Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
On October 29, 2013, Justice Kornreich of the New York County Commercial Division issued a decision in Saska v. Metropolitan Museum of Art, 2013 NY Slip Op. 23366, addressing, among other things, the law of third-party beneficiaries as applied to the Metropolitan Museum of Art’s “pay what you wish” admissions policy.
In Saska, the plaintiffs alleged that they were third-party beneficiaries of the lease entered into by the City and the museum in 1878 that prohibited the museum from charging for admission. The museum, they argued, had violated the lease by charging admission under its “pay what you wish” admissions policy, because that policy required almost all visitors to pay something to enter the museum, even if only a penny. Justice Kornreich found that the plaintiffs were not third-party beneficiaries of the lease, even though they were members of the public that the museum was founded to serve, and even if they were, they were not entitled to the remedy they were seeking:
[A] third-party beneficiary has no greater rights or remedies than the direct parties to a contract. . . . Assuming, arguendo, that plaintiffs are intended beneficiaries of the Lease, they still cannot compel specific performance that differs from the remedy provided for in the Lease. Third-party beneficiaries do not have contractual rights that go beyond or contravene the explicit terms of the contract. To wit, if the City were before this court, it would not get the injunctive relief requested by plaintiffs. Rather, service of a proper Notice to Cure and, if no cure takes place, eviction, is the remedy under the lease. Plaintiffs’ rights as alleged third part beneficiaries are no greater than those of the City.
Further, on this record, there is little . . . doubt that the City has no desire to evict the Museum for the conduct alleged in this action. Plaintiffs should not be permitted to disregard the contracting party’s decision as to the benefits it seeks to gain from its contract and the enforcement benefits it negotiated to achieve those benefits. In other words, plaintiffs cannot force the Museum to abide by the terms of the Lease in a manner that contravenes the express wishes of its landlord.
(Citations and internal quotations omitted).
On October 21, 2013, Justice Bransten of the New York County Commercial Division issued a decision in Gama Aviation Inc. v. Sandton Capital Partners, LP, 2013 NY Slip Op. 32648(U), showing the importance of dilligently identifying and raising discovery disputes.
The Gama Aviation decision dealt with several issues, including two motions to compel the production of documents. Both were denied. Among the reasons for the denial was that the movants did not bring the motions until the close of discovery, as much as two years after document production began. As Justice Bransten held in connection with the motion to compel relating to a non-party:
Although CPLR 3122 does not impose a time limit upon a party seeking discovery to bring a motion to compel production, if a party fails to make a motion to compel within a reasonable time, she may forfeit the right to obtain the items sought. New York courts have consistently held that motions to compel that are filed late in a case, and long after the initial requests were made, are inappropriate and inexcusable, and should be denied without further consideration.
Here, having waited over two years from the issuance of their subpoenas to move to compel KEF to produce documents, and nearly a year after KEF provided documents seeking to cure the deficiencies alleged in plaintiffs’ January 2012 letter, plaintiffs cannot reasonably claim that their delay was excusable, particularly as KEF is not even a party to this litigation. Plaintiffs have had ample opportunity to take discovery from KEF, and as such, the motion to compel is denied.
(Citations and internal quotations omitted) (emphasis added).
The lesson here is plain. At the same time, the solution is not always simple. It can take time to identify the gaps in a document production and to make the record necessary to establish that the documents sought are relevant and that they exist but were not produced. And, of course, courts are justifiably impatient with litigants who do not try to resolve discovery disputes between themselves before raising them with the court. Still, as Gama Aviation illustrates, if you wait until the end of discovery to tee up your discovery disputes, you may have waited too long.
On October 23, 2013, Justice Ramos of the New York County Commercial Division issued a decision in Schoonover v. Massachusetts Mut. Life. Ins. Co., 2013 NY Slip Op. 32682(U), reminding insurance companies that they ignore the notice requirements of the Insurance Law at their peril.
In Schoonover, the plaintiffs, trustees of an insurance trust established by a now-deceased partner at Skadden Arps, purchased life insurance from defendant Mass Mutual through Skadden. From the date of issuance until the insured’s retirement, Skadden paid the monthly charges on the policy. Upon the insured’s retirement, Mass Mutual issued a letter of portability. When premiums had thereafter not been paid, Mass Mutual issued non-payment notices to Skadden and then ultimately notices of cancellation to Skadden as well. Justice Ramos granted summary judgment to the plaintiffs, ruling that the notices to Skadden were not sufficient and that the insurer was required to provide actual notice to the actual address of the insured:
[F]orfeiture of life insurance coverage for nonpayment of premiums is not favored in the law, and will not be enforced absent a clear intention to claim that right. . . . In the same vein, an insurer may not depend upon a default to which its own wrongful act or negligence contributed, and but for which a lapse might not have occurred.
Here, the Certificate and the Policy entitle the Insured to a billing notice after he retired from Skadden, and conditions cancellation of the Policy upon the giving of that notice to him, in addition to a pre-lapse or default notice to the owners of the Certificate, the plaintiffs.
