Commercial Division Blog: Current Developments in the Commercial Divisions of the New York State Courts

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July 1, 2022 Accountant 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
May 27, 2022 Breach 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
May 19, 2022 Legal 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
March 27, 2022 Court Should Have Granted Renewal Where Dismissal Was Based on Argument Raised for First Time in Reply Written by: Jeffrey M. Eilender, Samuel L. Butt, Christopher R. Dyess, Joshua Wurtzel, Hillary S. Zilz
On March 3, 2022, in Mehra v. Morrison Cohen LLP, 2022 NY Slip. Op. 01396, the First Department reversed the Decision and Order of Justice O. Peter Sherwood, which granted defendant’s motion to dismiss a breach of fiduciary duty claim, and the Order of Justice Robert Reed, which denied Plaintiff’s motion for leave to renew. Read More
February 28, 2022 Claims of Potential Personal Civil and Criminal Liability Are Not Duplicative of Derivative Claims of Corporation Written by: Jeffrey M. Eilender, Samuel L. Butt, Christopher R. Dyess, Joshua Wurtzel, Hillary S. Zilz
On February 3, 2022, in Newman v. Newman, 2022 NY Slip. Op. 00731, the First Department affirmed the Decision and Order of Justice Barry R. Ostrager, denying plaintiff’s motion to dismiss plaintiff’s individual causes of actions. Read More
July 1, 2021 Breach of Fiduciary Duty Claim Dismissed for Lack of Damages
On June 24, 2021, the First Department issued a decision in Besen v. Farhadian, 2021 NY Slip Op. 040… Read More
May 10, 2021 Questions of Fact Preclude Dismissal of Claims Against Indenture Trustee, Rejecting Argument That its Duties Were Merely Ministerial
On April 20, 2021, the First Department issued a decision in Bankers Conseco Life Ins. Co. v. Wilmin… Read More
March 29, 2021 Statute of Limitations for Breach of Fiduciary Duty Claim Based on Fraud is Six Years, Not Three
On March 25, 2021, the First Department issued a decision in Wimbledon Fin. Master Fund, Ltd. v. Hal… Read More
January 10, 2021 Conflict Claims Insufficient for Derivative Claim to Survive
On December 23, 2020, Justice Borrok of the New York County Commercial Division issued a decision in… Read More
December 28, 2020 Breach of Fiduciary Duty Claim Must Be Dismissed Where Duplicative of Breach of Contract Claim
On December 2, 2020, Justice Platkin of the Albany County Commercial Division issued a decision in R… Read More
December 20, 2020 Breach of Fiduciary Claim Dismissed as Duplicative of Contract Claim Because it Was Based on Breach of Duties Assigned by Contract
On December 2, 2020, Justice Platkin of the Albany County Commercial Division issued a decision in R… Read More
December 16, 2020 Allegations That Directors Were Acquainted With Interested Party Insufficient Basis for Claim That They Were Not Disinterested
On December 03, 2020, the First Department issued a decision in Matter of Cadus Corp. Stockholders L… Read More
November 3, 2020 Court Enforces Disclaimer of Fiduciary Duty
On October 20, 2020, the First Department issued a decision in La Scoula D'Italia Guglielmo Marconi … Read More
October 8, 2020 Fiduciary Duty Claims Based on Joint Venture Fail Without Provision Providing for Sharing Losses as Well as Profits
On October 1, 2020, the First Department issued a decision in Shionogi Inc. v. Andrx Labs, LLC, 2020… Read More
September 6, 2020 A Claim for an Accounting May be Made Whenever a Fiduciary Relationship Exists
On August 20, 2020, Justice Masley of the New York County Commercial Division issued a decision in S… Read More
July 31, 2020 Accounting Claim Dismissed for Failure Adequately to Allege a Fiduciary Relationship
