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 »
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Commercial Division Blog
Posts Categorized: Commercial
Corporate Waste Claim Defeated by Business Judgment Rule
On October 9, 2019, the Second Department issued a decision in Witty v. Wallace, 2019 NY Slip Op. 07316, holding that a corporate waste claim was defeated by the business judgment rule, explaining: The plaintiff and the defendant Judith Wallace are each 50% owners of 1650 Fifth Avenue Corp., Inc (hereinafter the corporation), which owns... Read more »
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 »
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 »
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 »
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 »
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 »
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 »
Text Relating to Negotiation of Agreement Is Not A Binding Agreement
On October 4, 2019, Justice Masley of the New York County Commercial Division issued a decision in RVW Prods. Corp. v. Levin, 2019 NY Slip Op. 32937(U), holding that a text regarding the negotiation of an agreement did not itself constitute a binding agreement, explaining: To state a claim for breach of contract, a plaintiff... Read more »
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 »