On January 9, 2019, Justice Scarpulla of the New York County Commercial Division issued a decision in ABB, Inc. v. Havtech, LLC, 2019 NY Slip Op. 30095(U), enforcing a New York choice of law provision even though the contract had no connection to New York, explaining:

Havtech argues that the Agreement’s New York choice of law provision should not be enforced because the Agreement has no reasonable relationship to New York. However, pursuant to N.Y. General Obligations Law § 5-1401(1),

The parties to any contract, agreement or undertaking, contingent or otherwise, in consideration of, or relating to any obligation arising out of a transaction covering in the aggregate not less than two hundred fifty thousand dollars … may agree that the law of this state shall govern their rights and duties in whole or in part, whether or not such contract, agreement or undertaking bears a reasonable relation to this state.

Havtech alleges that it sells approximately three million dollars’ worth of Products yearly and is seeking millions of dollars per year in gross profit on sales of Products in damages, which Havtech was able to purchase and distribute pursuant to the Agreement. Therefore, the Agreement satisfies the requirements of General Obligations Law § 5-1401(1) and is not required to have a reasonable relation to New York for the choice of law provision to be enforceable.

Although Havtech argues that the choice of law provision should be voided on public policy grounds, Havtech makes no showing that the application of New York law would violate any important public policy. The parties’ choice of New York law should be enforced, unless the public policy of another jurisdiction has an overriding concern so strong that it trumps New York’s strong public policy in maintaining and fostering its undisputed status as the preeminent commercial and financial nerve center of the world.

That the Agreement may implicate Maryland’s Dealer Act is not sufficient grounds to override the parties’ choice of law provision here. The fact that a statute is a policy choice is not evidence of an interest materially greater than New York’s.

When parties include a choice-of-law provision in a contract, they intend that the law of the chosen state-and no other state-will be applied. Consistent with the unambiguous terms of the Agreement, New York substantive law applies to the Agreement and Havtech may not assert the Maryland Counterclaims pursuant to the Dealer Act.

(Internal quotations and citations omitted).

The parties to commercial contracts often chose both the forum in which any dispute over the contract will heard and the law governing the interpretation of the contract. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have a question regarding which law governs on contract and in which forum a dispute over the contract may be heard.

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On January 10, 2019, Justice Friedman of the New York County Commercial Division issued a decision in Matter of Quazzo v. 9 Charlton St. Corp., 2019 NY Slip Op. 30098(U), holding that a shareholder had failed to meet the standard for corporate dissolution on summary judgment, explaining:

Business Corporation Law § 1104-a (a) provides in pertinent part:

The holders of shares representing twenty percent or more of the votes of all outstanding shares of a corporation … entitled to vote in an election of directors may present a petition of dissolution on one or more of the following grounds: (1) The directors or those in control of the corporation have been guilty of illegal, fraudulent or oppressive actions toward the complaining shareholders; (2) The property or assets of the corporation are being looted, wasted, or diverted for non-corporate purposes by its directors, officers or those in control of the corporation.

Cristina fails on this record to demonstrate oppression as a matter of law. Oppressive actions have been defined to refer to conduct that substantially defeats the reasonable expectations held by minority shareholders in committing their capital to the particular enterprise. A court considering a petition alleging oppressive conduct must investigate what the majority shareholders knew, or should have known, to be the petitioner’s expectations in entering the partcular enterprise. There is authority that where a party has contributed capital or services to a corporation, oppression may be based on the very denial of a party’s shareholder status. Here, in contrast, it is undisputed that Cristina did not commit capital to Charlton (or the other corporations), and did not have an active role in Charlton (or the other corporations). Cristina does not submit legal authority, and the court does not find, that under these circumstances, Ugo’s denial of her status as a shareholder of Charlton rises to the level of oppression warranting dissolution of the corporation.

Nor does Cristina otherwise establish oppression on this record. As to her claim that she has been denied access to books and records of Charlton, it is undisputed that she did not demand such access until November 2010, after she requested a distribution from a family trust account and she rejected Ugo’s demand that she sign a general release as a condition of the distribution.