On July 16, 2020, Justice Borrok of the New York County Commercial Division issued a decision in Kar… Read More
July 27, 2020 Allegations Insufficient to Show Existence of a Joint Venture
On July 22, 2020, the Second Department issued a decision in MacKay v. Paesano, 2020 NY Slip Op. 041… Read More
July 4, 2020 Accountants Did Not Have Fiduciary Duty to Client
On June 18, 2020, Justice Borrok of the New York County Commercial Division issued a decision in Dea… Read More
May 24, 2020 To State a Conspiracy to Breach Fiduciary Duty Claim, All Alleged Conspirators Must Owe Fiduciary Duties
On May 8, 2020, Justice Borrok of the New York County Commercial Division issued a decision in Sands… Read More
May 12, 2020 Breach of Fiduciary Duty Claims Timely Even Though Alleged Breach Merely Renewed Earlier, Time-Barred Breaches
On May 7, 2020, the First Department issued a decision in Ganzi v. Ganzi, 2020 NY Slip Op. 02740, ho… Read More
March 10, 2020 Fiduciary With Unfettered Discretion Cannot Exercise That Discretion in Bad Faith
On February 27, 2020, the First Department issued a decision in Shatz v. Chertok, 2020 NY Slip Op. 0… Read More
February 19, 2020 LLC's Managing Members Owed Fiduciary Duties to Non-Managing Member
On January 3, 2020, Justice Scarpulla of the New York County Commercial Division issued a decision i… Read More
November 21, 2019 Open Repudiation Toll Doctrine Inapplicable to Claim for Money Damages for a Breach of Fiduciary Duty
On November 14, 2019, the First Department issued a decision in Matter of Yin Shin Leung Charitable … Read More
October 14, 2019 Faithless Servant Claim Requires Defendant to Have Acted Directly Against Employer's Interests as in Embezzlement, Improperly Competing or Usurping Business Opportunities
On October 1, 2019, the First Department issued a decision in Bluebanana Group v. Sargent, 2019 NY S… Read More
September 26, 2019 Lender - Borrower Relationship Does Not Give Rise to Fiduciary Duty
On September 11, 2019, Justice Cohen of the New York County Commercial Division issued a decision in… Read More
July 20, 2019 Shareholders Did Not Breach Duty to Company by Operating Competing Companies
On July 10, 2019, the Second Department issued a decision in Laffey v. Laffey, 2019 NY Slip Op. 0552… Read More
June 23, 2019 Non-Client Adequately Alleged Fiduciary Duty Claims Against Law Firm
On June 11, 2019, the First Department issued a decision in Devlin v. Greenberg Traurig, LLP, 2019 N… Read More
April 27, 2019 Conduct Amounting to Nothing More than Common Business Practice Cannot Be Basis for Aiding and Abetting Breach of Fiduciary Duty Claim
On April 4, 2019, Justice Scarpulla of the New York County Commercial Division issued a decision in… Read More
February 12, 2019 Conspiracy to Breach Fiduciary Duty Claim Properly Dismissed for Failure to Allege Facts Relating to Acts in Support of Conspiracy
On February 1, 2019, the Fourth Department issued a decision in Cohen & Lombardo, P.C. v. Conno… Read More
January 11, 2019 Breach of Fiduciary Duty Claim Dismissed Under Business Judgment Rule
On December 26, 2018, Justice Bransten of the New York County Commercial Division issued a decision … Read More
November 26, 2018 Joint Venture's Controlling Shareholder Liable for Aiding and Abetting Manager's Breach of Fiduciary Duty
On October 22, 2018, Justice Ramos of the New York County Commercial Division issued a decision in U… Read More
October 14, 2018 Contractual Right to Take Actions Cannot Shield Fiduciary From Breach of Fiduciary Duty Claim if Fiduciary Acted in Bad Faith
On September 28, 2018, Justice Scarpulla of the New York County Commercial Division issued a decisio… Read More
August 1, 2018 Accounting Denied For Lack of Fiduciary or Confidential Relationship
