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Posted: February 4, 2022
Plaintiff Need Not Turn Over Personal Devices for Forensic Imaging in Discovery
On January 11, 2022, Justice Margaret Chan of the New York County Commercial Division issued a decision in Ferreira v. Hudson River Healthcare, Inc., 2022 N.Y. Slip Op. 30084(U), holding that the defendant in an illegal-wage-practices cases was not entitled to disclosure of the plaintiff's smart phones and tablets for forensic imaging, nonpublic social media activity, and diaries, but that the defendant was entitled to the plaintiff's calendar and appointment books, explaining: Read More
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Posted: February 2, 2022
Denial of Motion to Dismiss on Legal Grounds Does Not Necessarily Entitle Plaintiff to Summary Judgment
On January 5, 2022, Justice Margaret Chan of the New York County Commercial Division issued a decision in SL Globetrotter, L.P. v. Suvretta Capital Mgmt., LLC, 2022 N.Y. Slip Op. 30076(U), denying a plaintiff's motion for summary judgment on liability and rejecting the plaintiff's argument that the court's decision denying defendants' motion to dismiss entitled plaintiff to summary judgment, explaining: Read More
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Posted: January 31, 2022
New Commercial Division Rule Mandates Settlement Conference After Filing of Note of Issue
On January 7, 2022, Chief Administrative Judge Lawrence J. Marks amended Commercial Division Rule 30 to mandate that "parties in every case pending in the Commercial Division must participate in a court-ordered mandatory settlement conference (MSC) following the filing of a Note of Issue." Read More
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Posted: January 28, 2022
COVID Does Not Fall Under Insurance Policy Exclusion
In Tina Turner Musical LLC v Chubb Ins. Co. of Europe SE, 2021 NY Slip Op 51143(U), a decision dated December 6, 2021, Justice Borrok denied Chubb’s motion to dismiss an action to recover losses for cancellation of the Broadway show due to COVID. The Court explained: Read More
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Posted: January 26, 2022
Executors of Late Father’s Estate Have Standing to Sue Non-Profit and Its Directors
On November 26, 2021, in Epstein v Epstein Teicher Philanthropies, 2021 NY Slip Op 32460(U), Justice Masley held that co-successor executors of an estate that bequeathed money to a charitable organization had standing to sue the nonprofit and its directors for failure to obey the charity’s purpose by donating money to Ohio rather than NY based institutions. The Court explained: Read More
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Posted: January 24, 2022
Claim Dismissed Against Husband Even Though He Benefited From Allegedly Misappropriated Funds
On December 2, 2021, in Lanaras v Premium Ocean, LLC, 2021 NY Slip Op 51128(U), Justice Reed dismissed claims of fraudulent conveyance under NY DCL § 273, unjust enrichment and constructive trust against the husband of a businesswoman who allegedly misappropriated money received to start a business venture. The complaint identified the husband as a beneficiary of the allegedly fraudulent conveyances by virtue of his and his wife’s joint property holdings and joint bank accounts. Dismissing the complaint against the husband, the Court explained: Read More
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Posted: January 19, 2022
Fraud Claim Barred Where Contract Expressly Disclaimed Reliance on Alleged Misrepresentation
On November 4, 2021, Justice Emerson of the Suffolk County Commercial Division issued a decision in Arco Acquisitions, LLC v Tiffany Plaza LLC, 2021 NY Slip Op 51039(U), holding that a fraud claim is barred where a contract made between sophisticated parties expressly disclaimed reliance on the alleged false representation. Read More
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Posted: January 14, 2022
First Department Affirms Granting of Motion to Dismiss
In a Decision dated December 7, 2021 Fenway Polar Representative, LLC v. Americold Realty Trust, 2021 N.Y. Slip. Op. 06797, the First Department affirmed an Order of Justice Jennifer Schecter dismissing a complaint concerning alleged interference with the sale of a privately held company. Read More
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Posted: January 12, 2022
Court Further Explains Denial of Motion to Approve Settlement in Derivative Lawsuit
On December 31, 2021, in Matter of Renren Inc. Derivative Litig. v. XXX, Index No. 653594/2018, 2021 NY Slip Op 51281[U], Justice Andrew S. Borrok issued an additional supplemental order explaining the Court’s denial of a motion to approve a settlement in a derivative lawsuit and granting leave to defendants to move to dismiss certain plaintiffs. Read More
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Posted: January 7, 2022
Court Denies Motion To Confirm Service Of Process On Brazilian Limited Liability Corporation Pursuant to BCL § 307 or CPLR § 311
On December 9, 2021, in Air Astana Jsc v. Embraer, S.A., 2021 NY Slip Op 32650(U), Justice Ostrager denied Plaintiff’s motion to deem service completed under BCL § 307 or CPLR § 311(b). Read More
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Posted: January 5, 2022
Court Grants Motion For Attachment
In a Decision and Order dated November 23, 2021 in 180 Life Sciences Corp. v. Tyche Capital, LLC, Justice Borrok granted Plaintiff’s motion for an attachment pursuant to CPLR § 6201 based on a money judgment demanded against a foreign company not registered to do business in New York. Read More
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Posted: January 3, 2022
First Department Affirms Dismissal Of Guarantors Pursuant to Administrative Code of the City of New York § 22-1005
On November 30, 2021, in 3rd and 60th Associates Sub LLC v. Third Avenue M&I, LLC, 2021 NY Slip Op 06647, the First Department affirmed a Decision and Order of Justice Andrew S. Borrok, which granted defendants’ motion to dismiss the amended complaint as against the individual defendants-guarantors of a lease for a restaurant. Read More
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Posted: December 29, 2021
