On February 28, 2019, the First Department issued a decision in Free People of PA LLC v. Delshah 60 Ninth, LLC, 2019 NY Slip Op. 01505, holding that a lease’s rent credit was an unenforceable penalty, explaining:

The trial court correctly determined, giving due consideration to the nature of the contract and the circumstances, that the rent credits provision in the parties’ lease constituted an unenforceable penalty. The rent credit sought by plaintiff as liquidated damages under the lease agreement was grossly disproportionate to its estimated and actual loss, creating a windfall for plaintiff, and the damages flowing from the breach were readily ascertainable at the time the parties entered into the lease.

(Internal citations omitted).

A key element in commercial litigation is proving damages. As this decision shows, agreeing beforehand on the damages that will result from a breach of contract does not always result in an enforceable agreement. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have questions regarding proving damages.

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On February 26, 2019, the First Department issued a decision in L.Y.E. Diamonds, Ltd. v. Gemological Inst. of Am., Inc., 2019 NY Slip Op. 01360, holding that a defamation claim was barred by qualified privilege, explaining:

The motion court correctly dismissed, pursuant to CPLR 3211(a)(1), the defamation and trade libel causes of action on the ground that the statements at issue were protected by a qualified privilege.

GIA and Moses produced client agreements that conclusively demonstrate that they made the challenged statements in the discharge of some public or private duty, legal or moral, or in the conduct of their own affairs, in a matter where their interest was concerned. In the agreements, plaintiffs acknowledged GIA’s stated duty to serve the public and to maintain its trust in the diamond trade, acknowledged that the duty could be executed by, among other things, public disclosure of information about the diamonds that GIA inspected, including GIA’s reasonable suspicions about the quality of the diamonds, and further acknowledged that GIA could make such public disclosures at its discretion and without their prior authorization.

. . .

Plaintiffs argue that, even where a qualified privilege has been conclusively established, a plaintiff should have an opportunity to show common-law or constitutional malice to defeat it. They raise the reasonable concern that holding the plaintiff to the allegations in the complaint, where the defendant has established the affirmative defense on a pre-answer motion to dismiss, deprives the plaintiff of an adequate opportunity to defeat the affirmative defense. However, holding these particular plaintiffs to the allegations in their amended complaint does not present the risk of unfair surprise. As a result of motion practice on the original complaint, plaintiffs were aware of defendants’ qualified privilege arguments. Yet, rather than amending the complaint to allege facts that would establish malice, they continued to assert only the most conclusory allegations of malice. Plaintiffs rely on Whelehan v Yazback (84 AD2d 673 [4th Dept 1981]). However, this Court has determined that conclusory allegations do not suffice.

Nor do the arbitration proceedings buttress the malice allegations, as those proceedings post-date the statements at issue and shed no light on whether defendants made the statements with the requisite disregard for the truth. In any event, plaintiffs acknowledge that the arbitration resulted in a monetary award against them.

Plaintiffs failed to show that the court applied an incorrect standard in determining the motion to dismiss the amended complaint. Their argument consists of conclusory statements without supporting facts, such as the assertion that it was “entirely possible” that defendants sought to defame them with malice. Nor do these conclusory statements suffice to justify further discovery.

(Internal quotations and citations omitted).

Civil litigation can involve claims that cause real reputational harm, but not every statement can be the subject of a defamation claim. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have questions about whether statements about you or your business can be the basis for a claim for defamation.

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On February 20, 2019, Justice Cohen of the New York County Commercial Division issued a decision in Julius Silvert, Inc. v. Open Kitchen 17, LLC, 2019 NY Slip Op. 30394(U), holding that an attorney fee provision entitling the plaintiff to one third of the award to it for attorneys’ fees was unenforceable, explaining:

By contrast, Plaintiffs demand for $14,119.42 in attorney’s fees, based solely on the provision in the Agreement quoted above, does not warrant summary judgment in its favor. Contrary to Plaintiffs claims, the fact that the Agreement provides for a 33 1/3% fee does not, in and of itself, settle the issue..

Fixing attorney’s fees at an arbitrary percentage of an unknown amount (i.e., “the balance due”) acts as a kind of liquidated damages provision, one which may constitute an unenforceable penalty.