Cristina also fails to demonstrate oppression based on denial to her of distributions for Charlton, It is undisputed that Stephen and Marco each received a distribution from Charlton for 2010 of approximately $6,800. There is no evidence, however, that any other distributions—let alone, substantial distributions—were made over the many years in which Cristina claims she has had an ownership interest in Charlton.

To the extent that Cristina bases her oppression claim on forgery of her signature on corporate documents, she relies on the affidavit of Khody Detwiler, a forensic document examiner, opining that Cristina’s signature was forged on four corporate documents in 2003. Ugo and Stephen both deny any knowledge of: or involvement in, the alleged forgeries. Although their denials are conclusory, assessment of the expert’s opinion requires a credibility determination, which is not properly made on a motion for summary judgment.

Finally, Cristina’s claim of financial mismanagement is based on the affidavit of James Donohue, Cristina’s forensic accountant, opining that rents have not been paid into the corporation’s accounts, funds have been transferred to third-party accounts (of Walter Gabutti and Fiorella Carli), and taxes have not been paid. Ugo opposes this claim, stating in conclusory fashion: “Insofar as I am concerned, nothing inappropriate has taken place.” Stephen denies ever having had any involvement in the management of Charlton or the other corporations, and states that Ugo alone managed the corporations. He further claims that, after he learned of Cristina’s allegations in these lawsuits, he urged his father to hire an independent third-party property management firm. Citing Cristina’s allegations of mismanagement, Stephen asserts that the only evidence of asset misuse, if any, points to Ugo. Neither Ugo nor Stephen submits evidence responding to the claims of Cristina’s forensic accountant. Nevertheless, Mr. Donohue forthrightly acknowledges that certain records regarding rents and deposits were unavailable to him, and that he made estimates or relied on evidence not in the record, in calculating the discrepancy between rents and tax returns and between loans to the corporations from third parties and transfers from the corporate accounts to third party accounts. The court accordingly holds that Mr. Donohue’s opinion cannot be adequately assessed on this record and that a triable issued of fact exists as to the alleged mismanagement.

(Internal quotations and citations omitted).

This decision relates to a significant part of our practice: business divorce (a break-up between the owners of a closely-held business). Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have questions regarding a business divorce.

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On January 17, 2019, the First Department issued a decision in Lehman Bros. Intl. (Europe)(in administration) v. AG Fin. Prods., Inc., 2019 NY Slip Op. 00364, holding that even though a contract gave the defendant the discretion to take certain acts, it had to exercise that discretion reasonably, explaining:

Despite the discretion afforded to defendant under the parties’ agreements to calculate its loss after the agreements had been terminated, plaintiff raised an issue of fact as to whether defendant’s loss calculation was reasonable and in good faith as required by the agreements. The court properly considered plaintiff’s evidence, including expert reports, in support of its claim that defendant’s calculations were not reasonable under the circumstances.

(Citations omitted).

The implied covenant of good faith and fair dealing is an important, if often misunderstood, part of New York law. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client face a situation where a party is being deprived of the benefits of its contract, even if you cannot point to a specific contract term that is being breached.

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On January 17, 2019, the First Department issued a decision in AmBase Corp. v. Spruce Capital Partners LLC, 2019 NY Slip Op. 00352, holding that the appeal of the denial of a preliminary injunctyion was moot because the act sought to be enjoined already had occurred, explaining:

Insofar as plaintiffs seek a preliminary injunction, that remedy is a legal impossibility, and the appeal is moot. The strict foreclosure that plaintiffs sought to enjoin occurred more than a year ago, in late August or early September 2017, and we denied plaintiffs’ motion for a stay, pending this appeal, of so much of the order as dissolved the TRO that had been granted.

