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Posted: April 12, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerMotion to Compel Arbitration Denied Despite Reference to Arbitration in Forum Selection Clause
On March 28, 2023, Justice Joel M. Cohen of the New York County Commercial Division issued a decision in FFS Data Corp. v. the OLB Group, Inc., 2023 N.Y. Misc. LEXIS 1377. The Court denied the defendant’s motion to compel arbitration based on a dispute resolution provision contained in an asset purchase agreement between the parties. The Court noted that the provision in question “is a marvel of linguistic misdirection”, but ultimately determined that the defendant “has not carried its burden of establishing that the parties had a clear, explicit and unequivocal agreement mandating that they arbitrate disputes arising out of the APA.” The Court explained: Read More
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Posted: April 10, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerUnconditional Guaranty is Instrument for Payment of Money Only Within the Meaning of CPLR 3213 Despite Indemnification Provision
On March 27, 2023, Justice Margaret A. Chan of the New York County Commercial Division issued a decision in HCC Insurance Holdings, Inc. v. Athenium Analytics LLC, 2023 N.Y. Misc. LEXIS 1317. The Court held that an unconditional guaranty on a note was an instrument for the payment of money only within the meaning of CPLR 3213, even where the guarantee, in the preamble and within a provision providing for indemnification, including the word “performance.” The Court explained: Read More
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Posted: April 7, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerArbitral Award Confirmed Over Objection That Arbitrators Effectively Rewrote Force Majeure Clause
On March 27, 2023, Justice Margaret A. Chan of the New York County Commercial Division issued a decision in GFK US MRI, LLC v. LHK Partners, Inc., 2023 NY Slip Op 30969(U), confirming an arbitral award over an objection that the arbitration panel violated public policy, relied on a force majeure clause not addressed by the parties, and effectively rewrote the parties' force majeure clause, explaining: Read More
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Posted: April 5, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerConversion Claim Upheld Despite Dispute Over Whether Plaintiff Was "Exclusive" Owner of Allegedly Converted Property
On March 22, 2023, Justice Melissa A. Crane of the New York County Commercial Division issued a decision in NW Media Holdings Corp. v. IBT Media Inc., 2023 NY Slip Op 30875(U), holding that to state a conversion claim, a plaintiff need not allege that it was the "exclusive" owner of the allegedly converted property, even though plaintiff did plead exclusive ownership here, explaining: Read More
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Posted: April 3, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerAgreement That Referenced Arbitration and Litigation Was Not a Clear, Explicit, and Unequivocal Agreement to Arbitrate
On March 28, 2023, Justice Joel M. Cohen of the New York County Commercial Division issued a decision in FFS Data Corp. v. The OLB Group, Inc., 2023 NY Slip Op 30968(U), holding that an asset purchase agreement that referenced both arbitration and litigation of claims, which the court described as a "marvel of linguistic misdirection," did not include a clear, explicit, and unequivocal agreement mandating arbitration, explaining: Read More
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Posted: March 29, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerAssignment Was Not Champertous
In a Decision and Order, dated March 1, 2023, in IKB Int’l S.A. v. Morgan Stanley, Index No. 653964/2012, Justice Melissa Crane granted in part and denied in part Morgan Stanley’s motion for summary judgment. Schlam Stone & Dolan LLP represents Plaintiffs in this action. Morgan Stanley argued, inter alia, that the assignment of claims to IKB AG was champertous. The Court rejected this argument, explaining: Read More
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Posted: March 27, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerRecently Completed Assignment Sufficient For Standing At Pleading Stage
In a Decision and Order on Motion, dated March 7, 2023, in Finitive LLC v. Pattelli, Index No. 155024/2022, Justice Barry R. Ostrager granted in part and denied in part Defendants’ motion to dismiss. In denying that portion of Defendants’ motion to dismiss which argued that Plaintiffs, including Private Brokers LLC (“PB”), lacked standing, the Court explained: Read More
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Posted: March 24, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerLawyer’s “Good Faith” Judgment Call Invalid Defense to Violating Court Order
In a Decision and Order, dated January 17, 2023, in Silverstein v. Borukhin, Index No. 650418/2021, Justice Jennifer Schecter of the New York County Commercial Division ordered plaintiff’s counsel to pay sanctions for advising his expert that it was acceptable to photograph source code for use in his report without first seeking or obtaining defendants’ consent or court approval as required. The Court explained: Read More
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Posted: March 22, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerFee Shifting Provision in Partnership Agreement Cost Plaintiff Over $750,000
In a Decision and Order, dated February 17, 2023, in Gibbs v. Holland & Knight, LLP, Index No. 159345/2014, Justice Andrew Borrok of the New York County Commercial Division denied a former partner’s motion to vacate the arbitrator’s award of attorneys’ fees and costs to defendant law firm and granted defendant’s cross-motion to confirm the final award even though plaintiff prevailed on one discrete issue in the arbitration. The Court explained: Read More
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Posted: March 20, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerFormer Employee Entitled to Sever Claims Awarded on Summary Judgment
