On November 27, 2018, Justice Bransten of the New York County Commercial Division issued a decision in Boesky v. Levine, 2018 NY Slip Op. 33017(U), holding that a break in representation barred an attempt to toll the statute of limitations under the continuous representation doctrine, explaining:

With respect to Levine, the complaint alleges that he initially promoted the remainder interest tax strategy in 2002 and then proceeded to form the LLCs needed to execute the strategies from 2002 to 2004. Between 2002 and 2004, plaintiffs invested various amounts in these entities and claimed charitable deductions based upon the strategy from 2002 to 2005. Pursuant to CPLR 214(6), an action for nonmedical professional malpractice must be commenced within three years of the date of accrual. Claims for legal malpractice accrue when the malpractice is committed, not when the client learns of it. Therefore, any claims sounding in professional malpractice that are based upon Levine’s advice to participate in the remainder interest tax strategy and the services he provided in order to implement the strategies are untimely under the three year statute of limitations set forth in CPLR 214(6).

Plaintiffs assert, however, that the complaint pleads allegations that Levine continued to represent them in connection with the remainder interest tax strategy until 2016 by advising them on how to proceed with the IRS ‘sand the NYSDF’s challenges to their use of the strategy. Therefore, plaintiffs contend, the continuous representation doctrine applies to toll the statute of limitations. Pursuant to the doctrine of continuous representation, the time within which to sue on the claim is tolled until the attorneys continuing representation of the client with regard to the particular matter terminates. The continuous representation doctrine tolls the running of the statute of limitations on a cause of action against a professional defendant only so long as the defendant continues to represent the plaintiff in connection with the particular transaction which is the subject of the action and not merely during the continuation of a general professional relationship. For the doctrine to apply, there must be a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim.

Here, the complaint does not allege that there was an express, mutual agreement to advise plaintiffs on the effect of the remainder interest tax strategy after Levine’s original advice.

Plaintiffs seemingly rely on the principle that the law recognizes that the supposed completion of the contemplated work does not preclude application of the continuous representation toll if inadequacies or other problems with the contemplated work timely manifest themselves after that date and the parties continue the professional relationship to remedy those problems. In this regard, a notion to dismiss pursuant to CPLR 3211(a)(5) will be denied unless the facts establish that a gap between the provision of professional services on the particular matter is so great that the representation cannot be deemed continuous as a matter of law.

Here, the complaint alleges that plaintiffs received counsel from Levine between 2002 to 2004 regarding the tax strategy, However, it was not until three years later, in 2007, that Levine began to counsel them on the same subject matter — i.e., how to handle the IRS’s and NYSDTF’s challenges to the strategy. This three-year gap between the provision of Levine’s services on this matter is so great that the representation cannot be deemed continuous. As such, any claims based upon the advice rendered by Levine from 2002 through 2004 are untimely.

(Internal quotations and 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 a claim is barred by the statute of limitations.

On December 4, 2018, the First Department issued a decision in 47-53 Chrystie Holdings LLC v. Thuan Tam Realty Corp., 2018 NY Slip Op. 08239, upholding a fraud claim despite the plaintiff’s failure to differentiate between the acts of different defendants, explaining:

The complaint states a cause of action for fraud against the individual defendants. Contrary to defendants’ contention, the fact that it refers to the seller shareholders as the “Individual Defendants” does not render the claim insufficiently particularized as to any of the individual defendants. The term “Individual Defendants” does not refer to a diverse group of defendants to whom entirely different acts giving rise to the action may be attributed; it refers to the eight shareholders of the single corporate defendant, each of whom is alleged to have made the same false representation, to wit, that no corporate documents existed. At this stage of the proceedings, it is reasonable to infer that the individual shareholders knew whether this closely held corporation maintained corporate documents and thus that they participated in the alleged wrongful conduct by representing that no documents existed.

(Internal citations omitted).

Commercial litigation frequently involves fraud-based claims. Such claims have special pleading requirements such as the particularity requirement at issue in this decision. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have a question regarding a fraud-based claim.