In Equitable Lumber, the Court of Appeals held that this type of attorney’s fee provision may be unenforceable under the Uniform Commercial Code if it does not relate to the normal contingent fee charged by attorneys in the collection context, or is so unreasonably large that it serves as a penalty rather than a good faith attempt to pre-estimate damages. Although a number of cases have permitted the party seeking fees under such a fixed-percentage provision to obtain reasonable fees that are actually incurred, the Court in Equitable Lumber stated that in the proper case a provision that one party to a contract pay the other party’s attorney’s fees in the event of breach may be unconscionable.

Moreover, as is expressly provided in the Uniform Commercial Code: If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result. When it is claimed or appears to the court that the contract or any clause thereof may be unconscionable the parties shall be afforded a reasonable opportunity to present evidence as to its commercial setting, purpose and effect to aid the court in making the determination.

In this case, Plaintiff has submitted no evidence showing that the attorney’s fees it seeks relate in any way to the legal services actually rendered. Instead, Plaintiffs claim rests entirely on the face of the Agreement. And the Agreement seems particularly susceptible to abuse here. Not only does the fee provision exact a large and seemingly arbitrary percentage of any unpaid balance, it does so whether or not suit is instituted, ignoring the nature of the work done by counsel and thus the costs incurred by Plaintiff. Even if a suit is instituted, the nature of the work required by an attorney presumably will vary depending on the circumstances. For example, a sizeable unpaid balance may be recovered in a straightforward suit, while a smaller sum may well implicate thornier legal issues and prompt a more protracted, costlier action. The Agreement here makes no such distinctions. Without more, the arbitrary figure in the Agreement does not establish Plaintiffs right to a 33 1/3% fee as a matter of law.

(Internal quotations and citations omitted).

It is not uncommon for contracts to provide that the prevailing party in a suit arising out of the contract is entitled to an award of its attorneys’ fees. Litigating for fees can be hard–both because of the high burden you sometimes must meet to be entitled to fees and because it is important to avoid the pitfall of getting an award of fees that is less than what it cost to move for fees. But as this decision shows, deciding on the amount of fees beforehand might not be enforceable. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you are litigating an attorney fee award.

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On February 14, 2019, the First Department issued a decision in Cohen v. Saks Inc., 2019 NY Slip Op. 01162, holding that a stipulation to support a class action settlement was unenforceable, explaining:

While plaintiffs’ promise to support the stipulation and cooperate in seeking court approval is not an unenforceable statement of intention to do something in the future, it is nonetheless unenforceable. Plaintiffs and their counsel owe fiduciary duties to absent class members and thus cannot be required to support a settlement that is contrary to the best interests of those class members.

(Internal citations omitted).

Class actions are a way for one member of a large group of potential plaintiffs to vindicate the group’s rights. As this decision shows, while the class representatives and their lawyers litigate the class action, they owe a duty to all class members. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have questions regarding a class action.

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On February 15, 2019, Justice Friedman of the New York County Commercial Division issued a decision in HSBC Bank USA, N.A. v. Merrill Lynch Mtge. Lending, Inc., 2019 NY Slip Op. 30358(U), clarifying the rules for the accrual of RMBS failure-to-notify put-back claims, explaining:

The court adheres to its holding that accrual of a failure lo notify cause of action requires both the defendants discovery of breaches and its failure to give prompt written notice of the breaches to the trustee.

On the prior motion to dismiss, Countrywide argued that HSBC’s failure to notify cause of action accrued at the latest on October 1, 2007, prior to the limitations period, at the time it allegedly made its last sale of loans to the sponsor. In support of this contention, Countrywide cited the allegation of the complaint that Countrywide had knowledge by that date of the falsity of the representations and warranties it made to the sponsor about the loans, as a result of its origination of the loans. In opposition to the motion to dismiss, HSBC disputed not only that October 1, 2007 was the date of the last sale of the loans, but also that October 1, 2007 was the date as of which Countrywide made its representations knowledge that such representations and warranties had been breached. HSBC also argued that notice within two months of discovery of a breach is prompt as a matter of law and that, even assuming that Countrywide made representations and warranties and had knowledge of breaches by October 1, 2007 (i.e., more than six years before the assertion of the failure to notify claim), notice given two months later (i.e., within the six-year limitations period) would still have been prompt.

