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Posted: December 30, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerAcknowledgement of Conflict Insufficient to Support Claim for Disgorgement of Fees
In a Decision and Order, dated December 8, 2022, in Marcum LLP v. L’Abbate, Balkan, Colavita & Contini, L.L.P., Index No. 151586/2021, Justice Joel Cohen of the New York County Commercial Division, among other things, dismissed plaintiff’s claim to recover legal fees paid in connection with allegedly negligent work but not plaintiff’s claim for compensation for its increased legal expenses arising out of defendant law firm’s late withdrawal as counsel. The Court explained: Read More
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Posted: December 28, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerAllegations of Adverse Employment Action After Employee Resigned May Support Retaliation Claim
In a Decision and Order, dated November 28, 2022, in Ja Kao v. Onyx Renewable Partners L.P., Index No. 654411/2021, Justice Margaret Chan of the New York County Commercial Division granted plaintiff who asserted claims for, among other things, retaliation under New York State Human Rights Law and New York City Human Rights Law leave to amend her complaint against certain defendants to fix a prior deficiency and allege a causal connection between the asserted protected activity and the alleged adverse employee action taken after she submitted her notice of resignation. The Court explained: Read More
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Posted: December 16, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. Turner"Confidential" Documents in Article 75 Proceeding Permitted to Be Sealed
On December 6, 2022, Justice Joel M. Cohen of the New York County Commercial Division issued a decision in Metropolitan Transportation Authority v. Westfield Fulton Center, 2022 N.Y. Slip Op. 34112(U), holding that confidential documents submitted in connection with an arbitration could be filed under seal in an Article 75 proceeding, explaining: Read More
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Posted: December 14, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerPlaintiff Can Cure Standing Defect After Suit Commenced
On October 13, 2022, Justice Margaret A. Chan of the New York County Commercial Division issued a decision in Park Royal I LLC v. HSBC Bank USA, N.A., 2022 N.Y. Slip Op. 33501(U), denying defendant's motion for leave to reargue and declining to dismiss a suit brought by a plaintiff that lacked standing at the time of suit on the ground that plaintiff later cured this standing defect, explaining: Read More
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Posted: December 12, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerMerger and No-Additional-Representations Clause Bars Claim for Fraudulent Inducement
On November 29, 2022, Justice Barry Ostrager of the New York County Commercial Division issued a decision in Eastern Effects v. 3911 Lemmon Ave. Assoc., 2022 N.Y.L.J. LEXIS 2408, dismissing a fraudulent inducement claim on the ground that it was barred by a merger and no-additional-representations clause, explaining: Read More
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Posted: December 9, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Grants Motion To Dismiss Individuals Due To Lack of Personal Jurisdiction
In an Opinion, dated October 25, 2022, in Cortlandt St. Recovery Corp. v. TPG Capital Mgt., L.P., Index Number 65117618/2017, Justice Robert R. Reed granted, inter alia, individual defendants’ motions to dismiss for lack of personal jurisdiction. Plaintiff had brought the action regarding promissory notes known as “floating rate subordinated notes due 2015” issued by a nonparty shell company. The Court rejected Cortlandt’s argument that it had jurisdiction over the individuals under an alter ego theory and the closely-related doctrine. The Court explained: Read More
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Posted: December 7, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Grants Company’s Motion To Deny COO Indemnification
In a Decision and Order, dated November 7, 2022, in Iconix Brand Group v. Horowitz., Index No. 650726/2022, Justice Barry R. Ostrager granted, in significant part, plaintiff’s motion for a declaration that it is not required to indemnify its former COO for any fees incurred in connection with criminal and SEC investigations arising out of financial and accounting issues that arose while defendant was the COO of plaintiff. The Court explained: Read More
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Posted: December 5, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Enjoins Club Operator From Playing Amplified Music
In a Decision, dated November 7, 2022, in 42 W. Group v. 510 W42 Hotel Operating LLC, Index No. 652713/2022, Justice Joel Cohen granted a preliminary injunction in a commercial landlord tenant proceeding to prohibit plaintiff from using amplification devices that would make sound audible from outside of the premises, in accordance with the terms of the commercial lease between defendant and plaintiff. The Court set the undertaking required for the preliminary injunction at $10,000, explaining: Read More
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Posted: December 2, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerUnjust Enrichment Claim Dismissed Due to Lack of a Sufficient Relationship Between the Parties
In a Decision and Order, dated August 15, 2022, in Arel Capital Partners II LLC v. HFZ RES Portfolio Holdings LLC, Index No. 653727/2021, Justice Andrew Borrok of the New York County Commercial Division dismissed, among other claims, causes of action for unjust enrichment and constructive trust against JP Morgan Chase Bank N.A. based on repayment of a loan JPM made to parties who allegedly breached an agreement with plaintiff. The Court explained: Read More
