Commercial Division Blog

Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: February 15, 2014

Alleged Breach of Disciplinary Rule Alone Does Not Create a Cause of Action for Legal Malpractice

On February 4, 2014, Justice Oing of the New York County Commercial Division issued a decision in Pope Investments II LLC v. Belmont Partners, LLC, 2014 NY Slip Op. 30349(U), dismissing a legal malpractice claim that was based on an alleged breach of a disciplinary rule.

In Pope Investments, two groups of plaintiffs sued a handful of defendants, including a law firm and one of its partners, in connection with a failed investment. The court addressed many issues in deciding the motions to dismiss. Here we focus on its dismissal of a malpractice claim based on an alleged breach of a disciplinary rule. The court explained that simply alleging a violation of a disciplinary rule was insufficient to state a claim for legal malpractice:

The Group plaintiffs allege that Guzov and Ofsink committed legal malpractice by violating New York Rules of Professional Conduct Rule 1. 7(b)(4). That Rule requires a lawyer who has decided to represent two clients, regardless of an apparent conflict of interest, obtain written consent from each affected client. The Group plaintiffs claim that defendants Guzov and Ofsink represented AAXT and Kamick for the SMT Transactions without their written consent.

In support of dismissal of this claim, defendants Guzov and Ofsink rely on William Kaufman Org., Ltd. v Graham & James LLP, 269 AD2d 171, 173 (1st Dept 2000) to argue that a violation of a disciplinary rule does not generate a cause of action. That reliance is misplaced. That case also stands for the proposition that some of the conduct constituting a violation of a disciplinary rule may also constitute evidence of malpractice. Nonetheless, a violation of a disciplinary rule, standing alone and without more, does not generate a cause of action. The issue, thus, is whether there is more than just a violation of the Rule.

(Internal quotations and citations omitted) (emphasis added). The court went on to hold that the complaint failed “sufficiently [to] plead what negligent conduct defendants Guzov and Ofsink allegedly perpetrated to support the legal malpractice claim.”

There is a certain appeal to a rule that, as the plaintiffs alleged here, violating a disciplinary rule gives rise to liability to the wronged client (assuming damages result). However, as this decision shows, that is not the law.

Posted: February 13, 2014

Court of Appeals Rules That Two-Year Statute of Limitations In Insurance Policy Is Unenforceable Where Contractual Condition Precedent To Suit Could Not Be Accomplished Within Two Years

The Court of Appeals issued a decision today in Executive Plaza, LLC v. Peerless Insurance Company, Docket No. 2, addressing, on a certified question from the Second Circuit, the interplay of two provisions of a fire insurance policy–one requiring the insured to bring claims under the policy within two years of the fire, and a second providing that the insured could not recover the cost of replacing damaged property until the repairs are complete. Since the repairs the Plaintiff needed to perform took more than two years to complete, a strict application of both provisions placed the insured in a paradoxical situation where its claim for replacement costs was “time-barred before it [came] into existence.”

The Court of Appeals noted that, in general, agreements providing “a shorter, but reasonable” limitations period are enforceable, and the Court has upheld limitations periods as short as one year. As applied in this case, however, the Court found that the two-year limitations period was “unreasonable and unenforceable”:

The problem with the limitation period in this case is not its duration, but its accrual date. It is neither fair nor reasonable to require a suit within two years from the date of the loss, while imposing a condition precedent to the suit — in this case, completion of replacement of the property — that cannot be met within that two-year period. A “limitation period” that expires before suit can be brought is not really a limitation period at all, but simply a nullification of the claim. It is true that nothing required defendant to insure plaintiff for replacement cost in excess of actual cash value, but having chosen to do so defendant may not insist on a “limitation period” that renders the coverage valueless when the repairs are time-consuming.

This decision demonstrates that although contractual limitations periods are generally enforced as written, such provisions must be reasonable, and courts will not enforce a limitations period that effectively nullifies the contract.

Posted: February 13, 2014

Agreement Not Unconscionable Because it Was Not One Only a Delusional Party Would Make

On February 11, 2014, the First Department issued a decision in B.D. Estate Planning Corp. v. Trachtenberg, 2014 NY Slip Op. 00889, granting the plaintiff summary judgment on the defendant’s defense that an agreement was unconscionable.