The prior decision held that Countrywide failed to submit evidence sufficient to show that Countrywide did not discover breaches of representations and warranties between October 1, 2007 and the closing date of the securitization on October 31, 2007, and therefore that there wen.: no discoveries after October 1 that may benefit from the Tolling Agreement in effect between October 16, 2013 and May 18, 2016. Further, the prior decision held that the complaint pleaded that Countrywide discovered breaches of representations and warranties through post-closing internal quality control and review processes, and that the trustee’s failure to notify cause of action against Countrywide was maintainable based on these allegations as to post-dosing discovery. It was in this context that the court found that the complaint pleaded a timely cause of action against Countrywide to the extent that it was based on Countrywide’s discovery of such breaches, and failure to provide prompt written notice thereof- within the six-year limitations period preceding the assertion of the failure to notify cause of action, accounting for the tolling period.

It was not the court’s intention to suggest that discovery and provision of notice of the breaches must both occur within the limitations period. Rather, having found that the complaint pleaded timely failure to notify claims based on discovery within the limitations period, the court did not reach HSBC’s argument that the complaint also pleaded timely failure to notify claims based on discovery prior to the limitations period and failure to give notice within the limitations period, provided that notice within the limitations period would still have been prompt In particular, the court did not reach HSBC’s argument that even if Countrywide discovered breaches on an October 1, 2007 loan sale date, prior to the closing and prior to the limitations period, the failure to notify claims were also timely to the extent that they were based on Countrywide’s failure to give notice up to two months later, within the limitations period.

Nor could the court have determined the timeliness of this claim on the record of the motion to dismiss. The record of the prior motion did not identify the specific dates of the loan sales, and there were factual and legal disputes as to the dates on which Countrywide made its representations and warranties and therefore as to when the breaches of the representations and warranties occurred and Countrywide could have known of such breaches. (See supra, at 3.) In addition, HSBC failed to offer any explanation as to how, if Countrywide made representations on or before October 1 and had know ledge of breaches as of October 1, notice up to two months later could have been considered prompt.

The authority on which HSBC relied on the prior motion, and on which it continues to rely, does not support its contention that notice is prompt as a matter of law if given within two months of the knowledge of the breach. The two cases cited by HSBC in its opposition to the motion addressed the promptness of notice given by a trustee as a condition precedent to suit against a defendant securitizer or loan seller for repurchase of loans, and not, as here, the notice to be provided by the defendant to the trustee. HSBC has not discussed the differing purposes for which trustees and the various other parties involved in a securitization are obligated to give notice. Nor has HSBC discussed, or submitted legal authority that addresses, the impact of these differing purposes on the time by which notice must be given in order to be considered prompt and, in the case of a securitizer’s or originator’s obligation, the time by which the trustee’s failure to notify cause of action will accrue if notice is not given.

In the interest of avoiding confusion, however, the court modifies the prior decision to state explicitly that the prior decision did not reach HSBC’s argument that the complaint pleaded timely failure to notify claims based on the defendant securitizer’s or originator’s discovery of breaches of representations and warranties prior to the limitations period and failure to give notice within the limitations period, provided that notice within the limitations period would still have been prompt. The prior decision therefore does not preclude such a claim in future on a fully developed supporting factual record and on supporting legal authority as to the promptness of such notice.

Also in the interest of avoiding confusion, the court notes that this claim was not at issue in its bellwether decision in the coordinated Part 60 RMBS litigation on the standard for accrual of a failure to notify cause of action. The prior decision in the instant action held that the accrual rule for a failure to notify claim set forth by this court in FHFA/Morgan Stanley applied to HSBC’s failure to notify claims in this action. The FHFA/Morgan Stanley decision held that, like other breach of contract claims, the failure to notify claim does not accrue until the time of the breach, and that a defendant does not breach its notification obligation until it discovers a breach of representations and warranties and fails to give prompt written notice to the Trustee.