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On November 28, 2018, Justice Sherwood of the New York County Commercial Division issued a decision in Garcia v Banco BCT S.A., 2018 NY Slip Op. 32989(U), holding that the court lacked subject matter jurisdiction over a non-resident’s claim against a foreign bank, explaining:

Banking Law section 200-g provides that:
2. Except as otherwise provided in this chapter, an action or special proceeding against a foreign banking corporation may be maintained by another foreign corporation or foreign banking corporation or by a non-resident in the following cases only:

• (a) where the action is brought to recover damages for the breach of a contract made or to be performed within this state, or relating to properly situated within this state at the time of the making of the contract:
• (b) where the subject matter of the litigation is situated within this state:
• (c) where the cause of action arose within this state, except where the object of the action or special proceeding is to affect the title of real property situated outside this state:
• (d) where the action or special proceeding is based on a liability for acts done within this state by a foreign banking corporation:
• (e) where the defendant is a foreign banking corporation doing business in this state

Plaintiff claims subsections (d) and (e) apply here. Because there is personal jurisdiction under CPLR 302(a)(1), which provides that a court may exercise personal jurisdiction over any non-domiciliary, or his executor or administrator, who in person or through an agent transacts any business within the state or contracts anywhere to supply goods or services in the state. Plaintiff acknowledges that both provisions require that the action arise from or be based on the acts or business done by the non-domiciliary within the State of New York. Accordingly, this argument fails for the same reason as the personal jurisdiction argument above.

(Internal quotations and citations omitted).

The New York Supreme Court is a court of general jurisdiction, so questions of subject matter jurisdiction rarely arise. However, as this decision shows, there are statutes that prevent some types of claims from being heard in the court. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have questions regarding a court’s jurisdiction to hear a claim.

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On November 29, 2018, Justice Scarpulla of the New York County Commercial Division issued a decision in Lam Platt St. Hotel LLC v. Golden Pearl Constr. LLC, 2018 NY Slip Op. 33018(U), enforcing a contract provision limiting damages, explaining:

The Contract contains a mutual waiver provision, in Rider 8.0A, which clearly limits the damages Lam Platt may seek for breach. Specifically, that provision prohibits recovery of consequential damages arising out of or related to the Contract, except for gross negligence or willful misconduct, which Lam Platt has not alleged. Moreover, the parties explicitly waived recovery of damages for profit. Similarly, Lam Platt’s claim for financing damages has also been waived. This clear agreement between the parties on the allocation of the risk of loss in the event of a breach must be honored. Accordingly, the first cause of action for breach of contract is dismissed to the extent that it asserts damages for lost profits and consequential damages.

(Internal quotations and citation omitted).

A key element in commercial litigation is calculating damages. Contract clauses limiting damages are common and how they are enforced can make a big difference in whether, and if so, how, you litigate an action. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have questions regarding a contractual damages limitation clause.

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On November 28, 2018, Justice Bransten of the New York County Commercial Division issued a decision in Domus Arbiter Realty Corp. v. Bayrock Group LLC, 2018 NY Slip Op. 33021(U), holding that the doctrine of respondeat superior imposes liability on the employer, not the supervisor, explaining:

Plaintiff has alleged, however, an alternative theory that Defendant McGorty is personally liable pursuant to the doctrine of respondeat superior. It is undisputed that Defendant Zampolli was an employee of Paramount Realty Group of America Corp. Plaintiff alleges, however, that Defendant McGorty, rather than Paramount Realty Corp., held the broker’s license under which Defendant Zampolli is alleged to have operated, thus constituting an employer subject to vicarious liability.

While Defendant McGortv may hold the broker’s license under which Defendant Zampolli operated, the doctrine of respondeat superior does not impose liability on the individual supervisor, rather it serves to impose liability on the corporation. Absent a reason to pierce the corporate veil, New York’s law protects a corporate officer from individual liability. Therefore, the doctrine of respondeat superior, is a nonviable cause of action against Defendant McGorty.

(Internal citations omitted).

Respondeat superior is the legal doctrine under which an employer is responsible for an employee’s wrongdoing. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have questions regarding a situation where an employer may be liable for an employee’s actions.