In B.D. Estate Planning Corp., the First Department affirmed the trial court’s dismissal of the defendant’s unconscionability defense, explaining:

At common law an unconscionable agreement was one that no promisor (absent delusion) would make on the one hand and no honest and fair promisee would accept on the other. If the Ellis Limquee Family Insurance Trust (by its trustee, defendant Marcy Trachtenberg) had not signed the promissory note on which plaintiff sues, the policy on Ellis’s life would have lapsed for nonpayment of premiums, and Carolyn (the trust’s beneficiary) would ultimately have received nothing. Since the trust executed the note, it received $4 million after Ellis died, but it will have to give plaintiff approximately half of that amount if the note is enforced. A decision to get $2 million, as opposed to nothing, is not a bargain that only a delusional trustee would make.

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

This decision illustrates the high standard a defendant must meet in order to assert an unconscionability defense.

Posted: February 12, 2014

Fourth Department Declares Florida Law Regarding the Enforcement of Non-Compete Agreements Unenforceable on Public Policy Grounds

On February 7, 2014, the Fourth Department issued a decision in Brown & Brown, Inc. v. Johnson, 2014 NY Slip Op. 00822, declaring unenforceable on public policy grounds a Florida statute providing that in determining the enforceability of a non-compete agreement, a court “shall not consider any individualized economic or other hardship that might be caused to the person against whom enforcement is sought.”

In Brown & Brown, the plaintiff sued a former employee for breach of restrictive covenants in an employment agreement that prohibited her from soliciting customers or employees for a two-year period following the termination of her employment.  As the Fourth Department noted, under New York law, non-compete agreements are “almost uniformly disfavored and are sustained only to the extent that they are reasonably necessary to protect the legitimate interests of the employer and not unduly harsh or burdensome to the one restrained.”  The courts apply a three-part test to assess the reasonableness of a restrictive covenant under which the party moving to enforce the agreement must show that the restraint “(1) is no greater than is required for the protection of the legitimate interest of the employer, (2) does not impose undue hardship on the employee, and (3) is not injurious to the public.”  The employment agreement at issue, however, was governed by Florida law, which “expressly forbids courts from considering the hardship imposed upon an employee in evaluating the reasonableness of a restrictive covenant.”  The Fourth Department found that Florida law conflicts with New York public policy and is therefore unenforceable:

[W]e conclude that Florida law prohibiting courts from considering the hardship imposed on the person against whom enforcement is sought is “truly obnoxious” to New York Public Policy, inasmuch as under New York law, a restrictive covenant that imposes an undue hardship on the employee is invalid and unenforceable for that reason. Furthermore, while New York judicially disfavors such restrictive covenants, and New York courts will carefully scrutinize such agreements and enforce them only to the extent that they are reasonably necessary to protect the legitimate interest of the employer and not unduly harsh or burdensome to the one restrained, Florida law requires courts to construe such restrictive covenants in favor of the party seeking to protect its legitimate business interests.

This decision demonstrates the strong New York public policy disfavoring non-compete agreements and the unwillingness of the New York courts to enforce foreign laws that contravene that policy.

Posted: February 11, 2014

Breach of Contract With Which Promissory Note Was Inextricably Intertwined Creates Defense to Payment of the Note

On January 21, 2014, Justice Demarest of the Kings County Commercial Division issued a decision in Zamore, Zamore & Zamore v. Aloyts, 2014 NY Slip Op. 50139(U), denying a motion for summary judgment in lieu of complaint for payment of a promissory note.

Zamore was “an action to recover monies owed on a promissory note” related to an earlier dispute over the failed sale of co-op shares. The court denied the plaintiff’s motion for summary judgment in lieu of a complaint. While the case had several complicating factors, here we focus on the narrow question of the plaintiff’s entitlement to summary judgment on their promissory note.  The court explained:

Since the note was obtained as a purchase money note in connection with the Contract of Sale and the entry into the leases for the intended purpose of building and operating a medical office, which was interfered with and frustrated and never occurred, the breach of the lease is inextricably intertwined with the amounts owed under the note. Therefore, with respect to plaintiff’s action to enforce the note, the court must make reference to the Contract of Sale, the lease for the basement space, and the actions taken by plaintiff’s general partner, Zamore, which, defendants assert, constituted bad faith.

It is true that a breach of a related contract is generally not a defense to nonpayment of an instrument for money only. However, where the note and the contract are inextricably intertwined as part of the same transaction, a breach of the related contract may create a defense to payment on the note. Thus, while generally the breach of a related contract cannot defeat a motion for summary judgment on an instrument for money only, that rule does not apply where the contract and instrument are intertwined.

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

This decision shows an important exception to the rules regarding the enforceability of promissory notes.

