On March 21, 2019, the Court of Appeals issued a decision in Ajdler v. Province of Mendoza, 2019 NY Slip Op. 02151, holding that once a claim on a bond’s principal is time-barred, a claim for post-maturity interest on that principal is time-barred as well, explaining: Plaintiff maintains that the logical extension of our holding... Read more »
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Commercial Division Blog
Posts Categorized: Commercial
Lack of Retainer Agreement Does Not Bar Counsel from Recovering For Work on Account Stated Theory
On March 12, 2019, the First Department issued a decision in Carling v. Peters, 2019 NY Slip Op. 01713, holding that the lack of a signed retainer letter does not bar counsel from recovering for work on an account stated theory, explaining: [Defendant] claims she could not have paid him due to the absence of a... Read more »
Non-Signatories Not Bound by Agreement to Arbitrate
On February 25, 2019, Justice Scarpulla of the New York County Commercial Division issued a decision in H. Roske & Assoc., Llp v Burghart, 2019 NY Slip Op 30479(U), holding that parties that did not sign an agreement to arbitrate are not required to arbitrate a dispute, explaining: A party may not be compelled to arbitrate... Read more »
Judicial Estoppel Bars Defendant From Taking Factual Position Different From That Taken in Earlier Actions or Proceedings
On February 28, 2019, Justice Platkin of the Albany County Commercial Division issued a decision in Whiteman Osterman & Hanna, LLP v. Preserve Assoc., LLC, 2019 NY Slip Op. 29056, holding that judicial estoppel barred a defendant from taking factual position different from that taken in earlier actions or proceedings, explaining: An estoppel rests upon the... Read more »
Contract Claim Dismissed for Lack of Damages
On February 27, 2019, Justice Sherwood of the New York County Commercial Division issued a decision in Neumann v. Sotheby’s Inc., 2019 NY Slip Op. 30508(U), dismissing a breach of contract claim for lack of damages, explaining: To sustain a breach of contract cause of action, plaintiff must show: (1) an agreement; (2) plaintiff’s performance;... Read more »
Court Grants Forum Non Conveniens Motion
On February 28, 2019, Justice Ostrager of the New York County Commercial Division issued a decision in Fernie v. Wincrest Capital Ltd., 2019 NY Slip Op. 30510(U), granting a forum non conveniens dismissal, explaining: Ordinarily, nonresidents are permitted to enter New York courts to litigate their disputes as a matter of comity. However, the common-law doctrine... Read more »
Common Law Indemnification Claims Dismissed For Lack of Vicarious Liability or Fault
On March 1, 2019, Justice Ostrager of the New York County Commercial Division issued a decision in Stone & Broad Inc. v. Nextel of N.Y., Inc., 2019 NY Slip Op. 30527(U), dismissing common-law indemnification claims for lack of vicarious liability or fault, explaining: Nextel argues that the Second Cause of Action must be dismissed because Stone’s... Read more »
No Yellowstone Injunction Where Tenant Cannot Cure Breach of Lease
On March 5, 2019, the First Department issued a decision in Bliss World LLC v. 10 W. 57th St. Realty LLC, 2019 NY Slip Op. 01509, holding that a tenant was not entitled to a Yellowstone injunction when it could not cure the lease breaches, explaining: The purpose of a Yellowstone injunction, which tolls the... Read more »
Business Valuation Not Protected by Attorney-Client Privilege
On February 28, 2019, the Third Department issued a decision in Galasso v. Cobleskill Stone Prods., Inc., 2019 NY Slip Op. 01483, holding that a business valuation was not protected by the attorney-client privilege, explaining: The attorney-client privilege shields from disclosure any confidential communications between an attorney and his or her client made for the purpose... Read more »
Claim Time-Barred Because it Was Not Assigned to Plaintiff Until After Statute of Limitations Had Run
On February 28, 2019, the First Department issued a decision in Rizack v. Signature Bank, N.A., 2019 NY Slip Op. 01494, holding that a claim was time-barred because it was not assigned to the plaintiff until after the statute of limitations had run, explaining: In September 2007, West End Financial Advisors LLC entered into a... Read more »