The defendant-securitizer in each of the actions decided by FHFA/Morgan Stanley argued that failure to notify claims are subject to the same statute of limitations as claims for breaches of representations and warranties, and accrue on the date on which the underlying representations and warranties are made. The Trustee contended that the earliest the breach of a notification obligation could have occurred–and the earliest the statute of limitations could have begun to run–is after the defendant discovered the defective loans but failed to notify the Trustee. The Trustee further contended that under the continuing obligation doctrine, it may assert claims for persistent failures to notify, regardless of when the defendant initially discovered the breaches, because the defendant continued to breach its duty to notify by continuing to fail to provide notice.

In FHFA/Morgan Stanley, the parties did not address the meaning of prompt notice or its proper interpretation in the RMBS context The court thus did not consider whether, or to what extent, the time of discovery differed from the time by which prompt notice must be provided, In holding that the Trustee had misconstrued the continuing obligation doctrine, the court stated that the Trustee’s claim for a breach of the notification obligation will be timely only if the defendant’s discovery occurred within the six-year period before the assertion of the failure to notify causes of action and that claims based on defendants’ discovery of breaches prior to this six-year period will not be timely. Such statements were made in the context of rejecting the Trustee’s apparent contention that, under the continuing obligation doctrine, its failure to notify claims would be timely regardless of when discovery occurred, based on the defendant’s ongoing failure to give notice of the discovery. Although these statements appear to equate the time of discovery with accrual of the fail me to notify claim, they were not intended to alter the accrual rule articulated earlier in the opinion. Nor should they be read to imply that a claim for failure to notify can accrue before the obligation to provide prompt notice is breached.

(Internal quotations and citations omitted).

Schlam Stone & Dolan represents investors in RMBS actions against underwriters and trustees and in related proceedings, such as trust instruction proceedings where an RMBS trustee seeks court guidance regarding the management of an RMBS trust. If you or a client are RMBS investors and have questions regarding potential claims against a trustee or how to influence the trustee’s prosecution of a put back action like the one at issue here, contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com.

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On February 19, 2019, Justice Scarpulla of the New York County Commercial Division issued a decision in Magomedov v. Lebedev, 2019 NY Slip Op. 30378(U), holding that a defendant waived his defense of lack of personal jurisdiction by bringing an earlier, related action, explaining:

Lebedev first argues that this action should be dismissed against him because New York lacks jurisdiction over him. In opposition, plaintiffs do not dispute that Lebedev is not a domiciliary of New York and therefore, no general jurisdiction exists over him. Instead, plaintiffs argue that long arm jurisdiction exists over Lebedev, pursuant to CPLR 302(a)(l), vis-a-vis the 2014 Agreement. Plaintiffs further argue that Lebedev waived any objection to jurisdiction by selecting a New York state court to litigate the Lebedev Action.

Under CPLR 302(a)(l), jurisdiction may be exercised over an out-of-state defendant if that defendant transacted any business within the state or contracted anywhere to supply goods or services in the state. Although the 2014 Agreement does not support jurisdiction over Lebedev for all claims asserted against him, I find that it does support jurisdiction over him as to the fourth cause of action for breach and anticipatory breach of the 2014 Agreement.

Here, plaintiffs allege that they agreed to collaborate with Lebedev in litigating the Lebedev Action pursuant to the 2014 Agreement. To pursue that action, Lebedev transacted business here by hiring New York counsel, and allegedly contracted out-ofstate for plaintiffs’ assistance in the Lebedev Action in New York. Because plaintiffs allege that Lebedev breached the 2014 Agreement, a contract which is directly related to the business Lebedev transacted in New York, the fourth cause of action for breach and anticipatory breach of contract arises sufficiently from Lebedev’s activities in New York to confer jurisdiction.

Moreover, I find that Lebedev waived his jurisdictional defense as to claims predating the 2014 Agreement by selecting New York to litigate the Lebedev Action. The Appellate Division, First Department has recognized the inequity of a party objecting to jurisdiction when that same party seeks affirmative relief in a related action in the same forum. Although Lebedev is objecting to jurisdiction as to claims asserted by plaintiffs, who are not parties to the Lebedev Action, that distinction does not compel a contrary conclusion under the facts alleged here and the undisputed close relationship between the parties and the transactions at issue.

Plaintiffs’ claims against Lebedev in this action, other than claims involving the 2014 Agreement, depend on Lebedev proving, in the Lebedev Action, that Defendants’ Joint Venture exists. Absent such a determination in the Lebedev Action, plaintiffs’ claims in this action pre-dating the 2014 Agreement fail. Thus, many of plaintiffs’ claims in this action are entirely dependent on the claims asserted in the Lebedev Action.

