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Posted: July 22, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerFraud Claim Dismissed as Duplicative of Breach of Contract Claim
In a Decision and Order dated May 5, 2022, in Coulter v. Sorenson, 2022 NY Slip. Op. 31480(U), Justice Barry R. Ostrager granted defendants’ motion to dismiss plaintiff’s fraud claim as duplicative of plaintiff’s surviving breach of contract claim. Read More
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Posted: July 20, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerPlaintiff Not Entitled to Exercise Stock Option Because Request Was Untimely
In a Decision and Order dated May 11, 2022, in MacDonald v. GuarantR, Inc.., 2022 NY Slip. Op. 31525(U), Justice Joel M. Cohen granted defendant’s motion for summary judgment on Plaintiff’s claim for breach of contract stemming from defendant’s refusal to issue shares to plaintiff pursuant to a stock option provision in a consulting agreement between plaintiff and defendant. To be entitled to the shares, plaintiff had to exercise the option within three months of the termination of his service relationship with defendant. Service relationship was defined, in turn, as “the continuous period during which” plaintiff was “engaged as a consultant by and/or [is] engaged in another service relationship with, the Company”. Read More
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Posted: July 18, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerAllegations that Defendant Encumbered Its Interests in Development Project to Obtain Financing States Breach of Contract Claim
On May 9, 2022, in a decision and order in AmBase Corp. v. 111 W. 57th Sponsor LLC, 2022 NY Slip. Op. 31503(U), Justice Joel M. Cohen denied Defendant’s motion to dismiss a breach of contract cause of action premised on Defendant’s obtaining financing for a development project to fund capital calls that allegedly encumbered Defendant’s interest in the project. Read More
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Posted: July 15, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerClass Action Tolling Does Not Apply to Trusts That Did Not Join the Class
On May 10, 2022, in Zittman v. Bank of N.Y. Mellon, Index No. 656037/2021, Justice Andrew Borrok of the New York County Commercial Division held that tolling that saved claims brought by a class of certificate holders in residential mortgage-back security trusts did not apply to claims relating to trusts that were not part of the class even though the plaintiffs and trustee were the same and the claims similar. Read More
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Posted: July 13, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCPLR 3213 Unavailable Where Personal Guaranty Agreement Did Not Incorporate All Necessary Terms and Conditions by Reference
On March 8, 2022, in Sanghvi Diamonds LLC v. Agadjani, Index No. 652445/2021, Justice Joel M. Cohen of the New York County Commercial Division denied the award of summary judgment in lieu of complaint because the unconditional right to payment was not clear from the face of a document. Further, even though defendant acknowledged owing about 80% of the amount plaintiff sought, because each transaction represented a distinct contract for sale, the question of damages was tied up with the question of liability and the motion under CPLR 3213 was deemed a complaint. Read More
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Posted: July 11, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerOpinions Are Not Defamatory Even If Offensive
On April 1, 2022, in Lewis v. Schuster, Index No. 157975/2020, Justice Andrea Masley of the New York County Commercial Division dismissed a defamation action brought by a former partner of a law firm who was terminated after being accused of sexual misconduct. The former partner sued both the law firm and several of its partners for wrongful termination and later, in an amended complaint, defamation. In this action, the former (terminated) partner sued an attorney representing one of the law partners for allegedly defamatory statements made to the New York Law Journal which wrote an article covering the amended complaint. Read More
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Posted: July 8, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerShared Principal Corporate Officer and Allegations that Party Did Not Maintain Separate Offices Not Sufficient to Pierce Corporate Veil
On May 11, 2022, Justice Masley of the New York County Commercial Division issued a decision in Irma C. Pollack LLC v. OP Dev. Corp., 2022 NY Slip Op 31541(U)holding that a complaint failed to properly plead that a party had pierced the corporate veil where the entities shared a principal officer and did not maintain separate offices. Read More
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Posted: July 1, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerAccountant May Owe Fiduciary Duties to Client in Limited Circumstances
On June 28, 2022, the First Department issued a decision in Gerzog v. Goldfarb, Case No. 2022-00071, holding that an accountant owes fiduciary duties to a client when it is alleged that the accountant knew of and concealed illegal acts and diversions of funds yet failed to withdraw in the face of a conflict of interest, explaining: Read More
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Posted: June 29, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerPost-Judgment Subpoenas for Bank Records of Nondebtor Permitted
On June 22, 2022, Justice Robert R. Reed of the New York County Commercial Division issued a decision in Dragons 516 Ltd. v. GDC 138 E 50 LLC, et al., 2022 N.Y. Slip Op. 50522(U), denying a motion to quash a post-judgment subpoena served on a bank for bank records of a nondebtor, explaining: Read More
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Posted: June 27, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerAttorney Affirmation Made Upon Information and Belief Cannot Support Motion for Default Judgment
On May 10, 2022, Justice Andrea Masley of the New York County Commercial Division issued a decision in Stanziale v. Perlson, 2022 N.Y. Slip Op. 31528(U), holding that an attorney affirmation was insufficient to support a motion for default judgment when many of the allegations in the affirmation were based on information and belief, explaining: Read More
