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Posted: October 31, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerFee Shifting Between Partners Denied Without “Unmistakably Clear” Language of Intent
In a decision dated October 20, 2022, in Sage Systems, Inc. v. Liss, 2022 NY Slip Op 05918, the New York Court of Appeals reversed the Appellate Division and rejected plaintiff’s argument that a broad, unrestrictive indemnification provision in the partnership agreement entitled it to attorney’s fees related to direct claims between the partners. The Court explained: Read More
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Posted: October 28, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerForum Selection Clause in Articles of Incorporation Is Valid Despite Dispute Over Meaning of Translation from German
On August 19, 2022, Justice Chan of the New York County Commercial Division issued a decision in Cattan v. Vasella, 2022 NY Slip Op 32814(U) holding that a forum selection clause requiring that the dispute be resolved in Switzerland was valid despite the interpretation of the German translation of portions of the clause implying that it did not govern disputes between the corporation and a corporate officer or director. Read More
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Posted: October 26, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerLabor Law § 240(1) Imposes Absolute Liability on Contractors Who Fail to Provide Proper Protections to Workers on Construction Sites
On August 15, 2022, Justice Chan of the New York County Commercial Division issued a decision in Jaramillo v. Port Auth. of N.Y. & N.J., 2022 NY Slip Op 32745(U) holding that summary judgment was appropriate under Labor Law § 240(1) where a construction worker fell from a ladder and did not have adequate protection to protect him from injuries. Read More
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Posted: October 24, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerDefendant Has Standing to Challenge Subpoena to Non-Party Insurance Company Where Records Relate to Insurance Transactions
On August 25, 2022, Justice Chan of the New York County Commercial Division issued a decision in Ohi Asset (NY) 93rd St., LLC v. Consigli Constr. Co., Inc., 2022 NY Slip Op 32908(U) holding that a defendant had standing to challenge document subpoenas issued to a non-party insurance company where the documents at issue related to the defendant’s financial insurance purchase transactions. Read More
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Posted: October 21, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerTransfer to Commercial Division Denied Because Case Was Related to Pending Non-Commercial Case
On October 19, 2022, Justice Adam Silvera, New York County Administrative Judge, issued a decision in People v. Trump, Index No. 452564/2022, holding that this suit was properly assigned to Justice Arthur F. Engoron because he is presiding over a separate, "related" special proceeding that has not yet been marked as disposed, but further holding that, under section 202.70(e) of the Commercial Division Rules, Justice Engoron could still decide that the new case is not "related" to the prior one and request that the new case be transferred to the Commercial Division, explaining: Read More
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Posted: October 19, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerParty Must Produce Deponents for Supplemental Depositions Following Late Disclosure of New Evidence
On October 4, 2022, Justice Andrew S. Borrok of the New York County Commercial Division issued a decision in 39 West 23rd Street, LLC v. Pizzarotti, LLC, 2022 N.Y. Slip Op. 33356(U), ordering a party to produce its deponents for supplemental depositions, at that party's cost, when that party amended its interrogatory responses concerning its damages after these deponents' depositions already took place, explaining: Read More
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Posted: October 17, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerYellowstone Injunction Motion Denied Because Tenant Failed to Show Ability to Cure
On September 28, 2022, Justice Andrea Masley of the New York County Commercial Division issued a decision in Urban Commons 2 W. LLC v. Battery Park City Authority, 2022 N.Y. Slip Op. 33268(U), denying a commercial tenant's motion for a Yellowstone inunction on the ground that the tenant failed to show that it had funds available to cure its default in the payment of rent if the landlord prevailed in the action, explaining: Read More
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Posted: October 14, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerNotice Of Motion For Subpoena To Department Of Design and Construction of New York City Must Be Given To New York City
In an Opinion, dated September 29, 2022, in Lastinc, LLC v. AECOM USA, Inc., 2022 NY Slip Op 50958(U), Justice Robert R. Reed denied Plaintiff’s request, without prejudice, for the issuance of a judicial subpoena because plaintiff had failed to serve the motion on the City of New York even though the records sought fell within the ambit of CPLR 2307. The Court explained: Read More
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Posted: October 12, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerDecision In Prior Case Between The Parties Barred Most Of Plaintiff’s Claim
In an Opinion, dated September 26, 2022, in Five Star Elec. Corp. v. Silverite Constr. Co., 2022 NY Slip Op 50899(U), Justice Robert R. Reed held that a prior decision by Justice Cohen in a different dispute between the parties barred substantially all of Five Star’s claim. The Court explained: Read More
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Posted: October 10, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerLLC Managing Member Did Not Breach Fiduciary Duty In Diverting Investment Opportunity To Another Company