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Posted: November 30, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Resolved Contractual Ambiguity and Awarded Damages to Give Plaintiff Benefit of the Bargain
In a Decision and Order, dated August 22, 2022, in 57th & 60th St. Lender LLC v. State Bank of Tex., Index No. 654007/2018, Justice Jennifer Schecter of the New York County Commercial Division found the phrase “repaid in full” in a mortgage loan sale agreement to be ambiguous and, after holding a bench trial, resolved that ambiguity in favor of plaintiff and awarded damages in the amount plaintiff would have recovered on the loans had the agreement not been breached plus interest and attorneys’ fees. The Court explained: Read More
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Posted: November 28, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Abused Discretion by Going Beyond Four Corners of Complaint to Permit Amendment with Time-Barred Claim
In a Decision, dated October 27, 2022, in 34-06 73, LLC v. Seneca Ins. Co. (2022 NY Slip Op 06029), the Court of Appeals held that the lower court abused its discretion as a matter of law when it granted plaintiffs’ motion to amend to include a time-barred claim. The Court explained: Read More
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Posted: November 23, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCommon-Law Indemnification Crossclaim Should Be Dismissed Where Duty to Comply Was Not Delegable
On November 10, 2022, Justice Borrok of the New York County Commercial Division issued a decision in 85 Jane Realty, LLC v. Xhema of N.Y., Inc., 2022 NY Slip Op 33838(U) holding that a crossclaim for common law indemnification must be dismissed when the duty allegedly violated was not delegable. Read More
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Posted: November 21, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerBusiness Judgment Rules Shields Managing Member From Liability for Breach of Fiduciary Duty
On October 4, 2022, Justice Cohen of the New York County Commercial Division issued a decision in Greenman v. Miller, et al., 2022 NY Slip Op 33355(U) holding that summary judgment was appropriate on a breach of fiduciary duty claim where the defendant was the company’s managing member and was therefore protected under the business judgment rule. Read More
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Posted: November 18, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerNo Account Stated Claim in Absence of Underlying Agreement
On November 3, 2022, Justice Robert R. Reed of the New York County Commercial Division issued a decision in AmTrust North America, Inc. v. Share, 2022 N.Y. Slip Op. 51081(U), dismissing a claim for account stated in the absence of an underlying contract, explaining: Read More
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Posted: November 14, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerOwners' Domination and Abuse of Entity to Perpetrate a Wrong or Injustice on Plaintiffs Sufficient to Pierce Corporate Veil
On November 2, 2022, the Second Department issued a decision in F&R Goldfish Corp. v. Furleiter, 2022 N.Y. Slip Op. 06112, holding that plaintiffs alleged facts sufficient to pierce the corporate veil, explaining: Read More
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Posted: November 11, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Denies Motion To Set Aside Jury Verdict
In an Opinion, dated October 1, 2022, in 30-32 W. 31st LLC v. Heena Hotel LLC, Index Number 651918/2012, 2022 NYLJ LEXIS 1774, Justice Joel M. Cohen denied both parties’ motions for post-trial relief. The Court explained: Read More
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Posted: November 9, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Denies Motion To Seal Documents From Public View
In an Opinion, dated October 24, 2022, in Bravia Capital H.K. v. HNA Group Co., 2022 NY Slip Op 51039(U), Justice Robert R. Reed denied withdrawing counsel’s motion to permanently seal the documents filed in support of withdrawal. The Court explained: Read More
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Posted: November 7, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerPlaintiff Did Not Allege Violation Of The Securities Act of 1933
In an Opinion, dated October 24, 2022, in Lorenzo v. Bluecity Holdings Ltd, Index No. 652894/2021, 2022 NYL Slip Op 51055(U), Justice Andrew Borrok dismissed Plaintiff’s amended complaint which asserted causes of action under the Securities Act of 1933 in connection with the Defendant’s IPO. The Court explained: Read More
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Posted: November 4, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerArbitration Permanently Stayed by Order to Show Cause After JAMS Was Ready to Proceed to the Selection of Arbitrator
In a Decision and Order, dated August 24, 2022, in Allyance Media Grp., Inc. v. Acker Family 2016 Gift Trust (2022 NY Slip Op 32888(U)), Justice Chan of the New York County Commercial Division held that CPLR 7503 did not bar a party whose counsel submitted letters to JAMS from applying for a stay more than twenty days after it received notice of the intention to arbitrate because the letters to JAMS stated its position that JAMS is not empowered to determine the threshold issue of arbitrability and the notice of intention to arbitrate did not include the requisite language of CPLR 7503(c). The Court explained: Read More
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Posted: November 2, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerOpportunity to Comment on Proposed Change to Commercial Division Rules Regarding Virtual Evidentiary Hearings and Bench Trials
The Office of Court Administration has asked for public comment on the Commercial Division Advisory … Read More