Because of the exceptionally close interdependent relationship between the parties, transactions and causes of action alleged in this action and the Lebedev Action, I find that Lebedev has waived any jurisdictional defense to litigating both actions in New York. Accordingly, I deny Lebedev’s motion to dismiss this action against him based on lack of jurisdiction.

(Internal quotations and citation omitted).

This decision illustrates an issue that often arises in commercial litigation in New York. Whether the defendant is located on the other side of the world or across the Hudson in New Jersey, a New York court cannot assert jurisdiction over the defendant (that is, hear a case against it) unless there is a proper connection between the defendant and New York. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client face a situation where you are unsure whether there is jurisdiction over you, or over a party with which you are having a dispute, in New York.

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On February 8, 2019, Justice Masley of the New York County Commercial Division issued a decision in K’s Intl. Polybags Mfg. Ltd. v. M.T. Packaging Inc., 2019 NY Slip Op. 30333(U), granting a defendant default judgment on its counterclaims against a plaintiff, explaining:

When a defendant has failed to appear, plead or proceed to trial of an action reached and called for trial, or when the court orders a dismissal for any other neglect to proceed, the plaintiff may seek a default judgment against him. While CPLR 3215 does not specifically mention counterclaims, the statute’s legislative history reveals that it was intended to apply to claims asserted as counterclaims, cross claims, and third-party claims, in addition to those set forth in complaints.

On a motion for a default judgment, the movant must submit proof of service of the pleadings, proof of the facts constituting the claim, proof of the default, and amount due by affidavit made by the party. CPLR 3215(f) requires that an applicant for a default judgment file proof by affidavit made by the party of the facts constituting the claim. However, a verified pleading may be submitted instead of the affidavit when it has been properly served. Defendant has provided proof that plaintiff was not only served with a copy of defendant’s verified answer with counterclaims, but also, served with the September 12, 2018 order dismissing the complaint and a copy of this motion.

In its answer, defendant asserts counterclaims for (1) defective goods under UCC § 2-714; (2) failure to remove defective goods under UCC § 2-715; (3) breach of contract; (4) negligent misrepresentation; (5) damage to business reputation; (6) breach of express warranty; (7) breach of implied warranty of fitness for a particular purpose; (8) breach of implied warranty of merchantability under UCC § 2-314; (9) breach of warranty of good faith; and (10) a declaratory judgment declaring that defendant does owe anything to plaintiff.

Defendant provides adequate proof of its claims arising out the defective goods that plaintiff delivered. In addition to its answer with counterclaims, verified by Jack Elefant, an employee of defendant, defendant attaches exhibits to its answer, showing that the goods, which were plastic bags, tested for high levels of lead, cadmium, chromium, and mercury despite plaintiffs certification that the bags contained levels of those toxins not exceeding a certain amount. Defendant also submits evidence that it informed plaintiff of the issue and demanded to stop production. Further, defendant’s verified answer adequately states counterclaims for defective goods under UCC § 2-714; failure to remove defective goods under UCC § 2-715; breach of contract; negligent misrepresentation; damage to business reputation; breach of express warranty; breach of implied warranty of fitness for a particular purpose; breach of implied warranty of merchantability under UCC § 2-314; and breach of warranty of good faith. Finally, defendant provides its attorney’s affirmation, affirming that plaintiff has not appeared in this action since its counsel withdrew and plaintiff has not responded to defense counsel’s communications. Thus, the motion for a default judgment on defendant’s counterclaims seeking monetary damages is granted, and the court will hold a hearing on the issue of damages as to these claims.

In addition to its claims seeking monetary relief, defendant also seeks a declaratory judgment. However, New York courts rarely grant declaratory judgments on default with no inquiry as to the merits. Declaratory judgments require that a party establish a right to a declaration against its adversary and will not be granted on the default and pleadings alone. Therefore, a hearing is necessary on this claim.

(Internal quotations and citations omitted).

If you are served with a complaint (or counterclaims, as happened in this case) and fail timely to answer, the court can enter judgment against you: a default judgment. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have questions regarding whether you have been properly served or if a default judgment has been entered against you.