Second Department Distinguishes Treatment of Claims and Damages against Insurance Company in Breach of Duty to Defend Case
On November 17, 2021, in East Ramapo Cent. Sch. Dist. v New York Schs. Ins. Reciprocal, 2021 NY Slip Op 0634, the Second Department reversed the decision of Justice Stephen A. Bucaria that dismissed a claim arising from an insurer’s bad-faith denial of coverage and reduced by 65% damages relating to a breach of the duty to defend. The Court explained that in the context of insurance liability litigation, at the pretrial stage courts are reluctant to dismiss complaints alleging bad faith and damages for breach of the duty to defend, unlike in a fee shifting case, are presumed reasonable: Read More
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Posted: December 27, 2021
Derivative Action Against Icahn Defendants Survived Motion to Dismiss Despite Absence of Damages
On November 18, 2021, the First Department, in Miami Firefighters' Relief & Pension Fund v Icahn, 2021 NY Slip Op 06446, unanimously reversed the decision of Justice Barry R. Ostrager granting defendants’ motion to dismiss the causes of action for breach of fiduciary duty and breach of contract in a derivative action brought against Icahn and other defendants for using confidential information about Xerox’s planned acquisition of HP Inc. to buy HP shares. The lower court granted the motion based on the Icahn defendants’ affidavit which purported to show a loss resulting from the relevant stock trades. The First Department explained that a loss does not foreclose the possibility that the Icahn defendants used Xerox confidential information to their advantage: Read More
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Posted: December 20, 2021
Business Loss Insurance Policy Does Not Cover COVID-19 Business Interruption Losses Where Policy Requested Physical Loss
On November 30, 2021, Justice Margaret Chan of the New York County Commercial Division entered a decision in SJ 1st St. Hotel, LLC v Sompo Am. Ins. Co., 2021 N.Y. Slip Op. 32558, dismissing an insured's complaint against an insurance company for failing to cover loss of income to a business due to shutdowns caused by the COVID-19 pandemic where the insurance policy covered loss for the closure of businesses due to a direct physical loss. Read More
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Posted: December 17, 2021
First Department Pilot Program to Provide For Expedited Appeals From Commercial Division Discovery Orders
Last month, the First Department announced a new pilot program, under which appeals from discovery orders entered in the Commercial Division must be perfected within four months, rather than the typical six months. According to the court, the goal of this pilot program is to "promptly resolve issues involving discovery disputes that should be addressed before a litigation can proceed." To qualify under this pilot program, the order on appeal must involve "exclusively" discovery issues, and the notice of appeal must be dated January 1, 2022 or later. Read More
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Posted: December 15, 2021
U.C.C. Foreclosure Sale Held During December Holiday Season Not Commercially Unreasonable
On December 8, 2021, Justice Leon Ruchelsman of the Kings County Commercial Division issued a decision in Lincoln Street Mezz II, LLC v. One Lincoln Mezz 2 LLC, Index No. 530492/2021, denying a mezz borrower's motion for a preliminary injunction staying a U.C.C. foreclosure sale scheduled for December 20, 2021, and rejecting the mezz borrower's arguments that the sale was commercially unreasonable because, among other things, it was "scheduled to take place right before and indeed during the holiday season," and thus gave prospective buyers "insufficient time" to "obtain the necessary financing," explaining: Read More
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Posted: December 13, 2021
New Commercial Division Rule to Permit Court to Order Remote Depositions
On December 7, 2021, Chief Administrative Judge Lawrence J. Marks promulgated new Rule 37 of the Commercial Division Rules, which expressly permits the court to order that depositions be held by electronic means--either "upon the consent of the parties" or "upon a motion showing good cause." The new rule, which becomes effective December 15, 2021, lays out the factors the court must consider in deciding whether to order remote depositions over a party's objection--though states that the "safety of the parties and the witness" is the paramount consideration. The new rule also attaches a template protocol for video depositions, and states that no party may challenge the validity of the oath or affirmation administered on the grounds that the court reporter is not a notary in the state in which the witness is located or that the court reporter is not physically present with the witness. New Rule 37 comes on the heels of new Rule 36, which becomes effective today and which permits courts to hold virtual evidentiary hearing and bench trials. But unlike new Rule 36, which states that it "does not address" the issue of when all parties do not consent, new Rule 37 expressly permits the court to order that depositions be held virtually upon a showing of "good cause." New Rule 37 is as follows: Read More
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Posted: December 10, 2021
First Department Affirms Denial of Summary Judgment On Breach of Contract and Reformation Claims
On September 30, 2021, the First Department in Empery Asset Master, Ltd. v. AIT Therapeutics, Inc. affirmed an order of Justice Joel M. Cohen, which denied defendant’s motion for summary judgment dismissing the breach of contract and reformation claims in the case. The Court explained >> Read More
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Posted: December 8, 2021
First Department Implements Pilot Program Regarding Discovery Appeals
The First Department has announced that, commencing on January 1, 2022, it will institute a Pilot Program to reduce the time within which to perfect interlocutory appeals from the Commercial Division of the Supreme Court from six to four months where the issues on appeal relate exclusively to discovery disputes. The First Department wrote >> Read More