(Internal quotations and citations omitted).
On October 30, 2013, the Second Department issued a decision in Varveris v. Zacharakos, 2013 N.Y. Slip Op. 07028, examining when a corporate officer/director owes a fiduciary duty to the corporation’s shareholders.
In Varveris, the defendant was “a director, officer, shareholder, and managing agent of” a close corporation of which plaintiff was a shareholder. Defendant purchased another shareholder’s shares in the corporation. Plaintiff sued defendant for breach of fiduciary duty in connection with the sale, claiming that defendant had a duty to allow plaintiff to participate in the purchase. The Second Department held that defendant had no fiduciary duty to plaintiff in this situation, writing:
Contrary to the plaintiff’s contention, [defendant]’s status as an officer, director, or shareholder of a close corporation does not, by itself, create a fiduciary relationship as to his individual purchase of another shareholder’s stock.
(Emphasis added) (citations and internal quotations omitted).
Varveris illustrates the importance of context in determining whether someone is a fiduciary.
On October 29, 2013, the First Department issued a decision in Jumax Assoc. v. 350 Cabrini Owners Corp., 2013 NY Slip Op. 06992, illustrating the scope of the doctrine of res judicata. Jumax had
previously commenced an action in 2002 seeking to recover fees that had been paid to defendant co-op pursuant to a license agreement defendant had entered into in or about 1995 with a third-party cellular telephone company, as well as fees that would be paid through the time of judgment. At the time the action was commenced, the license agreement had been amended and extended three times. During the pendency of the prior action, the license agreement was amended and extended two more times.
Jumax lost the 2002 action. Jumax then initiated a new lawsuit “to recover amounts paid pursuant to the amendments entered into during the pendency of the prior action.” The First Department held that such claims were “barred by the doctrine of res judicata.” As the First Department noted, res judicata “applies not only to claims actually litigated but also to claims that could have been raised in the prior litigation.” (Citations and internal quotations omitted) (emphasis added).
Jumax shows that if you have claims and do not bring them in a pending action, you risk losing them forever.
On October 16, 2013, the Second Department issued a decision in Kalmon Dolgin Affiliates, Inc. v. Tonacchio, 2013 NY Slip Op. 06660, illustrating the importance of the documentary evidence prong of a motion to dismiss and its usefulness in dismissing a claim at the beginning of an action. In Kalmon Dolgin, the Second Department partially reversed an opinion by Justice Schmidt of the Kings County Commercial Division, holding that he should have granted a motion to dismiss based on documentary evidence establishing that the signatory to the contract was not actually binding his corporate affiliates to the agreement upon which they were being sued. The Second Department wrote:
Where a party offers evidentiary proof on a motion pursuant to CPLR 3211(a)(7), the focus of the inquiry turns from whether the complaint states a cause of action to whether the plaintiff actually has one. Here, the Supreme Court should have granted that branch of the moving defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the first cause of action insofar as asserted against Katan and 267. The evidentiary material submitted by the moving defendants demonstrated that the plaintiff’s allegation that it had entered into the letter agreement with Katan was “not a fact at all.” Specifically, the moving defendants’ submissions conclusively demonstrated that Katan was not a signatory to the letter agreement, and that 267 was not referenced in that agreement. Since the moving defendants established that neither Katan nor 267 were signatories to the letter agreement, Katan and 267 cannot be bound by it. Although the plaintiff alleged in an affidavit submitted by its president in opposition to the moving defendants’ motion that it was led to believe that Tonacchio was a managing member of 267 and an officer, director, or shareholder of Noreast, and that Tonacchio was authorized to bind all parties to the letter agreement, there is nothing in the letter agreement to suggest that, in signing it, Tonacchio was also binding 267 or Katan to the terms of the letter agreement.
(Citations and internal quotations omitted).
On October 9, 2013, we noted that on October 15, 2013, the Court of Appeals would be hearing argument in Cruz v. TD Bank NA., Docket No. 191, an appeal addressing two questions certified from the US Court of Appeals for the Second Circuit relating to a private right of action for money damages and injunctive relief against banks that violate the Exempt Income Protection Act (EIPA)’s procedural requirements. Both the hearing transcript and a video of oral argument are now available on the court’s website.
On October 24, 2013, the First Department, in a 3-2 decision, issued a decision in BDC Finance L.L.C. v. Barclays Bank PLC, 2013 NY Slip Op. 06963, enforcing a contract in a way that created a significant burden on one party but not the other. This apparent unfair result was due to a “notwithstanding” clause similar to the clause examined in the First Department decision that was a subject of our October 24, 2013 post: “Notwithstanding” Clause Controls Contract Even When It Reads Other Term Out of the Contract.”
