On March 12, 2019, Justice Schecter of the New York County Commercial Division issued a decision in Beatrice Invs., LLC v. 940 Realty LLC, 2019 NY Slip Op. 30605(U), holding that claims relating to injury to an LLC were permissible direct claims when they also related to a separate injury to the plaintiff, explaining: Defendants argue... Read more »
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Commercial Division Blog
Posts Categorized: Commercial
Court Denies Motion to Dismiss Malpractice Claim Relating to Settlement Despite Plaintiff’s Allocution to the Settlement Terms
On March 7, 2019, Justice Borrok of the New York County Commercial Division issued a decision in Rosenberg Feldman Smith, LLP v. Ninety Five Madison Co., L.P., 2019 NY Slip Op. 30582(U), denying a motion to dismiss a legal malpractice claim, explaining: To state a claim for legal malpractice, the movant must establish that an attorney failed... Read more »
Once Claim on Principal is Time-Barred, Suit to Recover Post-Maturity Interest on Principal is Time-Barred as Well
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 »
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 »