Blogs

Commercial Division Blog

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

Posts Categorized: Commercial

Posted: September 1, 2020

Answer to Amended Complaint May Contain Affirmative Defenses That Could Have Been, But Were Not, Raised in Initial Answer

On August 26, 2020, the Second Department issued a decision in Seidler v. Knopf, 2020 NY Slip Op. 04799, holding that an answer to an amended complaint may contain affirmative defenses that could have been raised in an earlier answer, but were not, explaining: When an amended complaint has been served, it supersedes the original... Read more »

Posted: August 31, 2020

Bringing an Action Maliciously An Insufficient Basis for an Abuse of Process Claim

On August 26, 2020, the Second Department issued a decision in Seidler v. Knopf, 2020 NY Slip Op. 04800, holding that an abuse of process claim could not be premised on allegedly suing someone maliciously, explaining: We disagree, however, with the Supreme Court’s determination to deny that branch of the plaintiffs’ motion which was for... Read more »

Posted: August 30, 2020

Trust Beneficiary Cannot Sue On Behalf of Trust Unless She Has Made a Demand on the Trustee and the Trustee Has Refused

On August 27, 2020, the First Department issued a decision in Zachariou v. Manios, 2020 NY Slip Op. 04811, holding that a trust beneficiary could not bring an action on behalf of the trust unless she had made a demand on the trustee that had been refused or that such a demand would be futile,... Read more »

Posted: August 25, 2020

Consolidation Inappropriate Where Plaintiff in One Action is the Defendant in the Other

On August 14, 2020, Justice Masley of the New York County Commercial Division issued a decision in Advanced Alternative Media, Inc. v. Hindlin, 2020 NY Slip Op. 32680(U), holding that consolidation is inappropriate where the plaintiff in one action is a defendant in the other, explaining: Hindlin’s request to consolidate this action with Jacob Kasher... Read more »

Posted: August 24, 2020

Fraudulent Inducement Claim Cannot Be Based on Alleged Lack of Intention to Perform a Contract

On August 19, 2020, the Second Department issued a decision in Cypress Med. Surgical Servs., LLC v Jodol Realty Corp., 2020 NY Slip Op. 04534, holding that a fraudulent inducement claim cannot be based on an alleged lack of intention to perform a contract, explaining: We also agree with the Supreme Court’s determination to grant... Read more »

Posted: August 23, 2020

Tortious Interference With a Prospective Business Relationship Claim Fails Without Allegations of Wrongful Means or Malicious Purpose

On August 10, 2020, Justice Masley of the New York County Commercial Division issued a decision in GMX Tech., LLC v. Pegasus Capital Advisors, L.P., 2020 NY Slip Op. 32634(U), holding that a claim for tortious interference with a prospective business relationship fails without allegations of wrongful means or malice, explaining: GMX alleges that defendants... Read more »

Posted: August 22, 2020

Defense Barred by Tax Estoppel

On August 20, 2020, the Fourth Department issued a decision in Rizzo v. National Vacuum Corp., 2020 NY Slip Op. 04693, holding that defendants were prevented by the doctrine of tax estoppel from denying that the plaintiff owned the percentage of the company reflected in the tax returns the defendants prepared, explaining: A party to... Read more »

Posted: August 21, 2020

Standard for Amending a Complaint Lower Than Standard for Surviving a Motion to Dismiss

On August 19, 2020, the Second Department issued a decision in Katz v. Hampton Hills Assoc. Gen. Partnership, 2020 NY Slip Op. 04545, holding that a decision that the plaintiffs had met the standard for amending their complaint did not mean that they had met the higher burden needed to survive a motion to dismiss,... Read more »