for tortious interference by defendant company. The Court explained: Read More
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Posted: August 7, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerArbitrators’ Refusal to Grant An Adjournment Insufficient Grounds to Vacate Final Award
On June 23, 2023, Justice Joel M. Cohen of the New York County Commercial Division issued a decision and order on motion in Panzer v. Epstein, 2023 NY Slip Op 32099(U), granting respondent’s motion to confirm and denying petitioner’s cross-motion to vacate the Final Award. The Court also denied respondent’s motion to compel petitioner to accept the money amount specified in the Final Award as premature. Regarding its decision to confirm the Final Award, the Court explained: Read More
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Posted: August 4, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Confirms Arbitration Award Where Challenging Party Failed to Meet Heavy Burden
On June 23, 2023, Justice Robert R. Reed of the New York County Commercial Division issued a decision in Grayco Alternative Partnership II, LP v. 5 Stone Green Capital LLC, 2023 N.Y. Misc. LEXIS 3024. The Court granted Plaintiff’s motion pursuant to CPLR 7510 to confirm an arbitration award in their favor, finding that the Defendants had failed to meet their “heavy burden” necessary to vacate the award. The Court explained: Read More
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Posted: August 2, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Rejects Successive Summary Judgment Motions
On July 12, 2023, Justice Andrea Masley of the New York County Commercial Division issued a decision in 600-602 10th Ave. Realty Corp. v. Estate of Nusimow, 2023 N.Y. Misc. LEXIS 3465. The Court denied the Plaintiff’s motion for summary judgment, primarily on the basis that the same Plaintiff had moved for summary judgment on the same claims six years prior, which the Court had denied, finding issues of fact existed. The Court explained: Read More
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Posted: July 31, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Grants Attachment Where Defendant Foreign Corporation Sent Funds Abroad
On June 15, 2023, Justice Andrew Borrok of the New York County Commercial Division issued a decision in Altium Growth Fund, L.P. v. Tingo Group, Inc., 2023 N.Y. Misc. LEXIS 2999. The Court granted Plaintiffs’ motion for an attachment pursuant to CPLR 6201(1), attaching shares in the Defendant Company. The Court found that Plaintiffs had shown a likelihood of success on the merits, and further found that grounds for an attachment pursuant to CPLR 6201 exists, explaining: Read More
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Posted: July 28, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerMember of Syndicate That Loaned Money for New York Real-Estate Project Subject to Personal Jurisdiction in New York
On June 14, 2023, Justice Barry R. Ostrager of the New York County Commercial Division issued a decision in MREF REIT Lender 2 LLC v. FPG Maiden Holdings, LLC, 2023 NY Slip Op 32001(U), denying a defendant Israeli banking corporation's motion to dismiss for lack of personal jurisdiction because the defendant was a member of a lending syndicate for a loan related to a real-estate project in lower Manhattan, explaining: Read More