The BDC Finance majority (Saxe, DeGrasse, and Richter, JJ.) held that Barclays breached its contract with the plaintiff hedge fund by not immediately complying with the hedge fund’s demand that Barclays return certain collateral pledged to secure a derivative transaction, even though Barclays disputed the amount of collateral that had to be returned. The majority held:
The plain and unambiguous language of the Delivery of Collateral clause requires Barclays to transfer any Return Amount demanded by BDC no later than the business day following the demand. This obligation is unconditional and absolute and exists “[n]otwithstanding anything in the [CSA] to the contrary.” Thus, the Delivery of Collateral clause expressly supercedes the form language in the CSA which would have otherwise permitted Barclays to dispute before paying.
Because this provision was part of a group of agreements that were “negotiated by two sophisticated commercial entities,” the majority would “not, in the guise of contractual interpretation, alter the plain language of the clause.”
The dissenters (Andrias and Gische, JJ.), however, disagreed, and interpreted the contracts as permitting Barclays to refuse to honor the hedge fund’s capital call while the parties made use of the contractually agreed-upon dispute resolution procedures: “[t]he court will endeavor to give the [contract] [the] construction most equitable to both parties instead of the construction which will give one of them an unfair and unreasonable advantage over the other” because “[i]t is highly unlikely that two sophisticated business entities, each represented by counsel, would have agreed to such a harshly uneven allocation of economic power under the Agreement” (citations omitted).
In conclusion, the First Department, albeit by a bare majority, has held sophisticated parties to the plain language of the “notwithstanding clauses” in their contracts, no matter how onerous the result. Lawyers should keep this in mind in drafting and performing contracts. Those who expect a court to ignore contract provisions that are unfair to their clients may be disappointed.
On October 21, 2013, Justice Ramos of the New York County Commercial Division issued a decision in Wyle Inc. v. ITT Corp., 2013 NY Slip Op. 51707(U), addressing the availability of a fraudulent inducement claim based on a breach of warranty.
In Wyle, defendant ITT argued that a fraud claim based on a warranty in an agremeent “must be dismissed as duplicative of Plaintiffs’ breach of contract claim.” Justice Ramos disagreed, writing that:
generally “a cause of action for fraud does not arise when the only fraud charged relates to a breach of contract.” However, “if a plaintiff alleges that it was induced to enter into a transaction because a defendant misrepresented material facts, the plaintiff has stated a claim for fraud even though the “same circumstances give rise to the plaintiff’s breach of contract claim.” “Unlike a misrepresentation of future intent to perform, a misrepresentation of present facts is collateral to the contract . . . and therefore involves a separate breach of duty.”
A warranty in a contract, Justice Ramos explained, “is a misrepresentation of present fact and cannot be characterized merely as an insincere promise to perform.” As far as the reasonableness of plaintiff’s reliance on the warranty, Justice Ramos noted that
The Court of Appeals has held that in contract negotiations between sophisticated entities, the justifiable reliance prong of a fraud claim can be sufficiently alleged where the plaintiff has gone to the trouble to insist on a written representation that certain facts are true, it will often be justified in accepting that representation rather than making its own inquiry.
The lesson is clear for both litigators and transactional lawyers. Warranties in a contract provide strong protection against unpleasant surprises after a deal is consummated and can be relied upon in subsequent litigation.
On October 22, 2013, the First Department issued a decision in Warburg Opportunistic Trading Fund, L.P. v. GeoResources, Inc., 2013 N.Y. Slip Op. 06826, holding that a “notwithstanding” clause trumps all other clauses in a contract, even when that clause would effectively read another clause out of the agreement.
The appeal arose out of seemingly inconsistent anti-dilution provisions in warrants issued by the defendant that gave the holder the right to purchase certain number of shares of defendant’s common stock at an exercise price of $32.43 per share. The anti-dilution provisions of the warrants contained formulae for adjustments of the exercise price, but also stated: “Notwithstanding any other provisions of Section 8(f) to the contrary, no adjustment provided for in Section 8(f) shall result in a reduction of the Exercise Price to an amount less than $32.43 per Warrant Share (as appropriately adjusted for the occurrence of any events listed in [other anti-dilution clauses of Section 8]).” This in effect read Section 8(f) out of the agreement. As the First Department noted:
Here, the “notwithstanding” provision in Section 8(h) clearly overrides any conflicting provisions in Section 8(f). To the extent that Section 8(h) sets the floor price of purchasable warrant shares at $32.43 — the initial exercise price listed in the warrant — it renders the adjustment formula in Section 8(f) impotent. To be sure, one is compelled to wonder how Section 8(f)’s formula could have any effect whatsoever if 8(h)’s “notwithstanding” clause prevents the reduction of the initial exercise price of $32.43 to a lower amount. Nonetheless, the “notwithstanding” clause governs the contract, despite the presence of conflicting provisions. Plaintiffs are sophisticated institutional investors, and they could have appreciated the effect of Section 8(h)’s trumping language.
The bottom line is that, absent sufficiently pled allegations of fraudulent inducement or mistake, the Commercial Division and First Department will hold sophisticated parties to their contracts, even a “notwithstanding” clause that reads an entire provision out of a contract.