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On February 13, 2019, Justice Cohen of the New York County Commercial Division issued a decision in Triantafillakis v. Madden, 2019 NY Slip Op. 30355(U), holding that the plaintiff’s claims were not barred by collateral estoppel or res judicata because the claims had not accrued when the first action was brought, explaining:

Plaintiffs’ claims are not barred by res judicata. In Matter of Hunter, 4 N.Y.3d 260 (2005), the Court of Appeals explained that under the doctrine of res judicata, a party may not litigate a claim where a judgment on the merits exists from a prior action between the same parties involving the same subject matter. The rule applies not only to claims actually litigated but also to claims that could have been raised in the prior litigation. However, where a claim could not have been raised in the prior litigation because it had not yet matured, res judicata does not apply.

In the First Action, Plaintiffs sought to enjoin Defendants from selling the Diner, and to enforce the Option Agreement giving Plaintiffs their share in Trian West. Since the termination of that action, Defendants have sold the Diner, and have failed to distribute the proceeds to Plaintiffs. This suit was brought to enforce an Operating Agreement mandating that Plaintiffs share in the proceeds from any sale of the Diner. Plaintiffs’ claims in the instant action, therefore, are based upon new conduct which could not have been raised in the original litigation (i.e., failure to distribute proceeds from the sale) and a separate agreement that was not at issue in the First Action (the Operating Agreement).

In the First Action, Defendant Jennifer Madden submitted an affidavit which included a section titled “Trian West’s Intention to disburse the Sale Proceeds.” In this section of the affidavit Madden represented to the court, under oath, that in the event Trian West is permitted to close the Purchase Agreement and thereby sell all of its assets to HR Porn Porn, Trian West will disburse the sale proceeds in accordance with the terms of the Operating Agreement. The affidavit further represented that after all payments of debts are made the funds will be placed in escrow pending equal distribution to the three optionees under the Option Agreement, Plaintiff John Triantifillakis, Anthanasios Triantifillakis, and Lako Kokotas. As it turned out, Defendant Madden failed to proceed as she represented she would. It was only when she allegedly reneged on her representation and refused to share the proceeds with the Plaintiffs that Plaintiffs’ claims in this suit arose. As such, Plaintiffs claims in the instant action are not barred by res judicata.

Plaintiffs’ claims also are not barred by collateral estoppel. Plaintiffs raise a breach of contract claim that was not litigated in the previous action. In Beuchel v. Bain, 97 N.Y.2d 295 (2001), the Court of Appeals explained that collateral estoppel precludes a party from relitigating in a subsequent action or proceeding an issue raised in a prior action or proceeding and decided against that party or those in privity. Here, Plaintiffs’ breach of contract claim is based upon a different contract, one that was not raised or litigated in the previous action. As such, Plaintiffs’ claims are not barred by collateral estoppel.

(Internal quotations and citations omitted).

Doctrines such as collateral estoppel and res judicata limit a plaintiff’s ability to litigate a dispute more than once. 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 an earlier action.

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On February 7, 2019, Justice Platkin of the Albany County Commercial Division issued a decision in Plank, LLC v. Dutch Vil., LLC, 2019 NY Slip Op. 50188(U), dismissing an action for failure timely to serve the summons and complaint, explaining:

CPLR 306-b requires service of process to be made within 120 days of the filing of the summons and complaint. However, a court may, in the exercise of discretion, grant a motion for an extension of time within which to effect service for good cause shown or in the interest of justice.

Good cause and interest of justice are two separate and independent statutory standards. To establish good cause, a plaintiff must demonstrate reasonable diligence in attempting service. 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. Inasmuch as Plank did not make any effort to serve defendants within the 120-day period following the filing of the summons and complaint.

Plank’s lack of reasonable diligence is not, however, an absolute bar to relief under the more flexible interest-of-justice standard:

The interest of justice standard requires a careful judicial analysis of the factual setting of the case and a balancing of the competing interests presented by the parties. Unlike an extension request premised on good cause, a plaintiff need not establish reasonably diligent efforts at service as a threshold matter. However, the court may consider diligence, or lack thereof, along with any other relevant factor in making its determination, including expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff’s request for the extension of time, and prejudice to defendant.