Posted: February 10, 2014

Court of Appeals Arguments of Interest for the Weeks of February 10 and 17, 2014

Arguments this month in the Court of Appeals that may be of interest to Commercial Division practitioners include:

  • Docket No. 24: Melcher v. Greenberg Traurig, LLP (To be argued February 14, 2014) (addressing when plaintiff’s claim for “attorney deceit” under Judiciary Law § 487 accrued and therefore whether the claim was timely under the applicable 3-year statute of limitations). See First Department decision here.
  • Docket No. 63: Matter of Kapon v. Koch (To be argued February 19, 2014) (considering whether a court ruling on a motion, under CPLR 3119(e), to quash an out-of-state subpoena to a non-party witness should apply the generally applicable standards under CPLR Article 31, or should instead review the subpoena with “solicitude” to ensure that a New York resident with no stake in the litigation is not unduly burdened). See First Department decision here.
  • Docket No. 54: Mashreqbank PSC v. Ahmed Hamad Al Gosaibi & Brothers Company (To be argued February 19, 2014) (considering whether a motion to dismiss a third-party action on forum non conveniens grounds, under CPLR 327(a), empowers the court to dismiss the main action on the same ground, even though no party to that action moved for that relief). See First Department decision here.
Posted: February 9, 2014

Party Waives Right to Arbitrate by Litigating Same Issues

On February 5, 2014, Justice Kornreich of the New York County Commercial Division issued a decision in Matter of Guttman v. Diamond, 2014 NY Slip Op. 50138(U), denying a motion to compel arbitration.

In Guttman, one of the respondents, Brown, moved to compel arbitration challenging a settlement agreement. The court denied the motion because, among other reasons, Brown had waived the right to demand arbitration, explaining

The Federal Arbitration Act (the FAA) governs the determination of whether the instant dispute is subject to arbitration because the Settlement affects multi-state litigation concerning storage faculties located in multiple states. Though federal policy strongly favors arbitration, and waiver is not to be lightly inferred, a party may waive its right to compel arbitration where prejudice to the other party is demonstrated. While courts consider certain factors in determining whether the right to arbitration has been waived, there is no bright-line rule as the determination of waiver depends on the particular facts of each case. That being said, it is well settled that the key to a waiver analysis is prejudice. Waiver of the right to compel arbitration due to participation in litigation may be found only when prejudice to the other party is demonstrated.

It is well established that prior litigation of the same legal and factual issues as those the party now wants to arbitrate results in the waiver of the right to arbitrate. Though there is no wavier where a party has previously litigated an unrelated yet arbitrable dispute, wavier occurs when a party has previously litigated the same claims it now seeks to arbitrate.

(Internal quotations and citations omitted) (emphasis added). The court, in a strongly worded opinion, went on to find both waiver and prejudice, as well as laches.

This decision shows the unwillingness of courts to let parties to arbitration agreements use them to try to get a second bite at the apple.

Posted: February 8, 2014

Justice Kapnick Gives Qualified Approval to $8.5 billion Settlement of Mortgage-Backed Securities Claims

On January 31, 2014, former New York County Commercial Division Justice Barbara Kapnick (now sitting on the First Department) issued a long-awaited decision in Matter of Bank of New York Mellon, 2014 NY Slip Op. 30309(U), approving in most respects an $8.5 billion settlement between Bank of New York Mellon, as trustee of trusts holding mortgage-backed securities issued by Countrywide Financial Corp., and Bank of America, which acquired Countrywide in 2008.

Upon reaching the settlement, which resolved claims for breaches of representations and warranties concerning the underlying mortgages and violations of prudent loan servicing obligations, Bank of New York sought judicial approval of the settlement under Article 77 of the CPLR, which authorizes a special proceeding “to determine a matter relating to any express trust.” A group of institutional investors intervened to support the settlement, and various other investors intervened in opposition and/or to obtain more information about the settlement. (Our firm represented a group of investors who intervened in the proceeding and participated in discovery.) Following extensive discovery and motion practice, Justice Kapnick, on her final day in the Commercial Division, largely approved the settlement as within the bounds of the trustee’s “reasonable judgment.” She did, however, find that the trustee abused its discretion on one point—settling without adequate investigation of potential repurchase claims for modified mortgage loans. This caveat has created significant uncertainty, since the original settlement was contingent on Bank of New York obtaining judicial approval of its actions. The proceeding is now assigned to Justice Scarpulla, who, Reuters reports, has stayed Justice Kapnick’s decision from taking effect until February 19. Given the amounts at stake, further litigation in the trial court and on appeal can be expected.