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On November 28, 2018, Justice Schecter of the New York County Commercial Division issued a decision in Tall Tower Capital LLC v. Stonepeak Partners, LP, 2018 NY Slip Op. 33024(U), dismissing a fraud claim because the plaintiff’s alleged reliance was not reasonable, explaining:

To allege a cause of action based on fraud, plaintiff must assert a misrepresentation or a material omission of fact which was false and known to be false by defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury. Whether a party’s reliance is justified is often a question of fact not amenable to resolution on a motion to dismiss. In certain situations, however, it is question of law that can be determined from the pleadings.

Stonepeak’s fraud claims are dismissed for lack of justifiable reliance. A sophisticated plaintiff cannot establish that it entered into an arm’s length transaction in justifiable reliance on alleged misrepresentations if that plaintiff failed to make use of the means of verification that were available to it. This rule applies where the falsity of a representation could have been ascertained by reviewing publicly available information.

The status of the Florida injunction was a matter of public record and could have been independently ascertained by Stonepeak. Stonepeak does not contend otherwise. Stonepeak does not allege that it took any steps to verify whether Denton’s questionnaire response regarding the status of the lawsuit was accurate. Hence, Stonepeak’s claim to have been fraudulently induced to continue working on the Clear Channel deal in reliance on that representation must be dismissed because such reliance is not justifiable due to Stonepeak’s own lack of due diligence. Stonepeak’s negligent misrepresentation claims are dismissed for the same reason.

(Internal quotations and citations omitted).

Commercial litigation frequently involves fraud-based claims. Such claims have special pleading requirements or rules, including the rule that a sophisticated businessperson’s reliance on a false statement must be reasonable. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client think you have been defrauded, or if someone has accused you or a client of defrauding them.

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On November 28, 2018, Justice Masley of the New York County Commercial Division issued a decision in Matter of Sayre v. Madison Hawk Partner, LLC, 2018 NY Slip Op. 33030(U), refusing to vacate an arbitral award for arbitrator bias, explaining:

As an initial matter, petitioners’ communication was not improper. Paragraph 19 of the Operating Agreement grants the arbitrator the power to award attorneys’ fees of a party if the arbitrator expressly determines that the party against whom such award is entered has caused the dispute, controversy or claim to be submitted to arbitration as a dilatory tactic or in bad faith. Indeed, respondents requested that the arbitrator award it legal fees. This is not a case of a secret communication with the arbitrator.

Respondents have a heavy burden of establishing arbitrator bias by clear and convincing evidence. Contrary to respondents’ argument, there is no per se rule that any communication with an arbitrator regarding payment of fees impairs the integrity of the arbitration process. Respondents’ reliance on Ament v Schubert Piano Co, 172 AD 423 (1st Dept 1916), for this proposition is misplaced since it was decided before the Federal Arbitration Act was enacted in 1925 and long before the public’s enthusiastic support for arbitration.

Courts have found an appearance of bias where there is evidence that a party was prejudiced or denied a fair hearing as a result of an arbitrator’s knowledge that the party failed to pay its portion of the arbitration fees. For example, where the arbitrator barred a party from participating in five days of a seven day hearing, the court found fundamental unfairness and vacated the award. Further, this is not a case where a party could not afford to pay the arbitral fees and is penalized for penurious. Otherwise, respondents’ reliance on cases involving improper arbitrator demands for payment is misplaced. There is no suggestion that respondents were denied a full and fair opportunity to be heard. Indeed, the decision is well drafted and well reasoned. The court declines respondents’ invitation to infer bias or a conflict of interest without any evidence.

(Internal quotations and citations omitted).

Complex commercial litigation involves more than courts. Disputes often are–by agreement–decided by private arbitrators. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have a question regarding a dispute that is subject to an arbitration agreement.

