Commercial Division Blog

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

Posts Categorized: Commercial

Posted: October 26, 2019

Court of Appeals Accepts Certified Questions Regarding Cross-Jurisdictional Class Action Tolling

On August 29, 2019, the Court of Appeals accepted two certified questions from the Second Circuit in Tobias Bermudez Chavez v. Occidental Chem. Corp., etc., 2019 NY Slip Op. 78361: (1) whether New York law recognizes ʺcross‐jurisdictional class action tolling,ʺ i.e., tolling of a New York statute of limitations by the pendency of a class... Read more »

Posted: October 24, 2019

Loans Not Identified in Timely RMBS Putback Notice Still Subject to Putback Based on Later Notices, Which Related Back to First Notice

On October 10, 2019, the First Department issued a decision in U.S. Bank N.A. v. DLJ Mtge. Capital, Inc., 2019 NY Slip Op. 07327, holding that loans not identified in a timely RMBS put-back notice were still subject to put-back based on later notices, which related back to the initial, timely notice, explaining: The written... Read more »

Posted: October 23, 2019

Court Analyzes Adverse Interest Exception to in Pari Delicto Defense

On October 10, 2019, the First Department issued a decision in Conway v. Marcum & Kliegman LLP, 2019 NY Slip Op. 07338, analyzing the adverse interest exception to the in pari delicto defense: In this accounting malpractice action, plaintiffs, the liquidators of several hedge funds, allege that defendants failed to uncover fraudulent activity by the... Read more »

Posted: October 22, 2019

Plaintiff Waives Jury Trial Against all Defendants by Seeking Non-Incidental Equitable Claim Against one Defendant

On October 8, 2019, the First Department issued a decision in Errant Gene Therapeutics, LLC v. Sloan-Kettering Institute for Cancer Research, 2019 NY Slip Op. 07226, holding that a plaintiff irrevocably waives its right to a jury trial against all defendants on all of its claims arising out of the same alleged wrong by asserting... Read more »

Posted: October 21, 2019

Oral Joint Venture Agreement Barred by Statute of Frauds

On October 7, 2019, Justice Scarpulla of the New York County Commercial Division issued a decision in MProsiemo Ltd. v. Vaygensberg, 2019 NY Slip Op. 32955(U), holding that an oral joint venture agreement was barred by the statute of frauds, explaining: Vaygensberg argues that, even if the Ukrainian Agreement does not constitute a joint venture... Read more »

Posted: October 20, 2019

Constructive Eviction Suspends Obligation to Pay Rent

On October 8, 2019, Justice Emerson of the Suffolk County Commercial Division issued a decision in Board of Mgrs. of Manhasset Med. Arts Condominium v. Integrated Med. Professionals, PLLC, 2019 NY Slip Op. 51588(U), holding that a constructive eviction suspends a tenant’s obligation to pay rent, explaining: Contrary to Realty’s contentions, withholding the entire amount... Read more »

Posted: October 19, 2019

Commercial Reasonableness of Creditor’s Auction Disposing of Collateral Created Issue of Fact Regarding Damages

On October 4, 2019, Justice Schecter of the New York County Commercial Division issued a decision in Capital One Equip. Fin. Corp. v. Rami Cab Corp., 2019 NY Slip Op. 32934(U), holding that the commercial reasonableness of a creditor’s auction disposing of collateral created an issue of fact regarding damages, explaining: As to plaintiffs entitlement... Read more »

Posted: October 17, 2019

Upcoming Arguments in the Court of Appeals in October 2019

Upcoming argument in the Court of Appeals in October 2019 that may be of interest to commercial litigators: Deutsche Bank v Barclays Bank; Deutsche Bank v HSBC Bank USA APL-2018-00169 (Limitation of Actions—What Statute Governs–Whether plaintiff trustee’s breach of contract claims were barred by California’s four-year statute of limitations, pursuant to the borrowing statute of... Read more »