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Posted: February 22, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Requires Full Disclosure in Business Divorce Action, Rejecting Defendants’ Attempt to Provide Less than All Required Information and Discovery
In a Decision and Order, dated January 30, 2023, in UniLoeb Holdings LLC v. Shamus, Index No. 651136/2022, Justice Andrew Borrok of the New York County Commercial Division denied defendants’ argument that the claims for breach of the Operating Agreement and for an equitable accounting were moot and that it was not required to comply with certain discovery orders because a stay of discovery from non-parties was in place. The Court explained: Read More
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Posted: February 17, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerSanctions, But Not Striking of Pleadings, Warranted for Failure to Properly Produce or Log Privileged Documents
On January 12, 2023, Justice Melissa A. Crane of the New York County Commercial Division issued a decision in Lis v. Lancaster, 2023 N.Y. Misc. LEXIS 182, permitting the plaintiff to make a motion for sanctions in the form of its reasonable attorneys’ fees in making a discovery motion where the opposing party improperly withheld documents pursuant to the attorney-client privilege without properly logging those documents on a privilege log. The Court denied the motion insofar as it asked the Court to strike the defendants’ pleadings pursuant to CPLR 3126. The Court explained: Read More
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Posted: February 15, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerForum Selection Clause Insufficient to Warrant Dismissal Where Litigation Does Not Arise Out of Contract Including Clause
On January 12, 2023, Justice Melissa A. Crane of the New York County Commercial Division issued a decision in Meltzer v. Kentucky Hi Tech Greenhouses LLC, 2023 N.Y. Misc. LEXIS 160, dismissing in part and granting in part defendants’ motion to dismiss. The Court denied the motion insofar as it sought dismissal of the entire action pursuant to CPLR 3211(a)(1) based on a forum selection clause in the defendant’s operating agreement or the forum selection clause in a settlement agreement between the parties. The Court held that neither forum selection clause applied because each related solely to specific issues that were not the issues in the pending action, explaining: Read More
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Posted: February 13, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerOrder Granting Motion to Dismiss Sufficient to Make Party “Prevailing Party”
On January 13, 2023, Justice Andrea Masley of the New York County Commercial Division issued a decision in Parkmerced Invs., LLC v. WeWork Cos. LLC, 2023 N.Y. Misc. LEXIS 213, holding that a party was the “prevailing party” for the purpose of awarding attorneys’ fees pursuant to a contractual provision permitting the award of fees to the prevailing party where it had obtained an order granting its motion to dismiss the claims against it in its entirety. The Court explained: Read More
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Posted: February 10, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerGeneralized Assertions of Good Cause for Sealing or Confidentiality Agreement Insufficient to Seal Court Records
On January 19, 2023, Justice Joel M. Cohen of the New York County Commercial Division issued a decision in International Business Machines Corp. v. GlobalFoundries U.S. Inc., 2023 NY Slip Op 30203(U), holding that a party's "generalized assertions" of good cause and a confidentiality or sealing stipulation were insufficient to permit sealing of court records, explaining: Read More
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Posted: February 8, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCorrespondence Not "Documentary Evidence" When Its Contents Are Not "Essentially Undeniable"
On January 20, 2023, Justice Barry R. Ostrager of the New York County Commercial Division issued a decision in American Challenger Development Corp. v. Credit Suisse AG, Cayman Islands Branch, 2023 NY Slip Op 30219(U), holding that a "Termination Notice" was not "documentary evidence" under C.P.L.R. 3211(a)(1) because its contents were not "essentially undeniable," explaining: Read More
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Posted: February 6, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerFee-Shifting Clause in Contract Does Not Apply to Pre-Suit Fees and Does Not Permit Pre-Judgment Interest Unless Expressly Provided
On January 22, 2023, Justice Melissa A. Crane of the New York County Commercial Division issued a decision in Entech Engineering, P.C. v. Dewberry Engineers Inc., 2023 NY Slip Op 30221(U), holding that the defendant, as prevailing party, was entitled to its attorneys' fees, but refusing to award fees for work done before the lawsuit was filed and refusing to award pre-judgment interest on the amount of the fees, explaining: Read More
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Posted: February 3, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerLicense Agreement Properly Terminated Based On Material Breach
In a Decision and Order, dated January 13, 2023, in Screen Media Ventures, LLC v. Capella International, Inc. Index No. 654358/2012, Justice Andrew Borrok granted Capella International’s motion for summary judgment in its entirety. The Court explained: Read More
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Posted: February 1, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Denies Motion To Vacate Default Judgment
In a Decision and Order, dated January 5, 2023, in Yunjie Frank Yang v. Knights Genesis Group, Index No. 651118/2021, Justice Andrew Borrok denied Defendant’s motion to vacate a default judgment. The Court explained: Read More
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Posted: January 30, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Denies Preliminary Injunction Because Plaintiffs Merely Sought Monetary Relief
In a Decision and Order, dated January 12, 2023, in Benefit St. Partners Realty Operating Partnership, L.P. v. Di Hao Zhang, Index No. 653238/2022, Justice Margaret A. Chan denied Plaintiff’s motion for a preliminary injunction and an attachment. As to the preliminary injunction, Justice Chan concluded that Plaintiffs had not established the identifiable proceeds exception to the general rule that there is no irreparable harm where the injury can be reduced to monetary damages. The Court explained: Read More