In a Decision and Order, dated February 21, 2023, in Baker v. Waller Capital Corp., Index No. 655859/2017, Justice Joel M. Cohen of the New York County Commercial Division granted plaintiff’s motion to sever the claims awarded on summary judgment so that he may begin to collect the amounts awarded as guaranteed payments pursuant to his employment agreement. The remainder of claims would proceed to trial. The Court explained: Read More
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Posted: March 17, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerAttorneys’ Fees Award Reasonable Based on Work Completed and Result Achieved
On February 14, 2023, Justice Margaret Chan of the New York County Commercial Division issued a decision in Pacific Premier Bank v. HNI, LLC, 2023 N.Y. LEXIS 647, confirming the report and recommendation of Special Referee Jeremy R. Feinberg awarding plaintiff nearly $1 million in attorneys’ fees and costs incurred in the litigation pursuant to a contractual provision. The Court explained: Read More
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Posted: March 15, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerMotion for Summary Judgment Premature After Grant of Motion to Compel
On February 21, 2023, Justice Joel M. Cohen of the New York County Commercial Division issued a decision in Ninth Space LLC v. Goldman, 2023 N.Y. Misc. LEXIS 706, holding that a motion for summary judgment was premature where a recent Appellate Division decision in the case had necessitated reopening discovery into certain aspects of the case and after the court had granted a motion to compel that discovery. The Court explained: Read More
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Posted: March 13, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerMotion to Amend Granted When Not Palpably Insufficient and Would Not Impact Upcoming Trial Date
On February 21, 2023, Justice Joel M. Cohen of the New York County Commercial Division issued a decision in Baker v. Waller Capital Corp., 2023 N.Y. Misc. LEXIS 709, granting plaintiff’s motion to amend in part to add claims for fraudulent conveyance and conversion against certain defendants. The Court explained: Read More
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Posted: March 10, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerAdditional Discovery and Lengthier Litigation Not Prejudice Sufficient to Defeat Motion for Leave to Amend
On February 15, 2023, Justice Melissa A. Crane of the New York County Commercial Division issued a decision in State of N.Y. ex rel. Phone Administrative Services, Inc. v. Verizon N.Y., Inc., 2023 NY Slip Op 30473(U), granting plaintiff leave to amend and rejecting defendants' arguments that additional discovery and lengthier litigation constituted prejudice, explaining: Read More
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Posted: March 9, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerFirst Party's Failure to Perform "On Behalf of" Second Party, As Required By Contract, Is Not a Default By Second Party
On February 23, 2023, Justice Andrew Borrok issued a decision in Citibank, N.A. v. N/A, 2-23 NY Slip Op 30559(U), holding that a party to a contract (Party B) does not breach that contract when a different party (Party A), which is obligated to perform "on behalf of" the former party (Party B), fails to perform, explaining: Read More
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Posted: March 6, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerHon. Joel M. Cohen Seeks Law Clerk
Justice Joel M. Cohen of the New York County Commercial Division is seeking a new law clerk, commencing in September 2023. This is a one-year position, though can be renewed twice at the judge's discretion. Interested applicants can view the official job posting, which includes instructions on how to apply, by clicking on this link. Read More
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Posted: March 3, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Grants Motion To Dismiss Negligence Claims Against Bank
In a Decision and Order, dated January 10, 2023, in Q3 Inv. Recovery Veh. LLC v. McEvoy, Index No. 657090/2020, Justice Andrea Masley granted Signature Bank’s motion to dismiss the amended complaint against it. Plaintiff had alleged that Signature was negligent and grossly negligent for permitting investor funds deposited into an account at Signature to be fraudulently transferred out of the account rather than invested in a cryptocurrency exchange. Noting that under New York law banks do not usually owe non-customers a duty to protect them from the intentional torts of their customers, the Court noted there was an exception for trust accounts or fiduciary accounts. The Court explained: Read More
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Posted: March 1, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerPlaintiffs Precluded From Using Evidence Of Alleged Fraudulent Transfers As Proof Of Consciousness of Guilt
In a Decision and Order, dated January 27, 2023, in Beach v. Touradji Capital Mgmt, LP, Index No. 603611/2008, Justice Andrea Masley granted Defendant’s motion to preclude Plaintiffs from offering evidence and testimony regarding distributions made between 2012 and 2018 that were the subject of a separate lawsuit. The Court explained: Read More
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Posted: February 27, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerDead Man’s Statute Does Not Preclude Evidence Concerning Disputed Agreements On Summary Judgment
In an Opinion, dated January 24, 2023, in 35 W. Realty, LLC v. Booston, LLC, Index No. 653674/2015, Justice Margaret A. Chan denied Plaintiff’s in limine motion to preclude evidence concerning disputed agreements based upon CPLR § 4519, also known as the Dead Man’s Statute. The Court explained: Read More
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Posted: February 24, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerConversion Claim Withstands Motion to Dismiss Even Though Plaintiffs Plead Alternate Arguments About Transferred Funds
In a Decision and Order, dated January 31, 2023, in Hieber Astoria, LLC v. Taverna, Index No. 650793/2022, Justice Andrew Borrok of the New York County Commercial Division denied Mr. Taverna’s motion to dismiss the conversion claim against him even though plaintiffs took the position that the funds which were taken from their entity and transferred to another entity were either converted or should be treated as their capital contributions in the new entity. The Court explained: Read More