Plaintiffs’ request for a declaratory judgment is not moot, because plaintiff 111 West 57th Investment LLC (Investment) might be entitled to damages from defendant 111 W57 Mezz Investor LLC (Junior Mezz Lender) if it is judicially determined that Investment had the right to object to the strict foreclosure pursuant to Uniform Commercial Code (UCC) § 9-620(a)(2)(B). However, the complaint, as currently pleaded, mentions neither damages nor a constructive trust. Similarly, the complaint does not allege that the Spruce defendants acted in bad faith because they colluded with other defendants who are not party to this appeal or that Investment was entitled to object to the strict foreclosure under UCC 9-621(a)(1).

(Internal quotations and citations omitted).

It is common in commercial litigation that parties seek equitable relief such as injunctions, attachments or the appointment of a temporary receiver in order to preserve assets or maintain the status quo when money damages will not make them whole at the end of a litigation. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have questions regarding seeking–or opposing–such relief.

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On November 5, 2018, Justice Livote of the Queens County Commercial Division issued a decision in FCS Group, LLC v. Chica, 2018 NY Slip Op. 33433(U), extending a plaintiff’s time to serve even though the plaintiff did not show good cause for failing timely to serve, explaining:

CPLR 32ll(a)(8) provides that a party may move the court to dismiss a cause of action against him where the court lacks personal jurisdiction over that defendant. For a Court to have personal jurisdiction over a corporate defendant, service of process must be made upon an officer, director, managing or general agent, or cashier or assistant cashier or to any other agent authorized by appointment or by law to receive service. Section 306(b) of the Business Corporation Law provides that service of process upon a corporate defendant may be completed by personally serving the secretary of state as agent for that defendant.

CPLR 306-b states in pertinent part that: if service is not made upon a defendant within the time provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service.

The time provided to effectuate service upon a defendant after commencement of an action is one hundred twenty days.

To establish good cause, a plaintiff must demonstrate reasonable diligence in attempting service . Good cause may also be found to exist where the plaintiff’s failure to timely serve process is a result of circumstances beyond the plaintiff’s control. However, good cause will not exist where a plaintiff fails to make any effort at service, or fails to make at least a reasonably diligent effort at service.

In the absence of good cause shown courts must consider the interest of justice standard of CPLR 306-b. The interest of justice standard does not require reasonably diligent efforts at service, but courts, may consider the presence or absence of diligence, along with other factors.

Additional factors to be considered include the expiration of the statute of limitations, the meritorious nature of the action, the length of delay in service, the promptness of a request by the plaintiff for an extension, and prejudice to the defendant.

Here, plaintiff has failed to demonstrate good cause for failing to serve defendant MAVI within 120 days after commencement of this action. While plaintiff has shown diligence in its attempts to serve defendant MAVI, as evidenced by the affidavit of plaintiff’s process server, plaintiff has failed to explain why it did not serve process on the secretary of state as agent for MAVI. Thus, plaintiff has failed to show good cause in its failure to serve defendant MAVI by serving process on the secretary of state within 120 days after commencement of this action.

Regarding the attempted service of defendant Chica, plaintiff explains, in its papers, that it attempted to serve defendant Chica by visiting the defendant’s last known address, but received no answer after ringing the doorbell. Plaintiff’s process server then conducted a database search and found a “David Chica” listed at 62-82 60th Drive; the same address listed on the New York State Department of State Division of Corporations website for MAVI. Plaintiff made several more attempts to serve defendant Chica at this 60th Drive address, but was unsuccessful. Plaintiff’s process server was unable to locate a forwarding address for defendant Chica. Accordingly, plaintiff has demonstrated good cause for its failure to serve defendant Chica through its diligence in attempting to effectuate service, which was unsuccessful due to circumstances outside the plaintiff’s control.

Although plaintiff has not demonstrated good cause in its attempts to serve defendant MAVI, it has demonstrated that, in the interest of justice, its service of defendant MAVI should be considered timely, nunc pro tunc.

