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Posted: June 2, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCommercial Division Rule 27 Amended to Address Proper Subject of Motions in Limine
On May 15, 2023, the Acting Chief Administrative Judge of the Courts signed an administrative order amending Commercial Division Rule 27 to set a deadline for papers in opposition to motions in limine and to specify the types of evidence to which motions in limine should and should not be addressed. Read More
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Posted: May 26, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Dismisses Claims Because Agreement Expired
In an Opinion, dated May 1, 2023, in Richmond Global Compass Fund Mgt., GP, LLC v. Nascimento, 2023 NY Slip Op 31448(U), Justice Andrew Borrok granted in part defendant’s motion to dismiss. The matter concerned, inter alia, claims for breach of an agreement’s non-competition and non-solicitation provisions. The Court explained: Read More
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Posted: May 24, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Grants Motion To Compel Arbitration
In an Opinion, dated May 2, 2023, in Surgical Specialists of Greater N.Y. v. Aetna, Inc., 2023 NY Slip Op 31479(U), Justice Barry R. Ostrager granted defendants’ motion to compel arbitration. The Court explained: Read More
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Posted: May 22, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Grants Motion To Dismiss Legal Malpractice Claim
In an Opinion, dated May 2, 2023, in Prospect Capital Corp. v. Morgan Lewis & Bockius LLP, 2023 NY Slip Op 31505(U), Justice Margaret A. Chan granted defendant’s motion to dismiss a complaint for legal malpractice. The case concerned the narrowing of a turnover provision in a subordination agreement during the agreement’s negotiation. Plaintiff alleged that defendant failed to detect and inform it of the revision to the turnover provision, which effectively precluded its remedy against a junior lender. Justice Chan rejected defendant’s argument that it could not be held liable since plaintiff was supposed to read and know the contents of the subordination agreement, which it signed, and had its own General Counsel, noting that: Read More
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Posted: May 19, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerMotion to Sever Claims Denied Because Discovery Regarding Liability and Damages May Be Related
In an Opinion, dated April 28, 2023, in ASM Capital, LP v. Four Wood Capital Partners LLC, Index No. 657238/2019, Justice Robert R. Reed denied defendants’ motion to sever and bifurcate plaintiffs’ causes of action for purposes of pre-trial discovery and motion practice. Defendants argued that in this action, where plaintiffs allege that defendants deprived them of the benefit of a business opportunity, discovery for liability and discovery for damages require the production of significantly different evidence. Denying their motion, the Court explained: Read More
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Posted: May 17, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Dismissed Claim to Inspect Books and Records Under BCL § 624 But Not Under Common Law
In a Decision and Opinion on Motion, dated April 12, 2023, in Hafeez v. American Express Co., Index No. 656656/2022, Justice Margaret A. Chan granted defendant’s motion to dismiss plaintiff’s claim for inspection of records that was brought pursuant to BCL § 624 but denied the same motion brought pursuant to common law. Plaintiff, a shareholder of American Express, sought to inspect defendant’s books and records following reports by the Wall Street Journal that American Express was using aggressive and misleading card tactics. The Court explained that, as to the statutory claim: Read More
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Posted: May 15, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerAllegations Sufficient to Support Claim For Breach of Tortious Interference with Contract at Motion to Dismiss Stage, But Not Claims for Tortious Interference with Prospective Business Relations or Unfair Competition
In a Decision and Order on Motion, dated April 17, 2023, in Millennium Consolidated Holdings, LLC v. Bluefin Capital Management, LLC, Index No. 656387/2022, Justice Margaret A. Chan denied defendant’s motion to dismiss the claim for tortious interference with contract or, in the alternative, to stay the action pending a determination from FINRA on a related matter between plaintiffs and the non-party employee, but granted defendant’s motion to dismiss plaintiffs’ claims for tortious interference with prospective business relations and unfair competition. Defendant, a privately-owned multi-strategy trading firm, employed plaintiffs’ former employee who had signed several agreements that subjected him to non-compete and confidentiality obligations. The Court explained while the allegations were sufficient to support a claim for tortious interference with the restrictive covenants in the former employee’s agreements with plaintiffs, the other claims should be dismissed: Read More