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On November 27, 2018, Justice Bransten of the New York County Commercial Division issued a decision in Schon Family Found. v. Brinkley Capital Ltd., 2018 NY Slip Op. 33027(U), holding that defendants could not avoid summary judgment on a breach of contract claim by arguing that there was an oral modification of the contract, explaining:

A written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms. The plain language of Section 4 of the Settlement Agreement clearly imposes an obligation on Defendants to make monthly payments to Plaintiffs in addition to the one-time payment to the Foundation. This obligation is also reiterated in Paragraph Seven of the Settlement Agreement, which defines an event of default as any failure to make any payment set forth in the Settlement Agreement. Therefore, the Settlement Agreement clearly creates an obligation for Defendants to make payments to Plaintiffs.

It is undisputed that Defendants failed to make the required monthly payments in May 2015 and failed to remit the onetime payment of $76,000 to the Foundation before April 30, 2015. Pursuant to the Settlement Agreement, in the event Defendants failed to make any payments, Plaintiffs were required to send Defendants a demand to cure within five business days. Then, if Defendants failed to cure, Defendants would be in default without any further right to cure and Plaintiffs had the right to commence an action to enforce the Settlement Agreement. Plaintiffs sent the Notice of Default on September 21, 2015. It is undisputed that Defendants failed to cure on or before September 28, 2015. Therefore, Plaintiffs have established that Defendants breached the Settlement Agreement.

Defendants argue there was no breach because Henry Schon modified the Settlement Agreement by entering into an oral forbearance agreement with Emanuel Wolff in the summer of 2015. Pursuant to the purported oral forbearance agreement, Mr. Schon allegedly agreed to forbear on any action relating to the Schon Loan amount until January, 2016.

General Obligations Law § 15-301(I) provides a written agreement 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.

If the only proof of an alleged agreement to deviate from a written contract is the oral exchanges between the parties, the writing controls. Here, the Settlement Agreement provides the agreement may not be modified, altered or amended in any way, except by a writing executed by each of the parties affected by such modification, alteration or amendment.

However, General Obligations Law § 15-30 I(1) only prohibits executory oral modification of written contracts. Once executed, the oral modification may be proved. Where there is only partial performance of the oral modification sought to be enforced, a party claiming oral modification can only prevail upon proof that there was an oral modification and that the performance occurred in a manner that was unequivocally referable to that oral modification. See id. Here, the performance of the purported forbearance agreement was not completed because Plaintiffs served the Notice to Cure in September 2015 and brought this action to enforce the Settlement Agreement in November 2015. Thus, the Court must determine whether Defendants raise an issue of fact regarding the existence and partial performance of the purported oral forbearance agreement.

To establish the existence of an enforceable agreement, a party must establish an offer, acceptance of the offer, consideration, mutual assent, and an intent to be bound. The Court notes there is a dispute as to whether Mr. Schon ever agreed to forbear from taking action on Defendants’ default under the Settlement Agreement. Mr. Wolff attests that Mr. Schon agreed not to take any action and agreed to meet with Mr. Wolff in January 2016 to work out a resolution. On the other hand, Mr. Schon attests that he never agreed to forbear in July 2015, yet he unilaterally decided not to take action until after Rosh Hashana. Nevertheless, the Court finds this issue of fact insufficient to deny summary judgment, as Defendants fail to raise an issue of fact regarding the consideration for the forbearance agreement.

It is well settled that valuable consideration may consist of some right, interest, profit or benefit accruing to one party, or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other. Here, Defendants fail to allege or provide evidence that Mr. Schon received any consideration for his purported promise not to take action regarding the defaults under the Settlement Agreement. As noted above, Defendants were obligated to make payments to Plaintiffs pursuant to Paragraph Four. Yet, at the time Mr. Schon allegedly agreed to forbear, Defendants had already missed the required monthly payments since May 2015 and failed to make the one-time payment due to the Foundation in April 2015. Without an allegation or evidence regarding the consideration received for Mr. Schon’s promise, Defendants cannot raise a material issue of fact regarding the existence of the alleged oral forbearance agreement. Therefore, Defendants fail to raise a triable issue of fact regarding the purported modification.

