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Posted: September 12, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCommercial Division Rule 15 Amended to Encourage Use of Remote Appearance Technology to Avoid Adjournments of Conferences
On July 12, 2022, Chief Administrative Judge Lawrence K. Marks signed an administrative order amending Rule 15 of the Commercial Division Rules, adding a new sentence that provides, “By leave of court as provided by Rule 1 (d), attorneys are encouraged to use remote appearance technology in order to avoid adjournments of conferences.” The purpose of the amendment is to assist with avoiding unnecessary delay of proceedings and consequent inefficiencies and loss of productivity. Read More
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Posted: September 9, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerForeign Garnishee Banks that Maintain Bank Accounts in New York to Effect Dollar Transactions and the Funds Held in those Banks’ Correspondent Accounts Not Subject to Personal or Quasi-In-Rem Jurisdiction
On August 3, 2022, in Chaar v. Arab Bank P.L.C., Index No. 651780/2022, Justice Margaret Chan of the New York County Commercial Division denied plaintiffs’ motion to confirm a prior order of attachment for lack of quasi-in-rem jurisdiction. While plaintiffs asserted various activities by the defendant banks and their executive and board members in New York, including conducting banking activities, trading on the New York Stock Exchange and investing in real estate, those activities were not sufficiently related to plaintiffs’ claims to establish the constitutionally mandated minimum contacts. Read More
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Posted: September 7, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerConfidentiality Stipulation Insufficient to Support Finding of Good Cause to Seal Documents and None Exists as to Information that is Embarrassing But Not Proprietary
On August 8, 2022, in Cf 125 Holdings LLC v. 125 LLC et al., Index No. 850143/2019, Justice Andrea Masley of the New York County Commercial Division granted in part and denied in part defendant’s motion to seal documents pursuant to Section 216.1 of the Uniform Rules for New State Trial Courts distinguishing communications that contain strategic information and could give a competitor an unearned advantage from documents that contain information that is inflammatory or embarrassing but not proprietary or confidential. The Court explained: Read More
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Posted: September 2, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerClaim for Lost Profits Must Be Dismissed Where Complaint Fails to Allege that Lost Profits Were Within the Contemplation of the Parties
On June 16, 2022, Justice Borrok of the New York County Commercial Division issued a decision in L'Oreal USA, Inc. v Wormser Corp., 2022 NY Slip Op 31931(U) holding that claims for lost profits should be dismissed where the complaint failed to allege that the parties contemplated lost profits when entering into an agreement. Read More
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Posted: August 29, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerRedactions in Memorandum of Law Not Appropriate Where Proposed Redactions Do Not Implicate Business’ Competitive Standing
On August 8, 2022, Justice Masley of the New York County Commercial Division issued a decision in Coresite 32 Ave. of the Ams., L.L.C. v. 32 Sixth Ave. Co. LLC, 2022 NY Slip Op 32670(U) holding that a party could not redact portions of its memorandum of law where the proposed redactions did not protect confidential business information. Read More
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Posted: August 26, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCommercial Division Rule 6 Amended to Require Answer to Interlineate Each Allegation To Which It Responds
On August 17, 2022, Chief Administrative Judge Lawrence K. Marks signed an administrative order amending Rule 6 of the Commercial Division Rules to require that a responsive pleading "interlineate each allegation of the pleading to which it is responding with the party's response to that allegation." The full text of the amended rule, which becomes effective on September 12, 2022, is below: Read More
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Posted: August 24, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerArbitration Permanently Stayed Given Dispute Over Authenticity of Agreement Containing Arbitration Clause
On August 18, 2022, Justice Barry R. Ostrager of the New York County Commercial Division issued a decision in SMI Central Park Tower LLC v. Genesis Central Park Tower, LLC, Index No. 655036/2021, granting an Article 75 petition to permanently stay arbitration when there was a genuine dispute concerning whether the alleged agreement including the arbitration clause was authentic, explaining: Read More
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Posted: August 22, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerParty Cannot Avoid Narrow Dispute-Resolution Clause in Contract By Dressing Up Claim of Breach as a Breach of a Covenant To Which Dispute-Resolution Clause Does Not Apply
On June 21, 2022, Justice Joel M. Cohen of the New York County Commercial Division issued a decision in BD Capital Partners Ltd. v. EBIX, Inc., 2022 N.Y. Slip Op. 31951(U), holding that a party cannot avoid a narrow dispute-resolution clause in a contract by dressing up its allegations as a breach of separate covenants in a contract to which the dispute-resolution clause does not apply, explaining: Read More
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Posted: August 19, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerInsurers Waived Right To Control Defense
In an Opinion, dated June 24, 2022, in National Hockey League v. TIG Ins. Co., 2022 N.Y. Slip Op. 22213, Justice Melissa Crane determined that insurers had waived the right to control the defense in proceedings brought by former NHL players that they sustained concussion-related injuries during their careers. Read More
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Posted: August 17, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Holds Defendants In Contempt For Failure To Segregate Funds
In a Decision and Order dated July 29, 2022, in Lotte Hotel New York Palace, LLC v. Anthony J. DiGuiseppe, P.C., 2022 N.Y. Slip Op. 32606(U), Justice Andrea Masley held defendants in contempt regarding their failure to place certain funds in a segregated account. The Court further awarded plaintiff sanctions against the defendants in the amount of plaintiff's costs and reasonable attorney's fees incurred in prosecuting the action. Read More
