On July 1, 2020, Justice Scarpulla of the New York County Commercial Division issued a decision in Farago Advertising, Inc. v. Barnes & Noble, Inc., 2020 NY Slip Op. 32106(U), dismissing an account stated claim because of the plaintiff’s irregular billing practices, explaining: An account stated is an agreement between parties to an account based... Read more »
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Commercial Division Blog
Posts Categorized: Commercial
Cross-Motion for Summary Judgment Made After Statutory Deadline Rejected
On May 11, 2020, Justice Livote of the Queens County Commercial Division issued a decision in WDF Inc. v. Andron Constr. Corp., 2020 NY Slip Op. 31980(U), rejecting a cross-motion for summary judgment made after the statutory deadline for filing, explaining: [T]he branch of the cross motion for summary judgment dismissing the seventh cause of... Read more »
Complaint Dismissed for Failure to Seek Default Judgment Within One Year
On July 1, 2020, the Second Department issued a decision in 16501 Jamaica Ave., LLC v. Hara, 2020 NY Slip Op. 03635, dismissing a complaint because of the plaintiff’s failure to seek a default judgment, explaining: In March 2016, the plaintiff commenced this action, inter alia, to recover on a personal guaranty. The defendant failed... Read more »
Tortious Interference with Prospective Business Relations Claim Fails for Lack of Evidence of Wrongful Means or Malice
On July 1, 2020, the Second Department issued a decision in Astro Kings, LLC v. Scannapieco, 2020 NY Slip Op. 03637, holding that the plaintiff’s tortious interference with prospective business relations claim failed for lack of evidence of wrongful means or malice, explaining: [W]e agree with the Supreme Court’s determination that the Silvio defendants were... Read more »
Attorneys Seeking Tax Returns in Discovery Must Show They Are Indispensable
On April 22, 2020, Justice Knipel of the Kings County Commercial Division issued a decision regarding whether personal tax returns were discoverable. In Safir v Charm City House, LLC, 2020 NY Slip Op. 31619(U), Justice Knipel confirmed longstanding New York precedent that a party’s tax returns are not discoverable absent a showing that they are... Read more »
Delay in Moving to Amend No Basis for Denying Motion if There is no Prejudice
On June 18, 2020, Justice Borrok of the New York County Commercial Division issued a decision in Dual Diagnosis Treatment v. Complete Bus. Solutions, 2020 NY Slip Op. 31936(U), holding that delay in moving to amend is no basis for denying the motion if the other party is not prejudiced, explaining: Pursuant to CPLR §... Read more »
Fraud Claim Cannot be Based on Lost Profits
On June 25, 2020, the First Department issued a decision in Arena Riparian LLC v. CSDS Aircraft Sales & Leasing Co., 2020 NY Slip Op. 03589, holding that a fraud claim cannot be based on lost profits, explaining: The fraud-based claims should also be dismissed because plaintiffs have not adequately alleged actual pecuniary loss sustained... Read more »
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 Deane v. Brodman, 2020 NY Slip Op. 31880(U), holding that accountants did not have a fiduciary duty to their client, explaining: To prevail on a cause of action for breach of fiduciary duty, a plaintiff must prove the... Read more »
Specific Representations and Warranties Control Over General “As Is” Clause
On June 12, 2020, Justice Friedman of the New York County Commercial Division issued a decision in Valero Refining-Meraux LLC v Murphy Oil Corp., 2020 NY Slip Op. 31835(U), holding that specific representations and warranties control over a general “as is” clause, explaining: As a threshold matter, the court rejects defendant’s contention that the action... Read more »
Mental Illness Does Not Make a Person Not of Suitable Discretion to Receive Service
On June 15, 2020, Justice Cohen of the New York County Commercial Division issued a decision in Patel v. Patel, 2020 NY Slip Op. 31864(U), rejecting the argument that mental illness rendered a person not of suitable discretion to receive service, explaining: Defendant contends that the Court lacks personal jurisdiction over Defendant because the individual... Read more »