Blogs

Commercial Division Blog

Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: March 20, 2014

Failure to Provide Client With Engagement Letter or Notice of Right to Arbitrate Dooms Suit for Fees

On March 19, 2014, the Second Department issued a decision in Gary Friedman, P.C. v. O'Neill, 2014 NY Slip Op. 01711, affirming the dismissal of a law firm's action for its fees. Gary Friedman, P.C. was not an appeal from a commercial case. However, the issues it addresses--the failure to provide a client with an engagement letter or to provide notice of a client's right to arbitrate--affect commercial litigators as much as anyone else. The Second Department's decision says it all:

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Posted: March 19, 2014

Quantum Meruit Claim Survives Even When Contract Claim Dismissed on Statute of Frauds Grounds

On March 18, 2014, the First Department issued a decision in Chapman, Spira & Carson, LLC v. Helix BioPharma Corp., 2014 NY Slip Op. 01685, finding that a breach of contract claim should have been dismissed on statute of frauds grounds but that a related quantum meruit claim survived. In Chapman, there was no signed writing, but there where e-mails that "evidenced the fact of plaintiff's employment by defendant." As the First Department explained:

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Posted: March 18, 2014

Defaulting Defendant’s Insurer Has Standing To Intervene

On March 6, 2014, Justice Friedman of the New York County Commercial Division issued a decision in CMS Life Insurance Opportunity Fund, L.P. v. Progressive Capital Solutions, LLC, 2014 NY Slip Op. 30592(U), granting a defendant’s insurer’s motion to intervene. In CMS Life Insurance Opportunity Fund, the plaintiffs filed their second amended complaint against Progressive Capital Solutions, LLC ("Progressive") and

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Posted: March 17, 2014

Lost Rent Not Available Remedy for Tenant’s Failure to Repair

On March 11, 2014, a divided panel of the First Department issued a decision in Building Service Local 32B-J Pension Fund v. 101 Limited Partnership, 2014 NY Slip Op, 01544, addressing issues arising from a commercial tenant's breach of duty to repair its premises. Building Service Local 32B-J Pension Fund arose out of a commercial lease that required the tenant to keep the premises in repair and to surrender it to the landlord in good condition. The landlord sent the tenant a notice stating that the tenant had violated its duty to repair and that it intended to enter the premises and conduct the repairs itself. In response, the tenant commenced the action and obtained a Yellowstone-type preliminary injunction—supported by a bond in excess of $4m—prohibiting the landlord from entering the premises to make repairs. After the lease expired, the landlord counterclaimed for damages arising from tenant's failure to repair, seeking, inter alia, damages for lost rent because the tenant's actions had delayed the landlord in repairing and re-leasing the premises. The tenant moved to dismiss that claim and to dissolve the bond, both of which were granted by the motion court. The majority affirmed dismissal of the claim for delay damages, holding that:

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Posted: March 16, 2014

Recent Decision Illustrates Rules for Computation of Pre-Judgment Interest

On March 6, 2014, Justice Friedman of the New York County Commercial Division issued a decision in New York City Housing Authority v. Spectrum Contracting Group, Inc., 2014 NY Slip Op. 30568(U), illustrating the application of CPLR 5001 in computing pre-judgment interest. CPLR 5001(b) provides the rule for determining the date from which pre-judgment interrest is computed:

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Posted in Commercial, Damages
Posted: March 15, 2014

Lack of Sophistication No Excuse for Not Bringing Action Before Statute of Limitations Runs

On March 11, 2014, the First Department issued a decision in Apt v. Morgan Stanley DW, Inc., 2014 NY Slip Op. 01541, examining the application of the statute of limitations and discovery rules relating to fraud. In Apt, an employee of the defendants "allegedly churned trades on" a brokerage account. The First Department affirmed the trial court's decision dismissing the complaint on statute of limitations ground, explaining:

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Posted: March 14, 2014

For Insurance Purposes, Cash is “In Transit” Even While it is Being Held in the Carrier’s Vault

On March 11, 2014, the First Department issued a decision in CashZone Check Cashing Corp. v. Vigilant Insurance Co., 2014 NY Slip Op. 01565, finding that money embezzled from an armored car service's vault was nonetheless "in transit" for purposes of insurance coverage. CashZone Check Cashing arose out of the embezzlement of money being delivered to the plaintiff's ATMs. Mount Vernon Money Center ("MVMC")—a non-party—would collect cash from the Federal Reserve on plaintiff's behalf and then take the cash to MVMC's vault, where it would be loaded into ATM cassettes, which would then be placed into the plaintiff's ATMs. Over time, MVMC embezzled around $450,000 of the plaintiff's money by commingling it with other funds while it was in the vault. The defendant, which insured plaintiff's cash while it was "in transit," denied coverage, and the motion court agreed, awarding defendant summary judgment because "the money was not stolen while it was in an armored vehicle or while the vehicle was being loaded or unloaded, or during an incidental stop, but, rather, during a substantive interruption of the transit process, while the money was inside MVMC's premises for sorting and processing." The First Department reversed and awarded summary judgment to the plaintiff, holding that the money was "in transit" even while it was in MVMC's vault, explaining:

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Posted in Commercial, Insurance
Posted: March 13, 2014

No Separate Cause of Action For Insurance Carrier’s Bad Faith Claims Handling

On February 26, 2014, Justice Schweitzer of the New York County Commercial Division issued a decision in Orient Overseas Associates v. XL Insurance America, Inc., 2014 NY Slip Op. 30488(U), dismissing a claim against a property insurance carrier for "bad faith claims handling" on the ground that no such cause of action exists under New York law, explaining:

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Posted in Commercial, Insurance
Posted: March 12, 2014

Person Who Signs Contract on Behalf of Non-Existent Entity Personally Liable

On March 11, 2014, the First Department entered a decision in Sunquest Enterprises, Inc. v. Zar, 2014 NY Slip Op. 01551, addressing the issue of a contract entered into by an allegedly non-existent entity. In Sunquest Enterprises, the court examined the question of whether defendants who signed a contract on behalf of a non-existent entity were personally liable under the contract. While the

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Posted in Commercial, Contracts