In determining whether to grant an extension of time in the interest of justice, no single factor is determinative.

For the reasons that follow, the Court finds, in the exercise of discretion, that Plank has failed to establish that an extension of the 120-day period in which to complete service of process is warranted in the interest of justice.

It is undisputed that Plank did not exercise any diligence in effecting service of process within the 120-day period following the filing of the summons and complaint. Further, Plank did not complete service of process until November 6, 2018, more than six months after the statutory deadline. Thus, there was both a lack of diligence and a protracted delay.

Plank blames its failure to properly and timely serve defendants on its status as a pro se plaintiff and its lack of awareness of the 120-day requirement of CPLR 306-b. However, as defendants observe, Plank is a limited liability company (“LLC”) and, as such, must prosecute a civil action through an admitted attorney. Thus, the law does not permit Plank to represent itself in this Court, whether through its sole member or otherwise. Accordingly, Plank’s excuse for its noncompliance with CPLR 306-b flows directly from its decision to attempt to commence this commercial action in Supreme Court without the benefit of counsel, in contravention of CPLR 321(a).

Moreover, defendants assert, without contradiction, that the law firm now representing Plank in this action has represented Plank for more than two years in connection with various aspects of the underlying contract dispute. The Court also is mindful that Plank is a commercial contractor that has been involved in a number of other lawsuits in this Court, including at least one action that was assigned to the undersigned for trial. Thus, Plank is a reasonably sophisticated commercial entity with the resources and experience to conduct its litigation matters properly and in compliance with the CPLR.

The Court also has considered the issue of prejudice, and it finds that neither side has demonstrated substantial prejudice. Defendants claim that they will sustain prejudice by reason of making payments on a bond that was substituted for an invalid lien, but the proof they adduce fails to conclusively establish the claimed invalidity. And Plank itself concedes that it will continue to retain all of its contractual rights and remedies as against Dutch Village and can press claims on the same exact salient facts even if this action is dismissed.

Upon a balancing of all relevant factors, the Court finds that the interests of justice do not favor relieving Plank of its highly improvident decision to proceed with the commencement of complex commercial litigation on an unauthorized pro se basis on the eve of the expiration of its statute of limitations, despite having previously retained counsel in connection with the underlying contractual disputes and having been involved in other lawsuits in Supreme Court. And having rejected Plank’s excuse for its protracted delay and lack of diligence in effecting service of process, the Court finds that the interests of justice do not otherwise favor the relief sought by Plank.

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

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 8, 2018, Justice Garguilo of the Suffolk County Commercial Division issued a decision in Overbay, LLC v. Berkman, Henoch, Peterson, Peddy & Fenchel, P.C., 2018 NY Slip Op. 51975(U), holding that a claim was barred by the voluntary payment doctrine, explaining:

Not just any form of protest is sufficient to overcome the voluntary payment doctrine. Rather, in order for a protest to be characterized as appropriate, it must be in writing and must have been made at the time of payment. Additionally, this written protest must indicate that plaintiff was reserving his rights when it made payment and must be communicated to the party receiving the payment. Here, the court notes that none of the correspondence submitted by the parties, including letters and emails, do not state that plaintiffs paid the settlement amount under protest at the time of payment, or state that they reserved their rights to later sue to recover it. The court also finds that plaintiffs offer no explanation as to the manner in which they purportedly communicated such protest, let alone how they satisfied the above requirements.

Nor have plaintiffs met their burden of demonstrating that an issue of fact exists with regard to whether they were under economic duress at the time of payment. The existence of economic duress is demonstrated by proof that one party to a contract has threatened to breach the agreement by withholding performance unless the other party agrees to some further demand. Conversely, a party cannot be guilty of economic duress for refusing to do that which he or she is not legally required to do. Here, there is no dispute that Harbour obtained a judgment of foreclosure. Although the parties discussed the amount of attorney fees attached to the judgment amount, defendants were not required to reduce the fees. Plaintiffs could have argued their objections to the legal fees at the hearing scheduled by the court, and chose to forego the hearing by paying the attorney fees with the settlement amount on April 20, 2018. In his affidavit, Tsunis concedes that he decided to pay the full settlement amount which included attorney fees in order to obtain his construction loan.

(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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