Commercial Division Blog

Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP

Posts Categorized: Commercial

Posted: August 18, 2014

Second Department Analyzes Rules Applying to the Admissibility of Out-of-State Affidavits

On August 13, 2014, the Second Department issued a decision in Midfirst Bank v. Agho, 2014 NY Slip Op. 05778, clarifying the law relating to the conformity of out-of-state affidavits as required by CPLR 2309(c). In Midfirst Bank, the Second Department prefaced its decision with an explanation of the salience of the foreign affidavit issue: Our Court is observing... Read more »

Posted: August 17, 2014

No Need for a Corporate Officer to Make Demand on Board Before Bringing BCL 706, 716 or 720 Actions

On August 6, 2014, Justice Demarest of the Kings County Commercial Division issued a decision in Kotlyar v. Khlebopros, 2014 NY Slip Op. 51185(U), holding that there is no need for a corporate officer to make a demand on the board of directors before bringing an action pursuant to BCL 706, 716 or 720. In Kotlyar, the... Read more »

Posted: August 16, 2014

Lack of Due Diligence no Bar to Fraud Claim When no Amount of Diligence Would have Uncovered Fraud

On August 4, 2014, Justice Schweitzer of the New York County Commercial Division issued a decision in Higher Education Management Group, Inc. v. Aspen University Inc., 2014 NY Slip Op. 32106(U), declining to dismiss a fraud claim for lack of due diligence when no amount of diligence would have uncovered the fraud. Counterclaim defendants contend... Read more »

Posted: August 15, 2014

Commercial Division Rules Amended to Add Rule Regarding Discovery of Non-Party ESI

The Chief Administrative Judge has signed an order adding a new rule regarding the discovery of electronically-stored information from non-parties. The new Commercial Division Rule 11-c and Appendix A, which goes into effect on September 2, 2014, provides: Rule 11-c. Discovery of Electronically Stored Information from Nonparties. Parties and nonparties should adhere to the Commercial... Read more »

Posted: August 14, 2014

Plaintiff States Contract Claim Based on Two Separate, Contemporaneous Documents

On August 7, 2014, Justice Demarest of the Kings County Commercial Division issued a decision in 833 Management, LLC v. Great Empire 65 Realty, LLC, 2014 NY Slip Op. 51189(U), finding that the plaintiff had stated a claim for breach of contract based on two contemporaneous documents. In 833 Management, the defendants moved to dismiss... Read more »

Posted: August 13, 2014

Supreme Court Decides Special Proceeding to Enjoin Trademark Violation Despite Co-Pending Federal Trademark Action

On August 4, 2014, Justice Ramos of the New York County Commercial Division issued a decision in Matter of Explorers Club Inc. v. Diageo PLC, 2014 NY Slip Op. 24218, granting judgment and a permanent injunction to the plaintiff in a summary proceeding brought under GBL § 135. Section 135 of the General Business Law... Read more »

Posted: August 12, 2014

First Department Addresses Scope of Federal Arbitration Act

On August 7, 2014, the First Department issued a decision in Cusimano v. Schnurr, 2014 NY Slip Op. 05702, addressing two issues that arise frequently in the context of commercial arbitration: (1) whether the parties’ arbitration agreement is covered by the Federal Arbitration Act (FAA), in which case threshold issues, such as the timeliness of the claims,... Read more »

Posted: August 11, 2014

Court Reminds Counsel of Procedure for Citing to Electronically-Filed Documents

On July 31, 2014, Justice Kornreich of the New York County Commercial Division issued a decision in MBIA Insurance Corp. v. Credit Suisse Securities (USA) LLC, 2014 NY Slip Op. 32025(U), raising in a footnote the issue of citation to electronically-filed exhibits. The decision in MBIA Insurance Corp. is about a discovery dispute. This post, however,... Read more »

Posted: August 10, 2014

Company Bound by Apparent Authority it Created in Former Officer

On August 8, 2014, the Fourth Department issued a decision in Pasquarella v. 1525 William St., LLC, 2014 NY Slip Op. 05745, holding that the defendant was bound by the apparent authority it created in its former president. In Pasquarella, the trial court granted the plaintiff summary judgment on its cause of action for specific... Read more »

Posted: August 9, 2014

CPLR 205 Tolls Statute of Limitations for Special Proceeding Improperly Brought as a Plenary Action

On July 30, 2014, Justice Friedman of the New York County Commercial Division issued a decision in Weksler v. Weksler, 2014 NY Slip Op. 32024(U), explaining the application of CPLR 205. In Weksler, the parties entered into an agreement that tolled the statute of limitations effective December 19, 2006. In 2007, the plaintiff brought a plenary... Read more »