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Posted: June 24, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerPlaintiff Adequately Pleads Misappropriation of Confidential Information
In a Decision and Order dated May 10, 2022, in Sure, Inc. v. Boost Ins. USA, Inc., 2022 NY Slip. Op. 31523(U), Justice Joel M. Cohen denied defendant’s motion to dismiss a claim for misappropriation of confidential information. Read More
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Posted: June 22, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerDerivative Claim Falls Under In Pari Delicto
On May 11, 2022, in a decision after trial in Seibel v. Ramsay, 2022 NY Slip. Op. 31548(U), Justice Melissa Crane rejected Plaintiff’s claim that defendants had breached the unanimous consent provision of the parties LLC agreement concerning a restaurant in Los Angeles. Read More
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Posted: June 17, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerContractual Obligation to Maintain Insurance and Indemnify Party Demonstrates It Was Intended Beneficiary of Contract
On March 29, 2022, in Board of Mgrs. of the St. Tropez Condominium v. JMA Consultants, Inc., INDEX NO. 656079/2018, Third-Party Index No. 596075/2019, Justice Andrew Borrok of the New York County Commercial Division denied those portions of third party defendant contractor’s motion to dismiss the amended third party complaint alleging breach of contract and contractual indemnification because the contractual language is clear that the third party plaintiff architect/engineer was an intended beneficiary of the contract. Read More
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Posted: June 15, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerAlleging "Cardinal Changes" in Construction Work Sufficient to Warrant Granting Leave to Amend Complaint to Add Quantum Meruit Claim
On April 20, 2022, in L&M Fabrication & Mach., Inc. v. Lane Constr. Corp, Index No. 152899/2021, Justice Joel Cohen of the New York County Commercial Division granted plaintiff leave to file an amended complaint adding a cause of action for quantum meruit based on alleged “cardinal changes” in the construction work at issue. Read More
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Posted: June 13, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerText Messages Insufficient to Satisfy Statute of Frauds Mandate that Writing Memorializing Oral Contract be "Subscribed"
On May 6, 2022, in Han v. Chen, Index No. 651073/2018, Justice Joel Cohen of the New York County Commercial Division granted defendants’ motion for summary judgment dismissing plaintiff’s claim of breach of an oral agreement to sell two cemetery plots. The Court rejected plaintiff’s argument that text messages along with a signed Application for Approval to Transfer Cemetery Property, a signed and acknowledged Lost Deed Affidavit, two checks cashed by defendants identified as payment by plaintiff, and handwritten notes on the cemetery map identifying the locations of the two lots satisfied the statute of frauds because text messages are not a satisfactory writing and the documents did not state all of the material and essential terms of a complete agreement such as price, identity of the parties, the parcel of real estate to be sold, the closing date, the quality of title to be conveyed, adjustments for taxes and risk of loss. Read More
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Posted: June 8, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerAttorney Malpractice Properly Plead Where Complaint Alleges Attorney’s Faulty Advice Forced Arbitration
On May 2, 2022, Justice Chan of the New York County Commercial Division issued a decision in Cutie Pie Baby Inc. v. Sasson Law PLLC, 2022 NY Slip Op 31450(U) holding that a complaint properly alleged attorney malpractice where the plaintiff alleged that the attorney’s faulty advice was the “but for” cause of its damages resulting from an arbitration proceeding. Read More
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Posted: June 6, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerSettlement Agreement Valid Without Signatures Where Parties Agreed to Settle By Email
On April 26, 2022, Justice Masley of the New York County Commercial Division issued a decision in DT Net Lease I Reit v. Coughlan, 2022 NY Slip Op 31381(U) holding that a settlement agreement was valid where the parties exchanged a draft settlement agreement and agreed to settle via email despite not having signed the draft agreement. Read More
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Posted: June 3, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerDiscovery About Litigation Financing Not Relevant
On April 28, 2022, the First Department issued a decision in Worldview Entertainment Holdings, Inc. v. Woodrow, 2022 N.Y. Slip Op. 02891, holding that document demands concerning "litigation financing and witness payments" were not relevant to any claim or defense in the case, explaining: Read More
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Posted: June 1, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCommercial Division Rule 11 Amended to Emphasize Proportionality, Reasonableness, and Efficiency
On May 16, 2022, Chief Administrative Judge Lawrence K. Marks signed an administrative order amending Commercial Division Rule 11 to (i) include a preamble emphasizing proportionality and reasonableness in discovery requests, and (ii) allow the court to order the parties to prepare a document at the outset of the case stating "clearly and concisely" the issues in the case and the elements and necessary facts for each claim. Read More
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Posted: May 27, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerBreach of Fiduciary Duty Claim Upheld Where Plaintiff Adequately Pled Demand Futility
In an Opinion, dated May 10, 2022, in Jones v. CareandWear II, Inc., 2022 N.Y. Slip. Op. 50383(U), Justice Robert R. Reed rejected defendant’s argument that plaintiff’s direct and derivative claims for breach of fiduciary duty should be dismissed for failure to adequately plead demand futility. Read More