In a Decision After Trial, decided September 20, 2022, in Shatz v. Chertok, Index No. 655620/2018, 2022 NYLJ LEXIS 1635, Justice Jennifer Schecter held that the defendant managing member of an LLC did not breach his duty to the plaintiff non-managing member when he failed to present an opportunity to invest in a company known as Ripple Labs, Inc. The Court explained: Read More
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Posted: October 7, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerVenue Cannot be Based on Domicile of Party Added to Action
On September 26, 2022, Justice Robert R. Reed of the New York County Commercial Division issued a decision in Ahlin v. Lehr, Index No. 155191/2021, granting defendant’s motion for a change of venue from New York County to Westchester County, notwithstanding that the principal place of business of one of the parties was New York County because it was not a party when the action was commenced. The Court explained: Read More
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Posted: October 5, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerGood Cause to Seal Documents Turns on Answers to Deposition Questions
On September 5, 2022, Justice Andrea Masley of the New York County Commercial Division issued a decision in BDO United States v. Franz, Index No. 652816/2020, granting in part and denying in part a renewed motion to permanently seal court documents containing interviews of former employees about the development of proprietary tools in an action for breach of their employment contracts, explaining: Read More
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Posted: October 3, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerUnopposed Motion for Judicial Subpoena Denied for Failure to Comply with CPLR 2307
On September 6, 2022, Justice Robert R. Reed of the New York County Commercial Division issued a decision in 63rd & 3rd NYC LLC v. Starr Indemnity & Liability Co., Index No. 650395/2020, denying, without prejudice, a motion, that was unopposed, requesting that the court issue a judicial subpoena directing a governmental department to produce documents because the movant failed to comply with the motion requirements of CPLR 2307. The Court explained: Read More
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Posted: September 30, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerSealing of Proprietary Business Information Permitted When Disclosure Would Threaten Party's Competitive Advantage
On August 9, 2022, Justice Robert R. Reed of the New York County Commercial Division issued a decision in Linkable Networks v. Mastercard Inc., 2022 NYLJ LEXIS 1007, granting a motion to seal information that one of the parties claimed contained sensitive financial information concerning business strategies, licensing agreements and fees of nonparties, and proprietary materials reflecting commercial interests, business strategy, and legal planning, explaining: Read More
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Posted: September 28, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerDiscovery Motion Denied for Failure to Comply with Commercial Division and Part Rules Regarding Pre-Motion Conference
On September 6, 2022, Justice Robert R. Reed of the New York County Commercial Division issued a decision in Latin Markets Brazil, LLC v. McArdle, 2022 N.Y. Slip Op. 50848(U), denying a discovery motion that was made without leave of court and in violation of the Part Rules and Commercial Division Rules 14 and 24, explaining: Read More
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Posted: September 23, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerFee Recovery Allowed Against a Foreign Party Where Party’s SLAPP Suit Was Dismissed
On September 15, 2022, Justice Schecter of the New York County Commercial Division issued a decision in Moby S.P.A. v. Stanley, 2022 NYLJ LEXIS 1241 holding that a where a foreign plaintiff filed a baseless anti-SLAPP suit that was dismissed, the prevailing party could recover attorney’s fees. Read More
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Posted: September 21, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCounterclaim Properly Dismissed Where Issue Was Adjudicated in Prior Arbitration
On July 28, 2022, Justice Borrok of the New York County Commercial Division issued a decision in Firescu v Diamond, 2022 NY Slip Op 32574(U) holding that a counterclaim should be dismissed on a theory of collateral estoppel where the issue was previously decided by an arbitration panel. Read More
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Posted: September 19, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerDefault Judgment Proper Where Defendant Failed to Respond and Plaintiff Submitted Proof of Service and Evidence of Merits
On September 6, 2022, Justice Reed of the New York County Commercial Division issued a decision in Excelsia Leatherware Co. v. Horowitz, 2022 NY Slip Op 50847(U) holding that a party was entitled to a default judgment where the defendant failed to respond to the complaint and the plaintiff submitted proof of service and evidence proving the claim. Read More
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Posted: September 16, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerDemand Futility Precludes Dismissal for Failure to Make Demand on Board of Managers
In an Opinion, dated August 25, 2022, in Uniloeb Holdings LLC v. Shamus, Justice Andrew Borrok largely denied Defendants’ motion to dismiss. In particular, with respect to defendants’ claim that the action should be dismissed due to plaintiff’s failure to make a demand on the Board of Managers, the Court explained. Read More
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Posted: September 14, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerSettlement Agreement Can Be An Instrument for the Payment of Money Only Under CPLR 3213
In an Opinion dated July 25, 2022, in Newco Capital Group VI, LLC v. Teleescrow, Inc. and Tristan Desechenes, Justice Melissa Anne Crane granted plaintiff’s motion for summary judgment in lieu of complaint as to the amount in the settlement agreement. Read More