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Posted: January 27, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerSummary Judgment Granted Where Defendants Fail to Rebut Prima Facie Case
In a Decision and Order, dated January 5, 2023, in Cline v. Schuster Enters., LLC, Index No. 656167/2021, Justice Joel M. Cohen of the New York County Commercial Division granted plaintiff’s motion for summary judgment where defendants did not rebut evidence that they failed to repay a loan in full by the expiration of the forbearance term. The Court explained: Read More
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Posted: January 25, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerNo Delay Required Before Attorneys Withdraw Where There’s Breakdown of Attorney-Client Relationship
In a Decision and Order, dated July 25, 2022, in Adler v. Mitchell, Index No. 650805/2019, Justice Robert R. Reed of the New York County Commercial Division granted the Order to Show Cause to Withdraw as Counsel filed by defendants’ counsel where defendants had stopped paying counsel’s fees. The Court explained: Read More
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Posted: January 23, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerNon-Specific Assertions that Actions Should be Consolidated Held Insufficient to Shift Burden
In a Decision and Order, dated January 9, 2023, in Youyi Chen v. 215 Chrystie Venture, LLC, Index No. 655908/2020, Justice Robert R. Reed of the New York County Commercial Division denied defendants’ motion for consolidation where one action sounded in pre-contractual tort claims and the other actions involved post-contractual breach of contract claims. Rejecting defendants’ argument that plaintiffs had to show prejudice, the Court explained: Read More
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Posted: January 20, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerPlaintiff Cannot Bring Claim for Rescission Where There was a Meeting of The Minds
On December 20, 2023, Justice Andrew Borrok of the New York County Commercial Division issued a case in Ametek, Inc. v. Goldfarb, 2022 N.Y. Misc. LEXIS 7917, dismissing the defendants’ counterclaim for rescission but denying the motion to dismiss the counterclaim for reformation where the defendants did not dispute that there was a meeting of the minds as to the relevant contract provision but disputed whether the provision in the written contract reflected the agreement of the parties, explaining: Read More
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Posted: January 18, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCompany President Cannot Bring Litigation in Company’s Name Absent Board or Shareholder Approval
On December 28, 2023, Justice Melissa A. Crane of the New York County Commercial Division issued a case in NW Media Holdings Corp. v. IBT Media Inc., 2022 N.Y. Misc. LEXIS 8386, holding that where a closely held company’s by-laws require approval by a majority of the board or shareholders to bring litigation, the president of that corporation does not have the authority to bring litigation in the name of the corporation absent such a vote, explaining: Read More
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Posted: January 13, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerMerger Clause and Express Language in Written Contract Bar Claim Based on Alleged Side Oral Agreement
On December 19, 2022, Justice Melissa A. Crane of the New York County Commercial Division issued a decision in IBT Media, Inc. v. Pragad, 2022 NYLJ LEXIS 2665, dismissing claims based on an alleged side oral agreement to reconvey an asset after that asset was sold because the asset purchase agreement expressly disclaimed a repurchase right and included a merger clause, explaining: Read More
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Posted: January 11, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerSummary Judgment Motion Denied When Movant Failed to Show as a Matter of Law that Nonmovants' Performance Under Contract Was Possible
On December 22, 2022, Justice Robert R. Reed of the New York County Commercial Division issued a decision in J.P. Morgan Ventures Energy Corp. v. Miami Wind I LLC, 2022 NYLJ LEXIS 2667, denying the plaintiff's motion for summary judgment in a contract suit on the ground that, while the defendants had the burden of proving their force-majeure defense, the plaintiff failed to show as a matter of law that defendants' performance was "possible," explaining: Read More
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Posted: January 9, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerProof of Borrower's Bankruptcy Filing Permitted on Motion for Summary Judgment in Lieu of Complaint Against Guarantor
On December 29, 2022, Justice Andrea Masley of the New York County Commercial Division issued a decision in ATX Braker LLC v. Paul, 2022 N.Y. Slip Op. 34427(U), granting a lender's motion for summary judgment in lieu of complaint on a guaranty that was triggered when the borrower filed for bankruptcy, explaining: Read More
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Posted: January 6, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerPlaintiff Stated Claim For Breach Of The Implied Covenant Of Good Faith And Fair Dealing
In an Amended Decision and Order, dated December 3, 2022, in EarthLink, LLC v. Charter Commc’ns Operating, LLC., Index No. 654332/2020, Justice Andrea Masley granted in part and denied in part Defendant’s motion to dismiss Plaintiff’s claim for breach of the implied covenant of good faith and fair dealing based on Defendant’s making false representations to EarthLink’s subscribers and by wrongfully increasing the price of EarthLink’s service to its subscribers. The Court explained: Read More
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Posted: January 4, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerParty May Add Declaratory Judgment Claim Seeking Ruling On Whether Entities Can Be Admitted As LLC Members
In a Decision and Order, dated December 9, 2022, in Bessemer Trust Co., N.A. v. Hart, Index No. 655830/2019, Justice Joel M. Cohen granted Plaintiff’s motion to amend to, inter alia, include a declaratory judgment claim to recognize certain entities’ rights with respect to two LLC’s. The Court explained: Read More