To extend time of service in the interest of justice under CPLR 306-B, the court may weigh several factors. Here, the length in delay of service outside the 120-day time frame was minimal (seven days) and plaintiff has shown, in its papers, that defendant MAVI had actual notice of the suit according to defendant Haque’s deposition testimony. There is also an indication that defendant MAVI sought to avoid service by plaintiff because plaintiff’s process server called the number listed for MAVI, where a female answered the phone by saying “MAVI” and immediately hung up after the process server asked for MAVI’s location. This is not disputed in defendants’ reply. Furthermore, defendants have failed to demonstrate that they would be prejudiced.by granting of plaintiff’s cross-motion because defendants had notice of the underlying action, as evidenced by defendant Haque’s testimony explaining that he not only told defendants MAVI and Chica about the lawsuit, but also that defendant MAVI is paying for defendant Haque’s legal representation.

(Internal quotations and citations omitted).

The rules regarding how you start a lawsuit and bring the defendants into it can sometimes be esoteric. As shown here, there are rules regarding how long a plaintiff has to serve a defendant. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have a question regarding the proper way to serve a defendant, bringing them into a lawsuit.

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On November 14, 2018, Justice Grays of the Queens County Commercial Division issued a decision in Energy Conservation Group, LLC v. Applied Underwriters, Inc., 2018 NY Slip Op. 33436(U), granting a motion to amend even though there was a delay in making the motion, explaining:

CPLR §3025(b) provides that leave to amend a pleading shall be freely given upon such terms as may be just. As a general rule, the amendment of a complaint will be permitted where there is no significant prejudice or surprise to the defendant. Prejudice in this context means that the nonmoving party has been hindered in the preparation of its case or has been prevented from taking some measure in support of its position.

In the case at bar, the amendment of the answer is warranted for several reasons. First, the Applied defendants’ extended delay in moving to amend their answer required them to offer a reasonable excuse for the delay, a requirement that they met by showing that they have been waiting for determinations to be made in other forums. While an earlier interposition of the counterclaims would have been much preferable, their excuse, coupled with other factors, is sufficiently, though barely, plausible. Second, tardiness does not bar the amendment of a pleading unless it resulted in significant prejudice to the other side. In the case at bar, the plaintiffs have been aware of the debts allegedly due to the Applied defendants for years, and the assertion of the counterclaims now should not take them by surprise, especially because of the reservation of rights in previous answers. Third, the claims asserted by the plaintiffs and the claims asserted by the Applied defendants share at least some issues in common, and judicial economy would be served by determining all of the claims in one action. In this complex dispute, the interest of judicial economy is the heaviest factor in allowing the amendment sought by the Applied defendants. Fourth, the assertion of the counterclaims should not unduly delay the trial of this action, since the parties have not concluded discovery, and the extensive discovery already conducted would be relevant tc the common issues raised by the parties. The plaintiffs did not persuade the court on this motion that sweeping additional discovery would be necessary. Moreover, in the case at bar, the need, if any, for additional discovery does not amount to prejudice sufficient to justify denial of an amendment. Fifth, a party seeking to amend his pleading has the burden of establishing that the proposed amendment has merit. But, the Court should not examine the merits or legal sufficiency of the proposed amendment beyond determining whether the amendment is palpably insufficient or patently devoid of merit on its face. The proposed counterclaims of the Applied defendants are not patently without merit.

(Internal quotations and citations omitted).

In New York, the courts are very generous in allowing a party to amend its pleadings. However, there are limits to this generosity. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have a question regarding whether it is too late to amend your claims or answer.

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On January 4, 2019, Justice Scarpulla of the New York County Commercial Division issued a decision in Kahan Jewelry Corp. v. First Class Trading, L.P., 2019 NY Slip Op. 30039(U), rejecting a defense that an arbitration agreement was signed under duress, explaining:

It is well settled that repudiation of an agreement on the ground that it was procured by duress requires a showing of both (1) a wrongful threat, and (2) the preclusion of the exercise of free will. An agreement procured under duress must be promptly disaffirmed, or otherwise deemed to have been ratified. Objections to the validity of an arbitration agreement allegedly entered into under duress are waived if the objecting party participates in the arbitration.