Furthermore, while not addressed in the parties’ briefs, there is an additional exception to the writing requirement pursuant to Section 15-301 of the General Obligations Law. Once a party to a written agreement has induced another’s significant and substantial reliance upon an oral modification, the first party may be estopped from invoking the statute to bar proof of that oral modification. Nevertheless, the Court finds this exception does not apply, as Defendants fail to demonstrate any significant or substantial reliance upon Mr. Schon’s alleged promise to forbear on any action relating to the default. Defendants fail to allege or provide any evidence of a change in their course of conduct in reliance on the promise. Therefore, Defendants fail to raise an issue of fact regarding the estoppel exception to General Obligations Law § 15-30 I.

(Internal quotations and citations omitted).

Oral contracts are (usually) enforceable in New York, but as this decisions shows, once you have a written contract, there are hurdles to claiming that there was an oral modification to the contract. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client face a situation where you are unsure how to enforce rights you believe you have under an oral contract.

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On December 5, 2018, the Second Department issued a decision in Palmieri v. Town of Babylon, 2018 NY Slip Op. 08317, holding that a movant was not required to prove willful and contumacious conduct in order to prevail on a motion for civil contempt, explaining:

As an initial matter, the Supreme Court should not have required the plaintiff to prove willful and contumacious conduct on the part of the Town. In order to sustain a finding of civil contempt, it is not necessary that the disobedience be deliberate or willful; rather, the mere act of disobedience, regardless of its motive, is sufficient if such disobedience defeats, impairs, impedes or prejudices the rights of a party.

In order to adjudicate a party in civil contempt, a court must find: (1) that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, (2) that the party against whom contempt is sought disobeyed the order, (3) that the party who disobeyed the order had knowledge of its terms, and (4) that the movant was prejudiced by the offending conduct. The party seeking a finding of civil contempt must prove these elements by clear and convincing evidence.

Here, the plaintiff established by clear and convincing evidence that the so-ordered stipulation clearly expressed an unequivocal mandate to construct a fence at the Southern end of South Little East Neck Road extending across the entire width of the Town’s property at that location, that the Town had knowledge of the stipulation and nevertheless disobeyed it, and that the plaintiff was prejudiced by the offending conduct.

In opposition, the Town failed to refute the plaintiff’s showing or to offer evidence of a defense such as an inability to comply with the order. The Town, which offered no witnesses at the hearing, failed to establish that DEC approval is required to comply with the stipulation. The Town’s permit application for the construction of a fence extending into Great South Bay is entirely different from the fence contemplated under the parties’ stipulation, and the Town failed to establish that any regulation prevents it from constructing the fence it promised to erect in 2004, approximately 14 years ago. Accordingly, the Supreme Court should have granted that branch of the plaintiff’s motion which was to hold the Town in civil contempt for failing to comply with the stipulation, as well as that branch of the plaintiff’s motion which was for an award of costs and attorney’s fees incurred in connection with bringing the motion.

(Internal quotations and citations omitted).

No matter who you are (even a municipal government) or what kind of litigation you are involved in, you must obey the court’s orders. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have have been accused of violating a court order.

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On November 15, 2018, Justice Ramos of the New York County Commercial Division issued a decision in Shields v. Murstein, 2018 NY Slip Op. 32964(U), holding that a “mere theory as to the Board’s misconduct is insufficient to meet” the demand particularity requirements for a derivative action under Delaware law, explaining:

In a final attempt to salvage his claims, Shields argues that demand was futile because the Board acted in bad faith in failing to timely and meaningfully address unlawful activity related to the Publications. Bad faith, and therefore demand futility, may be established where the complaint successfully alleges that directors failed to take adequate steps to remediate known compliance issues. But this is not the case here.

The Complaint fails to support its claims with requisite specificity. Shields makes sweeping statements that the Director Defendants engaged in a conspiracy without specifying who did what, never mind when, where or how. Shields’ basis for his allegations is again the Board’s lack of minutes, resolutions or presentations relating to Frigo in response to his Inspection Demand. A mere theory as to the Board’s misconduct is insufficient to meet the particularity requirements of Rule 23.1.

(Internal citations omitted).

This decision illustrates one of the special pleading requirements for derivative actions (where a shareholder brings an action on behalf of a corporation). Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have questions regarding bringing an action on behalf of a corporation or other business entity.

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