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Posted: May 12, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerMotion to Dismiss Improperly Granted Where New York and Colombian Law Differ
In a decision dated April 27, 2023, in ROAM Capital, Inc. v. Asia Alternative Management, LLC, Index No. 651728/2019, First Department Case No. 2022-01318, the First Department unanimously reversed, on the law, the decision of the Motion Court (Jennifer Schecter, J.), which dismissed the supplemental amended complaint (SAC) with prejudice pursuant to CPLR 3211. In reversing the Motion Court’s decision as to the SAC’s claim for breach of contract and other arising out of a “right of first refusal” provision in the applicable agreement, the First Department explained: Read More
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Posted: May 10, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerMotion for Summary Judgment in Lieu of Complaint Properly Granted Despite Additional Performance Obligations by Borrower
In a decision dated May 2, 2023, in BBM3, LLC v. James Vosotas, Index No. 652015/21, First Department Case Nos. 2022-01935 and 2023-00050, the Appellate Division, First Department affirmed the decision by the Motion Court, Andrew Borrok, J., granting plaintiff’s motion pursuant to CPLR 3212 for summary judgment in lieu of complaint. The First Department explained: Read More
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Posted: May 8, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerMotion for Leave to Amend Granted Where no Additional Discovery Needed
On April 5, 2023, Justice Joel M. Cohen of the New York County Commercial Division issued a decision in National Union Fire Insurance Company of Pittsburgh, P.A. Ace American Insurance Company, Index No. 653702/2020. The Court granted Plaintiff National Union’s motion for leave to amend its complaint “to change its claim from breach of the duty good faith and fair dealing under New York law to equitable subrogation under Georgia law.” The Court held that the motion should be granted as the defendant showed no prejudice or surprise from the proposed amendment. The Court explained: Read More
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Posted: May 5, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Denies Motion to Depose Individual As Corporate Representative
In an Opinion, dated April 3, 2023, in Phillips Auctioneers LLC v. Grosso, Index No. 651782/2020, Justice Andrea Masley denied defendant’s motion to depose Nicola Del Roscio as the corporate representative of the Cy Twombly Foundation. The case arose out of a consignment contract between the plaintiff auction house and consignor defendant. The contract provided that plaintiff could withdraw the work at issue if there “is reasonable doubt as to its authenticity, authorship or attribution[]. . .” Plaintiff brought the action to recover an advance, withdrawal fee, and out-of-pocket expenses for the withdrawal of an alleged false artwork by Cy Twombly. Grosso counterclaimed. Grosso deposed David Baum, the Secretary and General Counsel of the Foundation, but argued that he was entitled to depose Del Roscio as well. Grosso claimed that plaintiff’s decision to withdraw the work at issue was principally informed by information from the Foundation and thus Del Roscio’s deposition was necessary. The Court rejected Grosso’s argument, explaining: Read More
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Posted: May 3, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Precludes Party From Introducing Exhibits And Witnesses And Objecting To Admissibility Of Other Party’s Exhibits
In an Opinion, dated March 31, 2023, in Kalamotousakis v. Karp, Index No. 655880/2019, Justice Melissa A Crane granted in part plaintiff’s motion in limine precluding defendants from introducing exhibits and witnesses at trial, as well as from objecting to the admissibility of plaintiff’s trial exhibits, but denied the motion to the extent it sought an order striking defendants’ answer and counterclaims. The Court explained: Read More
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Posted: May 1, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerFirst Department Declines To Dismiss Cause of Action For Specific Performance of LLC Voting Agreement
In a Decision, dated January 24, 2023, in Tsai v. Lo, 212 A.D.3d 547 (1st Dept 2023), the First Department reversed the Motion Court’s dismissal of counterclaims for breach of contract and specific performance based on an alleged oral agreement by plaintiff to consent to both the future sale of the real property purchased by the LLC and/or the future sale of defendants’ interest in the LLC. The First Department explained: Read More
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Posted: April 28, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Denies Motion to Dismiss Aiding and Abetting Conversion
