Blogs

Commercial Division Blog

Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: October 26, 2013

Oral Argument Heard on Exempt Income Protection Act (EIPA)’s Procedural Requirements

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 ...

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Posted: October 25, 2013

Divided First Department Panel Enforces Burdensome “Notwithstanding” Clause

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: ...

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Posted in Commercial, Contracts
Posted: October 25, 2013

False Warranty in Commercial Contract Can be Basis of Fraud Claim

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: ...

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Posted in Commercial, Contracts
Posted: October 24, 2013

“Notwithstanding” Clause Controls Contract Even When It Reads Other Term Out of the Contract

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: ...

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Posted in Commercial, Contracts
Posted: October 21, 2013

Ten Questions for Justice Warshawsky

In an effort to foster communication between the Commercial Division bench and bar, from time to time we will be posting interviews with sitting or retired Commercial Division justices and court staff. Retired Nassau County Commercial Division Justice Ira B. Warshawsky has graciously agreed to serve as our inaugural interviewee from his new home at Meyer Suozzi English & Klein, P.C.'s Litigation and Alternative Dispute Resolution Practice.  Before retiring, Justice Warshawsky served as a Supreme Court Justice for fourteen years, the last ten of which were in the Commercial Division. In addition to his judicial duties, Justice Warshawsky has served as a director of the Nassau Bar, is the former Dean of the Nassau Academy of Law, is a frequent lecturer for the National Institute of Trial Advocacy, has served as a contributing editor of the Benchbook for New York Trial Judges, was the past-President and charter member of the American College of Business Court Judges, and is a member of the Advisory Board of the Sedona Conference. With deep appreciation to the Justice, here are ten questions for Justice Warshawsky: ...

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Posted in Commercial, Interviews
Posted: October 21, 2013

Second Circuit Declines to Follow Appellate Division Interpretation of New York Law

While we normally do not blog about Second Circuit decisions, that court's decision in Licci v. Lebanese Canadian Bank, SAL, No. 10-1306-cv (October 18, 2013), shows the difficulties that can arise when state and federal appellate courts interpret New York law differently. Licci involves claims by American, Canadian, and Israeli citizens who were killed in rocket attacks in Israel that were carried ...

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Posted in EDNY, Jurisdiction
Posted: October 20, 2013

Equitable Claims Defeat Jury Demand

On October 17, 2013, Justice Bucaria of the Nassau County Commercial Division issued a decision in National Grid Corporate Services, LLC v. LeSchack & Grodensky, P.C., 2013 N.Y. Slip Op. 23354, highlighting a significant procedural difference between litigating commercial cases in New York's state and federal courts: which claims can be tried by a judge versus a jury. Unlike federal ...

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Posted in Commercial, Jury Demand
Posted: October 20, 2013

Assignees of Purchaser of Residential Mortgage-Backed Securities Lack Standing to Sue and Assignor Failed to Adequately Plead Fraud Damages

On October 16, 2013, Justice Bransten of the New York County Commercial Division issued a decision in Dexia SA/NV v. Morgan Stanley, 2013 N.Y. Slip Op. 51696(U), dismissing on the pleadings causes of action sounding in common-law fraud brought against the underwriters and sponsors of residential mortgage-backed securities ("RMBS") by both the entity that purchased the RMBS for $626 million ...

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Posted: October 19, 2013

Third Party Not Bound by Arbitation Agreement of Which He Was Not a Direct Beneficiary

On October 17, 2013, the Court of Appeals issued a decision in Matter of Belzberg v. Verus Invs. Holdings Inc., 2013 NY Slip Op. 06729, addressing the extent to which a person who is not a party to an agreement to arbitrate can nonetheless be required to arbitrate. The Court of Appeals started with the general proposition that "nonsignatories are generally not subject ...

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Posted: October 17, 2013

Common Interest Privilege Limited to Litigation Context

On October 16, 2013, Justice Bransten of the New York County Commercial Division issued a decision in Ambac Assur. Corp. v. Countrywide Home Loans, Inc., 2013 NY Slip Op. 51673(U), addressing the scope of the common interest privilege in the context of a corporate merger. Justice Bransten held that, contrary to rule applied by some federal courts, "New York law ...

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