On January 8, 2020, the Second Department issued a decision in Levy v. Nissani, 2020 NY Slip Op. 00113, holding that a statement that the counterclaimants were “scammers,” “con artists” and “thieves” was a sufficient basis for a claim for defamation, explaining: The elements of a cause of action sounding in defamation are (1) a... Read more »
Blogs
Commercial Division Blog
Posts Categorized: Commercial
Counterclaim Cannot Involve Time-Barred Claims as Set-off Unless It Arises From Same Transaction or Occurrence
On January 2, 2020, Justice Schecter of the New York County Commercial Division issued a decision in Capone v. LDH Mgt. Holdings LLC, 2020 NY Slip Op. 30013(U), holding that a counterclaim cannot involve time-barred claims as a set-off unless the time-barred claims arise from the same transaction or occurrence as the claim against which... Read more »
E-mails and Unsigned Documents Not Documentary Evidence Under CPLR 3211(a)(1)
On December 18, 2019, the Second Department issued a decision in S & J Serv. Ctr., Inc. v. Commerce Commercial Group, Inc., 2019 NY Slip Op. 09049, holding that emails and unsigned documents were not documentary evidence under CPLR 3211(a)(1), explaining: On a pre-answer motion to dismiss pursuant to CPLR 3211, the pleading is to... Read more »
Court Refuses to Vacate Default Judgment Despite Conclusory Assertions That Service Not Received When Defendant Admitted Being Aware of the Action
On January 2, 2020, the First Department issued a decision in Fisher v. Lewis Constr. NYC Inc., 2020 NY Slip Op. 00041, refusing to vacate a default judgment despite conclusory denials of service, explaining: Defendant failed to establish a reasonable excuse for its default. Plaintiff properly served defendant corporation by means of service upon the... Read more »
Plaintiffs’ Obligation to Perform Not Excused by Defendant’s Alleged Non-Material Breaches of Agreement
On December 24, 2019, Justice Cohen of the New York County Commercial Division issued a decision in Aktiv Assets LLC v. Centerbridge Partners, L.P., 2019 NY Slip Op. 33736(U), holding that a plaintiff’s obligation to perform was not excused by the defendant’s alleged non-material breach of the agreement, explaining: Even if the agreements were viewed... Read more »
Law Firm Disqualified Based on Prior Representation in a Related Matter
On December 23, 2019, Justice Cohen of the New York County Commercial Division issued a decision in Bessemer Trust Co., N.A. v. Hart, 2019 NY Slip Op. 33744(U), disqualifying a law firm based on its prior representation of the plaintiff, explaining: It is a well-established rule that a lawyer may not represent a client in... Read more »
Veil Piercing Claim Rejected; Alleged Domination and Control Unrelated to Basis of Claim
On December 18, 2019, Justice Ostrager of the New York County Commercial Division issued a decision in Lam Pearl St. Hotel, LLC v. Golden Pearl Constr., LLC, 2019 NY Slip Op. 33750(U), rejecting a veil piercing claim because the alleged domination and control were unrelated to the basis for the plaintiff’s claim, explaining: Plaintiff Lam... Read more »
Alleged Lack of Documentary Evidence Referring to an Oral Contract Insufficient Basis for Dismissing Claim Alleging Such a Contract
On December 19, 2019, Justice Schecter of the New York County Commercial Division issued a decision in Ripka v. Stenzler, 2019 NY Slip Op. 33688(U), holding that an alleged absence of documentary referring to an oral contract was an insufficient basis for finding that no such contract existed, explaining: Defendants seek dismissal of the declaratory... Read more »
Three Year Statute of Limitations for Professional Malpractice Cannot be Extended by Re-characterizing Claims as Contract Claims
On December 26, 2019, the Third Department issued a decision in WSA Group, PE-PC v. DKI Eng’g & Consulting USA PC, 2019 NY Slip Op. 09339, holding that the three-year statute of limitations for professional malpractice cannot be extended by re-characterizing claims as contract claims, explaining: A three-year statute of limitations governs actions to recover... Read more »
Fraud Claim Dismissed; Plaintiff’s Reliance on Alleged Misrepresentations was Unreasonable Due to Plaintiff’s Failure to Exercise Due Diligence
On December 26, 2019, the First Department issued a decision in Unique Goals Intl., Ltd. v. Finskiy, 2019 NY Slip Op. 09381, affirming the dismissal of a fraud claim because the plaintiff’s reliance on the alleged representations was unreasonable, explaining: We affirm the dismissal of the fraud cause of action on the ground that the... Read more »