- Posted: April 19, 2024 / Commercial Division Blog
Court Finds Action For Indemnification Premature Where Agreement Lacked An Advancement Clause And No Covered Payment Had Yet Been Made
On March 11, 2024, Justice Joel M. Cohen granted a motion to dismiss Plaintiff’s claim for breach of a contractual duty to indemnify litigation expenses the Plaintiff had paid in connection with ongoing litigation in Oklahoma and the bankruptcy of its subsidiary. In SBN FCCG, LLC v. Fog Cutter Capital Group, Inc., Index No. 650197/2023, Plaintiff contended the Defendant was obligated to pay Plaintiff’s litigation expenses based on a contractual indemnification clause. The Court rejected the claim as premature, however, finding that the contract contained no advancement clause that might mandate coverage of ongoing litigation expenses before the ultimate resolution of the case. The Court also concluded that a settlement in the subsidiary’s bankruptcy had explicitly disclaimed existence of the criteria needed to trigger indemnification of litigation expenses. As to the ongoing Oklahoma litigation expenses, the Court explained: Read More
- Posted: April 17, 2024 / Commercial Division Blog
Defendants’ Fears That Rival May Use Information To Tortiously Interfere With Business Opportunities Does Not Warrant Attorneys’ Eyes Only Designation
On March 5, 2024, Justice Andrew Borrok granted a motion to compel discovery and declassify certain information marked by the Defendants as “Attorneys’ Eyes Only.” The court in Richmond Global Compass Fund Management GP, LLC, et al. v. Decio Nascimento, et al., Index No. 654190/2021, concluded that Defendants could not limit the provision of certain information solely to the Plaintiff’s attorney even if Defendants feared that the Plaintiff would use that information to tortiously interfere with Defendants’ current and prospective business relations. The Court explained, in part: Read More
- Posted: April 15, 2024 / Commercial Division Blog
Court Denies Motion To Amend Complaint To Add New Claims After Dismissal Of Original Claims On Appeal
On March 11, 2024, Justice Andrew Borrok denied a plaintiff’s motion to amend his complaint to add new theories of liability after the Appellate Division dismissed his original claims. The decision in Finkelstein v. U.S. Bank, National Associate, As Trustee, Index No. 650849/2021, flagged a number of problems with the plaintiff’s proposed amended complaint, including that the claims were untimely and did not relate back to the original complaint. But the Court also noted that the Plaintiff had not shown a reasonable excuse for his delay in moving to amend to add the new claims, rejecting his argument that dismissal on appeal had altered the law in a way that justified amendment. The Court explained: Read More
- Posted: April 12, 2024 / Commercial Division Blog
Court Grants Civil Contempt for Failure to Cooperate with Court-Appointed Receiver
On March 11, 2024, Justice Andrea Masley of the New York County Commercial Division, issued a decision in Bernstein-Deitcher v Gurwitz, 2024 NY Slip Op 30819(U), granting the motion by the Court-appointed receiver to hold the Defendant in civil contempt for lack of compliance with the Court’s prior order requiring the turnover and sale of certain shares of stock to satisfy an unpaid judgment. The Court held that contempt was appropriate despite Defendants’ compliance with certain aspects of that order after the receiver had moved for contempt. The Court explained: Read More
- Posted: April 10, 2024 / Commercial Division Blog
Court Dismisses Complaint Based on Statute of Frauds
On March 7, 2024, Justice Andrew Borrok of the New York County Commercial Division issued a decision in UNO A Brokerage Inc v. Inshur, Inc., 2024 NY Slip Op 30733(U), granting Defendant’s motion to dismiss Plaintiff’s claims, including Plaintiff’s claim for breach of contract based on a provision of New York’s statute of frauds, General Obligations Law § 5-701(a)(10). The Court explained in relevant part: Read More
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