On July 5, 2019, Justice Masley of the New York County Commercial Division issued a decision in WZ USA, LLC v. United Rest. Group Intl. Inc., 2019 NY Slip Op. 32067(U), holding that a party waived its right to arbitrate by asserting claims in court, explaining: Li and Qifan contend that this litigation should be... Read more »
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Commercial Division Blog
Posts Categorized: Commercial
Plaintiff’s Delay in Bringing Suit or Exercising Other Remedies Did Not Waive Right to Sue
On July 3, 2019, Justice Schecter of the New York County Commerical Division issued a decision in Taxi Medallion Loan Trust III v. Benson Hacking Corp., 2019 NY Slip Op. 32069(U), holding that a plaintiff’s delay in bringing suit or exercising other remedies did not waive its right to sue, explaining: Defendants have also failed... Read more »
Merger Clause That Lacked Specificity Needed to Bar Fraud Claims
On July 15, 2019, Justice Sherwood of the New York County Commercial Division issued a decision in Doctors Allergy Formula, LLC v. Valeant Pharm. Intl., 2019 NY Slip Op. 32064(U), holding that a merger clause lacked the specificity needed to bar fraud claims, explaining: As a threshold issue, Valeant argues that plaintiffs fraud claims are... Read more »
Derivative Action Dismissed for Failure to Make Demand/Adequately Plead Demand Futility
On June 28, 2019, Justice Masley of the New York County Commercial Division issued a decision in Gammel v. Immelt, 2019 NY Slip Op. 32005(U), dismissing a derivative action for failure make a demand or adequately to allege demand futility, explaining: Business Corporation Law ยง 626 sets forth specific procedures that must be followed in... Read more »
Indenture’s No Action Clause Cannot Bar Claim for Unpaid Payments
On July 5, 2019, Justice Masley of the New York County Commerical Division issued a decision in Pala Assets Holdings Ltd v. Rolta, LLC, 2019 NY Slip Op. 32031(U), holding that an indenture’s no action clause cannot bar a claim for unpaid principal and interest, explaining: Rolta argues that attachment is barred by the 2018... Read more »
Court Explains Basis for Calculating Undertaking in Connection With An Injunction
On July 5, 2019, Justice Masley of the New York County Commercial Division issued a decision in Eastmore Mgt., LLC v. Gunta, 2019 NY Slip Op. 32040(U), illustrating the calculation of an undertaking in conjunction with an injunction: CPLR 6312(b) provides that prior to the granting of a preliminary injunction, the plaintiff shall give an... Read more »
Expert Report Excluded for Failure to Explain Basis for Opinions
On July 11, 2019, Justice Cohen of the New York County Commercial Division issued a decision in 30-32 W. 31st LLC v. Heena Hotel LLC, 2019 NY Slip Op. 32016(U), excluding an expert report because it failed to explain the basis for the expert’s opinions, explaining: Defendants seek to strike the report on the grounds... Read more »
Movant’s Inability to Find Evidence in its Possession Insufficient Grounds for Renewal
On July 11, 2019, Justice Friedman of the New York County Commercial Division issued a decision in Trimarco v. Edwards, 2019 NY Slip Op. 32019(U), holding that a movant’s inability to find evidence in its possession was insufficient grounds for renewal, explaining: Pursuant to CPLR 2221(e)(2) and (3), a motion for leave to renew shall... Read more »
Fraud Claim Not Duplicative of Contract Claim Because Alleged Misrepresentations Were Collateral to the Contract
On July 17, 2019, the Second Department issued a decision in Did-it.com, LLC v. Halo Group, Inc., 2019 NY Slip Op. 05644, holding that fraud claims were not duplicative of a contract claim because the alleged misrepresentations were collateral to the promises made in the contract, explaining: The essential elements of a cause of action... Read more »
Claim Dismissed as Derivative, Not Direct
On July 5, 2019, Justice Masley of the New York County Commercial Division issued a decision in 600-602 10th Ave. Realty Corp. v. Estate of HY Nusimow, 2019 NY Slip Op. 31993(U), dismissing a claim as derivative, not direct, explaining: Pinchevsky asserts that the first counterclaim must be dismissed because Larissa lacks standing as she... Read more »