Commercial Division Blog

Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: June 28, 2014

Court Should Have Decided Motion for Summary Judgment Even Though Filed More Than 120 days After the Note of Issue

On June 25, 2014, the Second Department issued a decision in Shao v. Cao, 2014 NY Slip Op. 04733, requiring a trial court to hear a dispositive motion even though it was filed more than 120 days after the Note of Issue was filed.

In Shao, the Second Department reversed a trial court decision denying a motion for summary judgment because it was untimely. One defendant, the Second Department found, timely filed on the 120th day after filing the Note of Issue. As to the other defendants, it ruled:

[A]lthough that branch of the motion of the defendants Wei’s Realty Corp., Perfect Funding Corp., and NYC Funding Center, Inc. (hereinafter collectively the corporate defendants), which was for summary judgment dismissing the complaint insofar as asserted against them was untimely, it was made on nearly identical grounds as Cao’s timely motion for summary judgment. Under the circumstances, the Supreme Court should have determined that good cause existed to review the untimely motion for summary judgment on the merits.

(Internal quotations and citations omitted) (emphasis added).

This decision shows that, at least occasionally, the 120-day deadline for making a dispostive motion is not enforced as strictly as the rules for filing a Notice of Appeal. Still, better not to count on a sympathetic court in this regard.

Posted: June 27, 2014

Foreign Statute of Limitations Does Not Apply in Actions Brought Under CPLR § 205(a)

On June 26, 2014, the Court of Appeals issued a decision in Norex Petroleum Ltd. v. Blavatnik, 2014 NY Slip Op. 04802, clarifying the interplay between CPLR § 202, the “borrowing statute,” and CPLR § 205(a), the “savings statute.”

CPLR § 202 provides that, when a cause of action accrues outside New York, the applicable statute of limitations is the shorter of the New York statute and the statute where the cause of action accrued. CPLR § 205(a) provides that if a timely-filed action is dismissed other than on the merits, the plaintiff has six months to file a new action “upon the same . . . transactions or occurrences.”

In Norex Petroleum, the parties were litigating over control of a Russian oil company and its oil reserves. The plaintiff, a resident of Alberta, Canada, began the action by bringing RICO claims and Russian law claims against the defendants in federal court in the Southern District of New York. The SDNY held that RICO was inapplicable to an extra-territorial dispute and declined to exercise pendant jurisdiction over the Russian law claims.

Within six months, the plaintiff brought a new action in New York Supreme Court, asserting Russian law claims and New York claims arising from the same transactions and occurrences as the SDNY action. The defendants moved to dismiss the action as time-barred. They argued that, because the claim was for economic damages only, it accrued where the plaintiff was located, in Alberta, Canada, and Alberta’s two-year statute of limitations does not have a savings statute. The second action would therefore be time-barred in Alberta, where the claim arose. And—so argued the defendants—because the second action would be time-barred in Alberta, under CPLR § 202 it must also be time-barred in New York.

The Supreme Court accepted this argument and dismissed the second action; the Appellate Division unanimously affirmed. The Court of Appeals, however, unanimously reversed and reinstated the action.

Judge Read found that the precedents relied upon by the defendants were unpersuasive or inapplicable. Instead, he looked to the purpose of the two statutes. The purpose of CPLR § 202 is to prevent forum-shopping by plaintiffs whose statute of limitations has run elsewhere, whereas the purpose of CPLR 205 (a) is to protect the right of plaintiffs who filed timely to have their case decided on the merits.

Once [plaintiff] timely commenced its federal court action in New York, the borrowing statute’s purpose to prevent forum shopping was fulfilled, and CPLR 202 had no more role to play . . . . Stated another way, it is irrelevant that Alberta law does not have a savings statute similar to CPLR 205(a) because at the point in time when Norex filed its “new” action in Supreme Court, the borrowing statute’s requirements had already been met. In our view, this reading of the way in which CPLR 202 and CPLR 205(a) interrelate best comports with statutory language, and honors both the borrowing statute’s purpose to prevent forum shopping and the savings statute’s goal to implement the vitally important policy preference for the determination of actions on the merits.

Accordingly, as long as the original lawsuit is timely filed pursuant to CPLR § 202, plaintiffs get the CPLR § 205(a) safe harbor regardless of whether the other jurisdiction has a similar savings statute.

Posted: June 26, 2014

Opportunity to Comment on Proposed Change to Commercial Division Rules

The Office of Court Administration has asked for public comment on yet another proposed change to the rules of the Commercial Division.

The proposed new rule would add a preamble to the Commercial Division Rules

that (a) acknowledges the problems caused by dilatory tactics and counsel who fail to appear for conferences, (b) directs litigants and their counsel who use the Commercial Division to familiarize themselves with the numerous sanctions provisions in the Rules, and (c) advises that Commercial Division judges will impose sanctions as the circumstances warrant in order to enforce compliance with case management orders and discovery schedules.