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Posted: August 15, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Denies Motion To Consolidate So As To Not Delay Case Further
On August 2, 2022, in an opinion in Harleysville Worcester Ins. Co. v. Sompo Am. Ins. Co., 2022 NY Slip Op 50699(U), Justice Robert R. Reed denied Plaintiff’s motion to consolidate. Read More
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Posted: August 12, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerPlaintiffs Permitted to File Second Amended Complaint to Clarify Causes of Action Where Complaint Not Patently Devoid of Merit and Defendants Not Prejudiced
On July 25, 2022, in Ketterer v. Grayson, Index No. 653510/2021, Justice Borrok of the New York County Commercial Division granted plaintiffs leave to file a Second Amended Complaint. The original complaint asserted derivative claims and the amended complaint asserted claims for breach of fiduciary duty, aiding and abetting breach of fiduciary duty, and unjust enrichment. In the Second Amended Complaint, plaintiffs sought to add additional factual allegations relating to already plead claims, remove certain causes of action, and clarify that the remaining causes of action are brought directly, and not derivatively. Read More
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Posted: August 10, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerManager of LLC Satisfied Contractual Obligation to Provide Annual Financial Statements by Providing Tax Returns
On March 28, 2022, in BCI Fin. Holdings LLC v. RT Two LLC, Index No. 653394/2020, Justice Margaret Chan of the New York County Commercial Division granted summary judgment dismissing defendant and counterclaim-plaintiff’s counterclaim for breach of the operating agreement based on the manager’s failure to provide the annual financial statements as expressly required finding that the tax returns that were provided could serve as financial statements because they contain the required information and adopt the required accounting standard. Read More
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Posted: August 8, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Puts Substance Over Form to Deny Pre-Answer Motion to Dismiss Breach of Contract Claim
On April 8, 2022, in AFL Constr. Co., Inc. v. Roosevelt Is. Operating Corp., Index No. 656072/2021, Justice Ostrager of the New York County Commercial Division denied defendant’s pre-answer motion to dismiss plaintiff’s breach of contract claim rejecting defendant’s argument that dismissal was proper where plaintiff did not provide its “notice of claims” in accordance with the literal language of the contract. The Court held that it was premature to dismiss the breach of contract claim at the pre-answer motion to dismiss stage because a dispute exists as to whether plaintiff’s notices were sufficient to comply with the meaning, purpose, and intent of the contract. Read More
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Posted: August 5, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerAttorney’s Fees in Default Judgment Not Appropriate Where Condominium By-Laws Are Not Explicit
On May 4, 2022, Justice Chan of the New York County Commercial Division issued a decision in Board of Mgrs. of the 207-209 E. 120th St. Condominium v. Dougan, 2022 NY Slip Op 31491(U) holding that where a condominium’s bylaws did not explicitly state that attorneys’ fees were collectible when the Board of Managers was successful in litigation arising out of the governing agreements and laws, the Board of Managers was not entitled to collection of such fees. Read More
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Posted: August 3, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerDefault Judgment Proper Where Party Failed to Update Address and Did Not Receive Service of Process
On July 26, 2022, Justice Borrok of the New York County Commercial Division issued a decision in Shabtai v. HFZ Capital Group, LLC, 2022 NY Slip Op 50669(U) holding that a party’s failure to update its address was not a reasonable excuse for not receiving process and the subsequent failure to respond warranted a default judgment. Read More
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Posted: August 1, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerTax Returns Not Discoverable Where Party Failed to Show Information is Unavailable from Other Sources
On July 14, 2022, Justice Reed of the New York County Commercial Division issued a decision in Atsco Footwear Holdings, LLC v. KBG, LLC, 2022 NY Slip Op 50657(U) holding that a party was not entitled to tax returns in discovery even where relevant unless the party shows that the information was not available from other sources. Read More
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Posted: July 29, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerAttorneys' Fees Awarded Even in Absence of Itemized Time Records
On May 7, 2022, Justice Andrea Masley of the New York County Commercial Division issued a decision in Continental Industries Group, Inc. v. Ustuntas, 2022 N.Y. Slip Op. 31525(U), awarding attorneys' fees to defendants even when defendants' counsel did not submit hourly or line-item invoices, explaining: Read More
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Posted: July 27, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCommercial Lease Requiring Tenant to Maintain $2 Million of Insurance Coverage in a "Single Limit" Was Not the Same as Requiring this Coverage "Per Incident"
On June 27, 2022, Justice Margaret Chan of the New York County Commercial Division issued a decision in Booston LLC v. 35 West Realty Co., LLC, Index No. 654308/2019, holding that a commercial lease that required tenant to maintain $2 million of general-liability coverage in a "single limit" permitted tenant to maintain $2 million of coverage in the aggregate, rather than $2 million "per incident," explaining: Read More
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Posted: July 25, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerThe Business Council of New York State, Inc., Holds Webinar Discussing Benefits of the Commercial Division
On June 7, 2022, The Business Council of New York State, Inc., held a webinar entitled "The Benefits of the Commercial Division to the State of New York." The Business Council is New York State’s largest business organization--made up of approximately 3,500 member companies, local Chambers of Commerce, and professional and trade associations). This webinar discusses how the Commercial Division helps to increase business activity in New York, and to thus generate tax revenue and provide jobs. Specifically, this webinar discusses recent improvements to the Commercial Division’s rules, procedures, and operations that have been designed to be responsive to the needs and concerns of the business community. Read More