Here, Berkovits claims that he was coerced into signing the arbitration agreement on behalf of his companies at the Beit Din, and only did so under duress. However, Berkovits is a sophisticated business owner who executed the agreement, and he has submitted no objective evidence to show that he could not have declined to execute the agreement. Most importantly, Berkovits did not disaffirm the agreement at any time thereafter, and in fact, proceeded with and participated in the arbitration. Berkovits’ argument that he was denied the right to counsel is also without merit. After his Toen resigned, he had time to procure new counsel, however did not do so.

Even though the matter was closed, upon request by Berkovits for one more appearance, the Beit Din gave him the opportunity to appear once more on November 13, 2017. He appeared at the final hearing, presented evidence on his own and then told the arbitrators that he had no further evidence to introduce.

Further, his contention that the Beit Din improperly conditioned continued hearings on the execution of an arbitration agreement by Susan Berkovits is also meritless. Upon close examination of the email exchange from December 2017, as well as letters from petitioners’ counsel, it is clear that no one was attempting to coerce Susan Berkovits into attending the arbitration, or conditioning continued hearings on the execution of an arbitration agreement by Susan Berkovits. Rather, the correspondence simply explained that as someone who guaranteed the obligations at issue, she “may wish” to appear at the arbitration, and the later correspondence explained that if she did not appear, there would be no reason to have any further sessions because all the evidence had already been submitted.

(Internal quotations and citations omitted).

As this decisions discusses, a claim of duress can relate to economic duress, and not just the paradigm case of someone being forced to sign a contract with a gun to their head. But, as this decision also shows, the standards for pleading duress are demanding. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have questions regarding a contract entered into under duress.

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On January 9, 2019, the Second Department issued a decision in C.C.C. Renovations, Inc. v. Victoria Towers Dev. Corp., 2019 NY Slip Op. 00089, holding that a subcontractor should have prevailed on a Lien Law claim, explaining:

Lien Law § 3 provides that a contractor who performs labor or furnishes materials for the improvement of real property with the consent, or at the request of, the owner shall have a lien for the principal and interest, of the value, or the agreed price, of such labor or materials upon the real property improved or to be improved and upon such improvement, from the time of filing a notice of such lien. The lienor must establish the amount of the outstanding debt by submitting proof of either the price of its contract or the value of the labor and materials supplied. The amount of the lien is limited by the contract under which it is claimed, and ordinarily a lienor is bound by the price term contained in the contract to which it is a party.

The lienor’s right to recover is further limited by principles of subrogation. Thus, no individual mechanic’s lien can exceed the total amount owed by the owner to the general contractor at the time of the filing of the notice of lien. The subcontractor’s right to recover is derivative of the right of the general contractor to recover, and if the general contractor is not owed any amount under its contract with the owner at the time the subcontractor’s notice of lien is filed, then the subcontractor may not recover.

Here, the plaintiff established its prima facie entitlement to judgment as a matter of law on its causes of action to foreclose the mechanic’s liens it filed through evidence establishing, inter alia, the amounts owed for the services it provided at the property under the relevant subcontracts, and that those amounts did not exceed the amount owed by the owners to the general contractor, Blue Diamond. In opposition, Victoria Towers and Westchester Fire failed to raise a triable issue of fact.

(Internal quotations and citations omitted).

We frequently litigate disputes over the sale or leasing of, or construction relating to, commercial property. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you are involved in a dispute regarding a commercial real estate transaction or construction.

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On January 2, 2019, Justice Sherwood of the New York County Commercial Division issued a decision in Greenberg v. DeRosa, 2019 NY Slip Op. 30046(U), granting summary judgment in lieu of complaint on notes, explaining:

CPLR 3213 provides for accelerated judgment where the instrument sued upon is for the payment of money only and where the right to payment can be ascertained from the face of the document without regard to extrinsic evidence. An action on a promissory note is an action for payment of money only. The usual standards for summary judgment apply to CPLR 3213 motions. The instrument and evidence of failure to make payments in accordance with its terms constitute a prima facie case for summary judgment.