E-mail comments to by August 26, 2014.

Posted: June 26, 2014

Breach of Contract Claim Dismissed as Duplicative of Malpractice Claim

On June 17, 2014, Justice Walker of the 8th Judicial District Commercial Division issued a decision in Rich Products Corp. v. Kenyon & Kenyon, LLP, 2014 NY Slip Op. 50937(U), dismissing asserted and prospective claims against a law firm as duplicative of the plaintiff’s breach of contract claims.

In Rich Products Corp., the plaintiff asserted a variety of claims against the defendant law firm in connection with its alleged role in the plaintiff’s failure to obtain two foreign patents. The decision in Rich Products Corp. addressed several issues; this post focuses only on one: the plaintiff’s breach of contract claim.

The court dismissed the breach of contract claim, explaining:

A cause of action for breach of contract relating to a claim of legal malpractice may only be maintained where there is an additional promise by the attorney extending beyond the duty of care an attorney owes his client.

[The plaintiff] alleges that [the defendant] specifically agreed and contracted to perform a specific task and/or obtain a specific result regarding the Invention.

However, [the plaintiff] has failed to sustain its burden of proof regarding these claims.

To the extent [the plaintiff] bases its breach of contract claims on implied promises, such claims are contrary to New York Law.

Finally, [the plaintiff’s] breach of contract claims are duplicative of its legal malpractice claims, containing the same allegations of fact, and seeking the same relief.

(Internal quotations and citations omitted).

This decision is yet another example of the courts’ disinclination to allow plaintiffs to assert multiple causes of action based on the same facts.

Posted: June 25, 2014

Available Damages Against Sponsor of Mortgage-Backed Securities Trust Limited By “Sole Remedies” Provision in Governing Documents

On May 29, 2014, Justice Bransten of the New York County Commercial Division issued a decision in Saco I Trust 2006-5 v. EMC Mortgage LLC, 2014 NY Slip Op. 31432(U), ruling that Plaintiffs’ claim for rescissory and consequential damages was precluded by a “sole remedies” provision in the governing documents for a mortgage-backed securities investment.

In Saco I Trust, the plaintiff investors in mortgage-backed securities brought an action against the sponsor, EMC, for breaches of representations and warranties concerning the mortgages underlying the investment. The governing documents for the securitization trusts contained a “sole remedies” clause, which provided:

It is understood and agreed that the obligation under this Agreement of EMC to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedies against EMC (in its capacity as Sponsor) respecting such breach available to the Certificateholders, the Depositor or the Trustee.

Justice Bransten found that this provision barred any recovery “beyond EMC’s contractual obligation to ‘cure, purchase or replace any Mortgage Loan.'” Thus, plaintiffs’ claims for consequential and rescissory damages were precluded.

Justice Bransten went on to hold that, even in the absence of a sole remedies clause, consequential and rescissory damages would be unavailable under the facts of the case:

Consequential damages are “rarely awarded” and are permitted only where the contract conveys that the parties intended consequential damages to be recoverable in the event of breach. Here, Plaintiff points to no language and makes no argument that such damages were within the contemplation of the parties as the probable result of a breach at the time of or prior to contracting. The Court likewise finds no such language. Thus, Plaintiff’s claim for consequential damages merits dismissal.

Plaintiffs’ claim for rescissory damages also fails. As the First Department noted in MBIA Insurance Corp. v. Countrywide Home Loans, Inc., 105 A.D.3d 412, 413 (1st Dep’t 2013), rescission is a “very rarely used equitable tool.” Indeed, the First Department explained that rescissory damages are only applicable where rescission is impracticable and no alternative legal remedies are availing. While Plaintiff maintains that rescission would be impracticable, Plaintiffs claim for rescissory damages lacks merit, since Plaintiff has an alternative remedy – repurchase. Notwithstanding Plaintiffs “pervasive breach” arguments, the sole remedy provision agreed to by the parties limits the Trust’s remedies to repurchase.

(Citations omitted).

This decision illustrates that courts will enforce contractual limitations on damages, and that consequential damages are generally unavailable unless the parties specifically contract for such damages.

Posted: June 24, 2014

Summary Judgment Granted Despite Request for More Discovery

On June 20, 2014, the Fourth Department issued a decision in Resetarits Construction Corp. v. Olmsted, 2014 NY Slip Op. 04633, granting a motion for summary judgment despite the plaintiff’s argument that the motion was premature because the plaintiff had not had an adequate opportunity to take discovery.

