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Posted: May 25, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerDiscovery Violations Result in Striking of Answer and Default Judgment
In a Decision and Order dated April 11, 2022, in Lynx Capital Partners of NJ, LLC v. Bayes Capital LLC, 2022 NY Slip. Op. 31214(U), Justice Andrew Borrok granted the plaintiff’s renewed motion for sanctions, struck the defendant’s answer, entered default judgment in plaintiff’s favor, and awarded attorneys’ fees. Read More
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Posted: May 23, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerAuctioning of Artwork Did Not Place Plaintiff Under Duress
On March 3, 2022, in Zhang Chang v. Phillips Auctioneers LLC, 2022 NY Slip. Op. 01383, the First Department affirmed an Order of Justice Jennifer G. Schecter, which granted defendant’s motion to dismiss causes of action for breach of contract and unjust enrichment. In affirming, the First Department rejected the plaintiff’s argument that an acknowledgement of the debt was voidable because it had been signed under duress. Read More
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Posted: May 19, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerLegal Malpractice Claim Dismissed Where Failure to Submit Documents Was Not Proximate Cause of Adverse Arbitration Award
On February 9, 2022, in All Vision LLC v. Paduano & Weintraub LLP, Index No. 653605/2021, Justice Andrew Borrok of the New York County Commercial Division dismissed plaintiff’s claims for legal malpractice and breach of fiduciary duty for failure of its counsel to submit a termination letter and certain financial statements in an arbitration arguing that had they been submitted, the documents would have served as a defense to the claims asserted against them or resulted in a substantially reduced award. The Court explained: Read More
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Posted: May 17, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerNew York Recognizes Breach of Implied Duty of Good Faith and Fair Dealing and Breach of Contract as Independent Causes of Action
On April 21, 2022, in Anexia, Inc. v. Horizon Data Solutions Ctr., LLC, Index No. 657444/2019, Justice Robert R. Reed of the New York County Commercial Division, among other things, granted plaintiff’s motion to dismiss defendant’s counterclaim for tortious interference but denied its motion to dismiss the counterclaim for breach of the implied duty of good faith and fair dealing. The Court explained that while a tortious interference claim grounded on the same conduct as a breach of contract claim are duplicative, under certain circumstances New York recognizes the implied duty of good faith and fair dealing as an independent cause of action. Read More
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Posted: May 13, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerRestrictive Covenant Preventing Employee from Working for a Competitor Overly Broad and Not Necessary to Protect Legitimate Interest
On April 5, 2022, Justice Chan of the New York County Commercial Division issued a decision in Mission Capital LLC v. Javich, 2022 NY Slip Op 31162(U) holding that a motion seeking to prevent a former employee from working at a competitor should be denied, despite the existence of a restrictive covenant, where enjoining the employee from working at the competitor was broader than necessary to protect the employer’s business interests. Read More
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Posted: May 11, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerAffirmative Defense that Agreement was Void Due to Lack of Consideration Should Be Dismissed Where Party Only Alleges Failure of Performance
On April 4, 2022, Justice Borrok of the New York County Commercial Division issued a decision in 3B Assoc. LLC v eCommission Solutions, LLC, 2022 NY Slip Op 31184(U), holding that summary judgment must be granted against a defendant’s affirmative defense that a contract was void due to lack of consideration where the record showed that the alleged missing consideration was merely an allegation that the plaintiff failed to provide services under the terms of the contract. Read More
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Posted: May 9, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerForeign Bank’s Submission of Trading Data to Internet Platforms Not Sufficient to Trigger Jurisdiction of New York’s Long Arm Statute
On April 13, 2022, Justice Crane of the New York County Commercial Division issued a decision in Qatar v. First Abu Dhabi Bank Pjsc, 2022 NYLJ LEXIS 410, holding that a motion to dismiss against a foreign bank for lack of jurisdiction should be granted where the only contacts the bank had with New York were allegedly submitting quotes to globally accessible internet trading platforms and the maintenance of two correspondent bank accounts in the state. Read More
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Posted: May 6, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerTortious Interference Claim Fails When Alleged Interference Is Incidental to Lawful Purpose
On March 22, 2022, Justice Margaret Chan of the New York County Commercial Division issued a decision in Kind Operations Inc. v. AUA Private Equity Partners, LLC, denying a motion for leave to add a tortious interference claim because the proposed pleading failed to adequately allege lack of justification, explaining: Read More
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Posted: May 4, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerNotice to Admit Seeking Admissions Concerning Fundamental Matters That Do Not Dispose of Uncontroverted Questions of Fact Improper
On April 21, 2022, Justice Robert R. Reed of the New York County Commercial Division issued a decision in Chen Dongwu v. New York City Regional Center LLC, 2022 N.Y. Slip Op. 50322(U), holding that a notice to admit that seeks admissions concerning "fundamental matters" that do not "dispose of uncontroverted questions of fact" was improper, explaining: Read More
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Posted: May 2, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerPlaintiff Sanctioned and Ordered to Pay Defendants' Attorneys' Fees for Making a Frivolous Motion for Reargument and Renewal