The debt and the defendant’s default are undisputed. It is undisputed the notes are an instrument for the payment of money only, and the proper subject for a motion for summary judgment in lieu of complaint.

According to General Obligations Law§ 15-301, a written agreement or other written instrument which contains a provision to the effect that it cannot be changed orally, cannot be changed by an executory agreement unless such executory agreement is in writing and signed by the party against whom enforcement of the change is sought or by his agent. The Notes at issue contain such a provision. There is no writing signed by Greenberg changing the maturity date of the notes or promising to forbear. Nor is there an admission by Greenberg of such a representation, other than the promise to forbear until March 19, 2018. As far as DeRosa claims they had an oral agreement to forbear, as the parties dispute the very terms and conditions of the alleged oral forbearance, their discussions do not qualify as a substitute for the required writing.

As far as DeRosa claims Greenberg breached the implied covenant of good faith and fair dealing, the implied covenant embraces a pledge that neither party shall do anything that will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract. A breach of the covenant is a breach of the contract itself. The covenant of good faith and fair dealing is breached when a party acts in a manner that, although not expressly forbidden by the contractual provision, would deprive the other party of the benefits of the agreement.

The covenant encompasses any promises that a reasonable person in the position of the promisee would be justified in understanding were included. However, the obligations imposed by an implied covenant of good faith and fair dealing are limited to obligations in aid and furtherance of the explicit terms of the parties’ agreement. The covenant cannot be construed so broadly as to nullify the express terms of a contract, or to create independent contractual rights. To establish a breach of the implied covenant, the plaintiff must allege facts that tend to show that the defendants sought to prevent performance of the contract or to withhold its benefits from the plaintiff.

Greenberg’s forbearance to enforce the notes is not a term of the notes, nor does it have. the effect of destroying or injuring DeRosa’s right to receive the fruits of the contract or the benefits of the underlying agreement. In fact, as the covenant cannot be construed so broadly as to nullify the express terms of a contract, or to create independent contractual rights, the court cannot construe the failure to forbear to be a breach of the covenant, as that would effectively nullify the express terms of the contract. As the elements of the claim are undisputed, and De Rosa has failed to allege facts which could constitute a defense, let alone provide admissible evidence, the motion shall be granted.

(Internal quotations and citations omitted).

Cases in the Commercial Division of the New York courts usually involve a motion to dismiss at the outset and then a motion for summary judgment at the close of discovery, so such motions are a big part of our practice. The decision above is about a special procedure in New York for quickly resolving claims relating to unpaid notes or similar documents allowing the plaintiff to move for summary judgment at the beginning of an action. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have questions about seeking or opposing a motion for pre-trial dismissal or judgment of a commercial lawsuit.

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On December 13, 2017, Justice Paris of the Onondaga County Commercial Division issued a decision in Jesiolowski Enters., Inc. v. Data Key Holdings, LLC., 2017 NY Slip Op. 52025(U), holding that a contract term limiting the time in which to assert a claim was unenforceable because it was not clear, unambiguous, reasonable and fair, explaining:

Although parties to a contract may agree to limit the period of time within which an action must be commenced to a shorter period than that provided by the applicable statute of limitations, the intent to abbreviate the limitation period must be set forth in a clear and unambiguous manner. Moreover, the abbreviated period must not be unreasonably short or unfair.

Here the APA and the ICA must be read and interpreted together as they were executed contemporaneously and are both integral and non-dispensable instruments of the transaction. When doing so, the two year duration period set forth in the ICA renders the one year shortened limitation period provided for in the APA as ambiguous, unreasonably short, and, therefore, unenforceable.

(Internal citations omitted).

It is not unusual for the statute of limitations to be an issue in complex commercial litigation. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have questions regarding whether claims are barred by the statute of limitations.

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