In Decision and Order, dated March 28, 2023, in NW Media Holdings Corp. v. IBT Media, Inc., Index No. 652344/2022, Justice Melissa Crane granted in part and denied in part defendant Etienne Uzac’s motion to dismiss. This blog commented on a separate opinion in this case on April 5, 2023. The case concerned the purchase of Newsweek by plaintiff NW Media Holdings from defendant IBT. Uzac is a founder and owner of IBT, as well as its CEO. Plaintiff brought several causes of action, but as relevant to the aiding and abetting conversion claim, the Court explained: Read More
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Posted: April 26, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Declines To Issue Sanctions For Discovery Violations But Suggests Significant Sanctions Would Follow If Defendant Failed To Comply
In a Decision and Order on Motion, dated March 30, 2023, in Zuckerbrot v. Lande, Index No. 655110/2020, Justice Joel M. Cohen granted in part plaintiffs’ motion concerning various discovery violations by defendant. While noting significant violations, the Court declined, at the current juncture, to impose sanctions, explaining: Read More
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Posted: April 24, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Grants Motion to Dismiss Based On Documentary Evidence
In a Decision and Order on Motion, dated April 4, 2023, in Directional Capital LLC v. Butterfly Equity L.P., Index No. 653741/2022, Justice Andrea Masley granted defendant’s motion to dismiss based on documentary evidence. Plaintiff alleged that defendant violated a non-circumvention provision in the parties’ agreement, claiming it introduced defendant to Qdoba, which defendant subsequently announced it was buying. The Court explained: Read More
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Posted: April 21, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerProjections and Estimates Contained in Investment Memorandum Not Basis for Claim of Fraud or Misrepresentation
In a Decision and Order, dated March 13, 2023, in Cimen v. HQ Capital Real Estate L.P., Index No. 656205/2020, Justice Joel M. Cohen of the New York County Commercial Division dismissed plaintiffs’ amended complaint asserting, among other things, fraud and negligent misrepresentation based on projections and estimates in an investment memorandum because plaintiffs failed to adequately allege that the projections were based on actionable factual misrepresentations or that they did not reflect defendants’ views with the requisite particularity. The Court explained: Read More
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Posted: April 19, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. Turner2022 Annual Report - Commercial Division of NYS Supreme Court
The page of the New York State Unified Court System 2022 Annual Report which describes the Commercia… Read More
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Posted: April 17, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerFirst Department Finds Lower Court Applied Wrong State’s Law to Statute of Limitations and Standing
In a Decision, dated March 30, 2023, in MLRN LLC v. U.S. Bank, NA, 2023 NY Slip Op 01748, the First Department, among other things, (1) reversed the lower court’s denial of defendant’s motion to dismiss causes of action for certain breaches holding that the court should not have found that the claims accrued in New York and were timely under New York’s six-year statute of limitations and (2) reversed the lower court’s granting of plaintiff’s motion for summary judgment finding that court should have applied New York’s choice of law. The Court explained: Read More
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Posted: April 14, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerWhere Foreign Law Applies, Court Must Apply Limitations Period of Foreign Cause of Action Most Closely Analogous to the New York Causes of Action
On March 28, 2023, Justice Joel. M. Cohen of the New York County Commercial Division issued a decision in Andes Petroleum Ecuador Ltd. v. Occidential Petroleum Corp, 2023 N.Y. Misc. LEXIS 1385. In this action, where the claims accrued in Ecuador and thus the Ecuador statute of limitations applied, the Court had previously denied defendant’s motion to dismiss, “finding that [defendant] failed to meet its burden of showing that [plaintiff’s] claims were time-barred under Ecuadorian law.” The First Department reversed and remanded with the instruction that “the Court consider ‘the expert evidence provided by each side concerning what Ecuadorian causes of action are most closely analogous to the New York causes of action’ for fraudulent conveyance.” On remand, the Court held that the most closely analogous Ecuadorian cause of action had a four-year statute of limitations, and that because the claims had been filed more than four years after they accrued, the Court granted the motion to dismiss. The Court explained: Read More