On April 12, 2022, Justice Jennifer Schecter of the New York County Commercial Division issued a decision in Cattan v. Ermotti, 2022 NYLJ LEXIS 367, sanctioning the plaintiff and ordering it to pay the defendants' attorneys' fees incurred in opposing the plaintiff's motion for reargument and renewal of the court's dismissal order based on a forum-selection clause, explaining: Read More
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Posted: April 29, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Rejects Claim That Defendants Should Be Estopped from Asserting Statute of Limitations
In an Opinion, dated March 3, 2022, in First Equity Realty v. Harmony Grp. II, 2022 N.Y. Slip. Op. 30674(U), Justice Joel M. Cohen rejected plaintiff’s argument that defendants were estopped from asserting a defense of statute of limitations. Read More
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Posted: April 27, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerFiduciary Relationship Exists Based on Longstanding Business and Personal Relationship with Plaintiff's Principals
In a Decision and Order dated March 10, 2022, in Four Five Capital LLC v. Schwartz, 2022 NY Slip. Op. 30795(U), Justice Andrew Borrok denied Plaintiff’s motion to dismiss a cause of action for unfair competition. Read More
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Posted: April 25, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerContract with Corporation Precludes Unjust Enrichment Claim Against Corporation's Principal
On March 11, 2022, in Salesmark Ventures, LLC v. Singh, 2022 NY Slip. Op. 30836, Justice Joel M. Cohen granted defendant’s motion to dismiss a claim of unjust enrichment against the defendant corporation’s principal. Read More
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Posted: April 21, 2022
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerOwner Has Standing Even Though It Was Not a Party to Consignment Agreement
On January 11, 2022, in Artemus USA LLC v Leila Taghinia-Milani Inc., 2022 NY Slip Op 00115, the First Department, inter alia, affirmed the denial of defendants’ motion to dismiss the breach of contract claim brought by the owner of artwork who was not a party to the consignment agreement for lack of standing. Read More
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Posted: April 20, 2022
Written by: Jeffrey M. Eilender, Samuel L. Butt, Joshua WurtzelFailure to Commence Lien-Foreclosure Action Within One Year of its Filing Did Not Preclude Recovery
On January 10, 2022, Justice Elizabeth H. Emerson of the Suffolk County Commercial Decision issued a decision in American Universal Supply Inc. v Gibson Air Mech. Inc., 2022 NY Slip Op 50018(U), holding that plaintiff's failure to commence an action to foreclose its mechanic's lien did not preclude it from seeking recovery on the bond substituted therefor and that plaintiff properly and timely asserted its claim to recover on the bond. Denying defendant insurers’ motion to dismiss. Read More
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Posted: April 18, 2022
Written by: Jeffrey M. Eilender, Samuel L. Butt, Joshua WurtzelEstate of Deceased Partner Could Not Bring Action Regarding Forged Deed Owned by the Partnership
In a decision dated January 12, 2022, the Second Department in Abruzzi v. Bond Realty, Inc., 2022 NY Slip Op 00156, held, inter alia, that that portion of the complaint seeking a judgment declaring a deed to certain real property to be void and to recover damages for fraudulent concealment and unjust enrichment was properly dismissed on summary judgment. The property at issue was held by a partnership and the deed which purported to transfer the property from the partnership to a corporation included the signature of one partner who had been dead for approximately 23 years. The Court explained: Read More
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Posted: April 8, 2022
Amendments to Commercial Division Rules Attempt to Consolidate and Modernize Rules Concerning ESI
On March 7, 2022, Chief Administrative Judge Lawrence K. Marks signed an administrative order amending Commercial Division Rules 1, 8, 9, 11-c, 11-e, and 11-g to consolidate and modernize rules concerning discovery of electronically stored information (ESI). The crux of the amendments, which become effective on April 11, 2022, is in amended Rule 11-c--which sets out standards for the collection, review, and production of ESI. Read More
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Posted: April 6, 2022
Contractual Interest Rate Trumps Statutory Pre-Judgment Interest Rate
On March 2, 2022, Justice Andrea Masley of the New York County Commercial Division issued a decision in BNP Paribas, Singapore Branch v. Natixis, N.Y. Branch, 2022 N.Y. Slip Op. 30679(U), holding that a contractual agreement concerning the rate of interest to be paid by the defendant will control over New York statutory rate of 9% for prejudgment interest, explaining: Read More
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Posted: April 5, 2022
One-Action Rule Does Not Bar Simultaneous U.C.C. Foreclosure and Action to Foreclose on Mortgage and Recover Deficiency Judgment from Guarantors
On February 28, 2022, Justice Elizabeth H. Emerson of the Suffolk County Commercial Division issued a decision in Nebari Natural Resources Credit Fund I, LP v. Speyside Holdings, LLC, 2022 N.Y. Slip Op. 50164(U), holding that New York's one-action rule does not bar a lender from conducting a U.C.C. foreclosure while simultaneously bringing an action to foreclose on a mortgage and recover a deficiency judgment under various "bad boy" guaranties, explaining: Read More
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Posted: April 1, 2022
Written by: Jeffrey M. Eilender, Samuel L. Butt, Joshua WurtzelCourt Dismisses Counterclaim Concerning Breach of Confidentiality Agreement Because Subsequent Agreement on Same Subject Matter Controls
In a Decision and Order, dated February 1, 2022, in Lazar v. Dweck, 2022 N.Y. Slip. Op. 30406(U), Justice Jennifer Schecter granted plaintiff’s motion to dismiss a counterclaim alleging breach of a confidentiality and non-disclosure agreement. Read More