On July 25, 2018, the Second Department issued a decision in Lake Overlook Partners, LLC v. Sosa, 20… Read More
July 24, 2018 Breach of Fiduciary Duty Claim Dismissed on Summary Judgment for Lack of Damages
On July 10, 2018, Justice Schecter of the New York County Commercial Division issued a decision in B… Read More
June 28, 2018 Breach of Fiduciary Claim Reinstated; it Was Not Duplicative of Contract Claim Because it Sought Separate and Distinct Relief
On June 20, 2018, the Second Department issued a decision in Slocum Realty Corp. v. Schlesinger, 201… Read More
April 16, 2018 Sexual Harassment of Employees is Not a Breach of an Executive's Fiduciary Duties to His Employer
On April 2, 2018, Justice Scarpulla of the New York County Commercial Division issued a decision in … Read More
April 4, 2018 Close Friendship Insufficient to Create Fiduciary Relationship
On March 29, 2018, the First Department issued a decision in Benzies v. Take-Two Interactive Softwar… Read More
January 5, 2018 Fiduciary Duty Claim Against Former Counsel Based on Conflict Timely Even Though Malpractice Claim Untimely
On December 28, 2017, the First Department issued a decision in Palmeri v. Willkie Farr & Gallagher … Read More
November 7, 2017 Fiduciary Duty Claim Dismissed as Duplicative of Contract Claim
On November 2, 2017, the First Department issued a decision in Elmrock Opportunity Master Fund I, L.… Read More
November 1, 2017 Breach of Contract May be Breach of Fiduciary Duty, But Only for Professionals
On October 19, 2017, the First Department issued a decision in Panattoni Development Co., Inc. v. Sc… Read More
October 11, 2017 LLC Does Not Owe Fiduciary Duties to its Members
On September 28, 2017, Justice Kornreich of the New York County Commercial Division issued a decisio… Read More
August 2, 2017 First Department Reaffirms Indenture Trustee's Fiduciary Duties
On August 1, 2017, the First Department issued a decision in Cece & Co. Ltd. v. U.S. Bank N.A., 2017… Read More
June 26, 2017 Attorney for 50% Shareholder Had No Fiduciary Duty to Other Shareholder
On June 7, 2017, the Second Department issued a decision in Gall v. Colon-Sylvain, 2017 NY Slip Op. … Read More
April 12, 2017 No Conspiracy to Breach Fiduciary Duty Claim When Underlying Tort Not Alleged
On March 29, 2017, Justice Oing of the New York County Commercial Division issued a decision in Sira… Read More
April 11, 2017 Collateral Manager Not Entitled to Expense Payments Greater Than Provided by Contract
On March 31, 2017, Justice Kornreich of the New York County Commercial Division issued a decision in… Read More
April 7, 2017 Negligent Representation Claim Fails; No Special Relationship
On April 4, 2017, the First Department issued a decision in Coöperative Centrale Raiffeisen-Boerenl… Read More
March 12, 2017 Art Dealer Forfeits Commission Under Faithless Servant Doctrine
On February 27, 2017, Justice Ramos of the New York County Commercial Division issued a decision in … Read More
February 6, 2017 LLC Member Does Not Owe Fiduciary Duty To Managing Member Or To The LLC Itself
On January 31, Justice Singh of the New York County Commercial Division issued a decision in Landes … Read More
December 21, 2016 Escrow Agent Has Fiduciary Duty to Persons With a Beneficial Interest in the Escrowed Property
On December 14, 2016, the Second Department issued a decision in Sasidharan v. Piverger, 2016 NY Sli… Read More
November 30, 2016 Board Did Not Breach Fiduciary Duty By Entering Into Management Contract With Former Employees
On November 22, 2016, the First Department issued a decision in Doppelt v. Denahan, 2016 NY Slip Op.… Read More
November 27, 2016 Party Who Agreed to Be Tie-Breaker Vote for LLC Members Had Fiduciary Duty to Members
On November 21, 2016, Justice Ritholtz of the Queens County Commercial Division issued a decision in… Read More