In Resetarits Construction Corp., the plaintiff sued the defendant “for, inter alia, breach of contract based on the alleged failure of defendant . . . to pay for work performed by plaintiff pursuant to a construction contract.” The trial court granted the plaintiff’s motion for summary judgment on its breach of contract claim, denying the defendant’s cross-motion compelling additional discovery. The Fourth Department affirmed, explaining that the plaintiff had established its entitlement to judgment and:

the [trial] court properly rejected defendants’ contention that plaintiff’s motion was premature because further discovery was necessary and thus properly denied the cross motion seeking that further discovery. In opposing a summary judgment motion as premature pursuant to CPLR 3212 (f), the opposing party must make an evidentiary showing supporting the conclusion that facts essential to justify opposition may exist but cannot then be stated, and mere speculation or conjecture is insufficient. The opposing party must show that the discovery sought would produce evidence sufficient to defeat the motion and that facts essential to oppose the motion were in the movant’s exclusive knowledge and possession and could be obtained by discovery. Defendants failed to make the requisite showing here.

(Internal quotations and citations omitted) (emphasis added).

Posted: June 23, 2014

Commercial Division Rules Amended to Add Rules Regarding Interrogatories

The Chief Administrative Judge has signed an order amending the rules of the Commercial Division by adding a new rule relating to interrogatories. The new rule, Rule 11-a, which took effect on June 2, 2014, provides:

Rule 11-a. Interrogatories.

(a) Interrogatories are limited to 25 in number, including subparts, unless another limit is specified in the preliminary conference order. This limit applies to consolidated actions as well.

(b) Unless otherwise ordered by the court, interrogatories are limited to the following topics: name of witnesses with knowledge of information material and necessary to the subject matter of the action, computation of each category of damage alleged, and the existence, custodian, location and general description of material and necessary documents, including pertinent insurance agreements, and other physical evidence.

(c) During discovery, interrogatories other than those seeking information described in paragraph (b) above may only be served (1) if the parties consent, or (2) if ordered by the court for good cause shown.

(d) At the conclusion of other discovery, and at least 30 days prior to the discovery cut-off date, interrogatories seeking the claims and contentions of the opposing party may be served unless the Court has ordered otherwise.

You can learn more about the background of the rule by reading the request for comment that the Office of Court Administration posted earlier this year on the proposed rule.

Posted: June 23, 2014

Theories of Damages in the Macy’s v. J.C. Penney Litigation

On June 16, 2014, Justice Oing of the New York County Commercial Division issued a decision in Macy’s, Inc. v. J.C. Penny Corporation Inc., Index No. 652861/2012, setting forth findings of law and fact after a non-jury trial.

The case’s history, and the contents of Justice Oing’s lengthy decision, have been widely reported elsewhere:  Macy’s sued J.C. Penney for inducing Martha Stewart Living Omnimedia, Inc., (MSLO) to breach its exclusive agreement with Macy’s; Justice Oing issued injunctions before trial, preventing J.C. Penney from selling Martha Stewart-branded products; Macy’s settled with MSLO; and, on the merits, the court ruled in favor of Macy’s against J.C. Penney.

Instead of re-hashing those well-examined issues, this blog post examines Justice Oing’s rulings on Macy’s possible remedies, which present some unique questions of fact and law.

Justice Oing first denied Macy’s claim for a permanent injunction on the grounds of mootness, because agreements between the parties have resolved any chance of future harm from infringement or unfair competition.

Because Justice Oing awarded Macy’s pre-trial injunctive relief prohibiting the sale of Martha Stewart-branded goods at J.C. Penney stores before any such goods were sold, Macy’s had no claim on its first lost profits theory.

Macy’s only viable claim for lost profits instead centers on 900 product designs that MSLO prepared for J.C. Penney, some of which J.C. Penney accepted and sold under its own brand names. To determine whether Macy’s lost any profits under this theory, Macy’s will have to prove that (a) a particular design or designs “rightfully belonged to Macy’s; (b) if that design were presented to Macy’s, Macy’s would have accepted it; (c) J.C. Penney manufactured and sold the design; and (d) J.C. Penney “realized a profit on such sales.” This question was referred to a Special Referee/JHO for determination, but given Justice Oing’s admonition that “speculative damages will not be considered,” Macy’s faces a high burden.

Macy’s also claimed attorneys’ fees—despite the absence of a contract provision or statute providing for that remedy—based upon a common-law rule that a party can recover attorneys’ fees if

through the wrongful act of his present adversary, a person is involved in earlier litigation with a third person . . . to protect his interests . . . he is entitled to recover the reasonable value of attorneys’ fees and other expenses thereby suffered or incurred. Such attorney fees should be reasonable and the natural and necessary consequences of the defendant’s tortious acts.

(Internal citations and quotation omitted.)

