On December 5, 2019, the First Department issued a decision in J.T. Magen & Co., Inc. v. Nissan N. Am., Inc., 2019 NY Slip Op. 08784, holding that a quantum meruit claim was barred by the existence of a contract covering the same subject matter even though the defendant did not sign the contract, explaining:... Read more »
Blogs
Commercial Division Blog
Posts Categorized: Commercial
Discovery on Defendant’s Motive for Breaching Contract Denied
On December 3, 2019, the First Department issued a decision in Bersin Props., LLC v. Nomura Credit & Capital, Inc., 2019 NY Slip Op. 08641, denying discovery on a defendant’s motive for breaching a contract, explaining: Supreme Court providently exercised its discretion in denying plaintiff’s discovery requests. Here, plaintiff sought discovery regarding defendant’s motives and... Read more »
Court Refuses to Stay Securities Class Action in Favor of Later-Filed Federal Class Action
On November 25, 2019, Justice Schecter of the New York County Commercial Division issued a decision in Matter of Greensky, Inc. Sec. Litig., 2019 NY Slip Op. 33515(U), refusing to stay a securities class action in favor of a later-filed federal securities class action, explaining: New York State was plaintiffs’ first choice of forum and... Read more »
Privilege Determined by Law of Location of Trial or of Proceeding Seeking Discovery
On November 27, 2019, the Second Department issued a decision in Askari v. McDermott, Will & Emery, LLP, 2019 NY Slip Op. 08547, holding that a question of privilege must be determined by the law of the location of trial or of the proceeding seeking the evidence, explaining: Here, in the complaint, the plaintiffs seek... Read more »
Striking Answer and Dismissal of Counterclaims as Discovery Sanction Upheld
On November 27, 2019, the Second Department issued a decision in Sparakis v. Gozzer Corp., 2019 NY Slip Op. 08590, upholding striking an answer and dismissing counterclaims as a discovery sanction, explaining: In July 2016, the plaintiffs served the defendants with a request for production of documents. The defendants did not respond to this demand... Read more »
Plaintiff Prevails at Traverse Despite Process Server’s Absence
On November 21, 2019, Justice Cohen of the New York County Commercial Division issued a decision in Eros Intl. PLC v. Mangrove Partners, 2019 NY Slip Op. 33461(U), holding that a plaintiff had established proper service despite the process server’s absence from the traverse hearing, explaining: At the traverse hearing, the burden fell on Eros... Read more »
Counsel Disqualified from Representing LLC and its Members
On November 21, 2019, Justice Scarpulla of the New York County Commercial Division issued a decision in 1186 Broadway Tenant LLC v. Friedman, 2019 NY Slip Op. 33463(U), disqualifying counsel from representing both an LLC and its members, explaining: It is well settled that a party has the right to representation by the attorney of... Read more »
Statue of Limitations for Action Brought by Trustee is Based on the Trustee’s Residence
On November 25, 2019, Justice Fahey of the Court of Appeals issued a decision in Deutsche Bank Natl. Trust Co. v. Barclays Bank PLC, 2019 NY Slip Op. 08519, holding that the statute of limitations for an action brought by a trustee is based on the trustee’s residence, explaining: We reaffirm that a cause of... Read more »
Directing RMBS Certificateholder Not “Effective” Plaintiff Causing Suit to Fail for Lack of Standing Under PSA’s No Action Clause
On November 21, 2019, Justice Friedman of the New York County Commercial Division issued a decision in Natixis Real Estate Capital Trust 2007-HE-2 v Natixis Real Estate Capital, Inc., 2019 NY Slip Op. 33438(U), holding that a directing RMBS certificateholder was not the “effective” plaintiff in an RMBS put-back action, which would cause the action... Read more »
Court Refuses to Consolidate Cases in Significantly Different Procedural Postures
On November 21, 2019, Justice Borrok of the New York County Commercial Division issued a decision in Summit Rest. Repairs & Sales, Inc. v. New York City Dept. of Educ., 2019 NY Slip Op. 33457(U), refusing to consolidate cases in significantly different procedural postures, explaining: CPLR 602(a) provides that: When actions involving a common question... Read more »