November 23, 2016 Former Employees Can be Ordered to Repay Salaries under Faithless Servant Doctrine
On November 22, 2016, the First Department issued a decision in Beach v. Touradji Capital Management… Read More
November 1, 2016 Managing Member of LLC Has Fiduciary Duty to Both LLC and Other Members
On October 11, 2016, Justice Friedman of the New York County Commercial Division issued a decision i… Read More
August 14, 2016 Designation of Party As Agent Did Not Make it a Fiduciary
On August 5, 2016, Justice Kornreich of the New York County Commercial Division issued a decision in… Read More
July 15, 2016 Prior to Default, RMBS Trustees Owe Note Holders Extracontractual Duty to Perform Basic Functions
On July 5, 2016, the First Department issued a decision in Commerce Bank v. Bank of N.Y. Mellon, 201… Read More
April 15, 2016 Business Judgment Does Not Protect Decision Where Some Partners Benefited Differently Than Others
On April 12, 2016, the First Department issued a decision in Pokoik v. Norsel Realties, 2016 NY Slip… Read More
March 29, 2016 Six-Year Statute of Limitations Applies to Breach of Fiduciary Duty Claims Sounding in Fraud
On March 15, 2016, the First Department issued a decision in Cusimano v. Schnurr, 2016 NY Slip Op. 0… Read More
January 23, 2016 Controlling Shareholders Did Not Have Fiduciary Duty to Minority Shareholder
On January 12, 2016, the First Department issued a decision in Arnett v. Charles Morgan Securities I… Read More
December 31, 2015 Taking or Copying Customer Lists is Breach of Fiduciary Duty Even if Not Trade Secrets
On November 21, 2015, Justice Grays of the Queens County Commercial Division issued a decision in Pa… Read More
August 11, 2015 Action May Be Brought Against Accountants For Failing To Disclose Client’s Employee's Financial Wrongdoing
On July 21, 2015, Justice Demarest of the Kings County Commercial Division issued a decision in JAG … Read More
November 15, 2014 Former Employees Preliminarily Enjoined from Carrying On New Business
On November 3, 2014, Justice Whelan of the Suffolk County Commercial Division issued a decision in F… Read More
October 11, 2014 Assessment of Damages Against Financial Advisor for Aiding and Abetting Breaches of Fiduciary Duty
Interesting reading: a post by Richards, Layton & Finger, P.A. on the assessment of damages for … Read More
July 12, 2014 Claims Dismissed for Failure to Present Evidence of Proximate Causation
On June 30, 2014, Justice Sherwood of the New York County Commercial Division issued a decision in M… Read More
June 19, 2014 Action Against Referral Service Fails
On June 9, 2014, Justice Sherwood of the New York County Commercial Division issued a decision in Vi… Read More
March 8, 2014 Court Identifies Elements of Claim for Aiding and Abetting Undue Influence
On February 28, 2014, Justice Scarpulla of the New York County Commercial Division issued a decision… Read More
January 29, 2014 Board Did Not Have Fiduciary Duty to Maximize Shareholder Benefit in Merger Where There was No Change of Control or Break-up
On January 13, 2014, Justice Friedman of the New York County Commercial Division issued a decision i… Read More
January 23, 2014 Director Breaches Fiducary Duty in Selling Corporate Shares to Himself
On December 24, 2013, Justice Whelan of the Suffolk County Commercial Division issued a decision in … Read More
November 5, 2013 Statute of Limitations Not Tolled by Equitable Estoppel
On October 28, 2013, Justice Whelan of the Suffolk County Commercial Division issued a decision in N… Read More
October 31, 2013 Existence of Fiduciary Duty Depends on Role in Which Party is Acting
On October 30, 2013, the Second Department issued a decision in Varveris v. Zacharakos, 2013 N.Y. S… Read More