Here, Macy’s claimed that its action against MSLO was caused by J.C. Penney’s tortious actions, and that J.C. Penney should therefore be liable for Macy’s attorneys’ fees in that action. Justice Oing also referred this claim to a special referee to determine “whether JCP’s conduct was the proximate cause of the legal fees incurred by Macy’s in its action against MSLO.” However, Justice Oing warned that his finding that J.C. Penney tortuously interfered with the Macy’s/MSLO contract “may not amount to a finding of proximate cause” and that the Special Referee would have to make a deeper analysis of the parties’ actions and motivations. Any award of attorney’s fees would also have to be reduced if the Macy’s/MSLO settlement required MSLO to pay any of Macy’s attorneys’ fees.

Finally, Justice Oing addressed Macy’s claim for punitive damages. To decide whether to award punitive damages, the finder of fact was required to consider:

the nature and reprehensibility of what JCP did . . . the character of the wrongdoing, whether JCP’s conduct demonstrated an indifference to, or a reckless disregard of, the rights of others, whether the acts were done with an improper motive or vindictiveness, whether the acts constituted outrageous or oppressive intentional misconduct [etc.].

Justice Oing stated that this was a difficult decision, because an award of punitive damages against “a major domestic retailer . . . may have unintended and severe collateral economic consequences.” Then, despite an earlier finding that J.C. Penney had knowingly and intentionally interfered with Macy’s contract with MSLO, Justice Oing declined to award punitive damages. He pointed first to the fact that gaining a commercial advantage was the sole motivation for J.C. Penney’s actions, and to the severe consequences that J.C. Penney had already suffered:

If one were to say that a finding of no liability for punitive damages would be to condone such corporate behavior and let JCP get off easy, consider the following facts. [Macy’s], the loyal and unsuspecting partners, have been vindicated. JCP terminated [the executive responsible] on April 8, 2013, before this trial ended, a casualty of his own hubris. JCP, its board of directors, and its top executives were publically ridiculed and humiliated as a consequence of this trial. Their grand strategy was a colossal and abject retail failure . . . to the point where it placed JCP on the verge of financial collapse.

This ruling reminds us that the mere fact that an intentional tort has been committed does not automatically entitle a plaintiff to punitive damages. Here, punitive damages were refused because J.C. Penney acted to advance its own interests and not out of malice or vindictiveness towards Macy’s. It also highlights a seldom-used avenue to obtain common-law attorney fees. However, the most interesting thing about this ruling is that, despite J.C. Penney’s obvious wrongdoing, and its total defeat on the merits, Macy’s may be left with no remedy at all. Indeed, despite the trial and the lengthy decision on the merits, it appears as though this litigation was in effect decided at the preliminary injunction stage. Because Macy’s sought and received prompt injunctive relief, almost all of its potential damages were forestalled.

Posted: June 22, 2014

Class Counsel Awarded Reduced Fees

On June 13, 2014, Justice Ramos of the New York County Commercial Division issued a decision in Schumacher v. NeoStem, Inc., 2014 NY Slip Op. 50919(U), awarding fees to class counsel in an amount significantly lower than that requested.

In Schumacher, the court was asked to certify a class, approve a class settlement and award class counsel attorneys’ fees. Class counsel represented to the court “that the total number of hours spent on” the “litigation was 455.25 and [sought] a multiplier of 1.75, totaling $477,817.16.” The court awarded only $125,000. It explained the factors it considered as follows:

Under CPLR 909, attorneys for a class that has been successful (through judgment or settlement) may be awarded reasonable attorneys’ fees. When granting fees, a trial judge has broad discretion in deciding whether, and in what amount attorneys’ fees should be awarded. Generally, the Lodestar” method is employed to calculate reasonable attorney’s fees, which is calculated by multiplying the reasonable hours expended on the action by a reasonable hourly rate.

Class counsel must establish through competent evidence that its fees were consistent with customary fees charged for similar services by lawyers in the community with like experience and of comparable reputation, or were reasonable.

In the event that the court finds that an attorney spent excessive or unreasonable hours, it may exclude that amount from the calculation.
. . .

Counsel for a prevailing party must exercise billing judgment, that is, act as he would under the ethical and market restraints that constrain a private sector attorney’s behavior in billing his own clients. From reviewing the billing records, is evident that a great deal of the expenses could have been avoided. Moreover, plaintiff’s counsel has not established by clear and convincing evidence that the time expended was necessary to achieve the results obtained. While it is widely acknowledged that a securities class action is by its very nature a complex animal, the complexity of the underlying issues of executive compensation do not appear extraordinary.

. . . A court may apply a multiplier to the lodestar figure to account for factors such as the risk of litigation and the performance of the attorneys.

Ultimately, the degree of a plaintiff’s success is the most critical factor in determining the reasonableness of a fee award.

Considering all of these factors, the court found that class counsel’s work was duplicative–both within the matter and between related matters–and that its success did not justify a multiplier.

It is often hard to have one’s work scrutinized after-the-fact. Perhaps the best lesson here is no matter how reasonable counsel might view its work when it is doing it, counsel seeking fees from an opponent should nonetheless expect that it will not recover for all of its billings.