Commercial Division Dismisses ’33 Act Claim for Lack of Contemporaneous Falsehood
Commercial Division Reiterates that ‘No-Damages for Delay Clauses are Enforceable and a Party Challenging Such Clauses Bears a Heavy Burden’
Commercial Division Enforces Standard for Amending Pleadings
The Commercial Division’s decision in Magnetic Parts Trading Limited v. National Air Cargo Group, Inc demonstrates the flexibility and leniency courts embody when adjudicating motions to amend pleadings. In Magnetic Parts, New York County Supreme Court Justice Robert R. Reed granted National Airlines Cargo Group’s (National Airlines) motion for leave to amend its answer to assert counterclaims against Magnetic Parts Trading Limited (Magnetic Parts) and denied Magnetic Parts’ motion to impose sanctions.
 Magnetic Parts Trading Ltd. v. National Air Cargo Group, Inc, 77 Misc. 3d 1220(A) (Jan. 5, 2023).
Commercial Division Allows Promissory Estoppel to Proceed After Dismissing Contract Claim; Limits Scope of Out-of-State Eavesdropping Law
Does an “agreement to agree” establish an enforceable contract? Not if it fails to provide objective criteria for a court to enforce material terms, according to the Albany County Commercial Division’s decision in Media Logic USA, LLC v. Prinova US, LLC. But all may not be lost for plaintiffs spurned by a promise to do business, as Justice Richard M. Platkin explains how promissory estoppel may provide an alternative avenue for relief. In the same opinion, a discovery-related allegation of unlawful recording prompted Justice Platkin to determine the scope of Illinois’s eavesdropping statute, explaining that it does not prohibit recording (and use thereof) of a participant’s own conversation, and does not apply at all to conversations recorded in New York.
Updates to Modernize Commercial Division Rule on Motion Papers
On December 16, 2022, Acting Chief Administrative Judge Amaker announced amendments to Commercial Division Rule 16, Motions in General, effective January 3, 2023.[i] The amendments provide for the following:
[i] Administrative Order 286/22, N.Y.S. Unified Court Sys. (Dec. 16, 2022), https://www.nycourts.gov/LegacyPDFS/RULES/trialcourts/AO%20286%20Rule%2016%20Commercial%20Division.pdf.
Commercial Division Decision Provides Example of a Pre-Answer Motion to Dismiss Based on Documentary Evidence
On October 11, 2022, the Commercial Division Justice for Bronx County, Justice Gomez, issued a decision on a motion to dismiss in Chen v Fox Rehab. Servs., P.C., 175 N.Y.S.3d 713, 2022 NY Slip Op 50986(U) (Sup. Ct. Bronx Cnty. Oct. 11, 2022). Justice Gomez dismissed nine of ten claims brought by the plaintiffs—for failures to state causes of action—and separately dismissed most of the claims brought by an out-of-state plaintiff—for lack of personal jurisdiction. However, the Court did not dismiss the plaintiffs’ breach of contract claim, despite the defendants’ introducing of documentary evidence aimed at defeating that claim.[i] The decision provides a unique example of a pre-answer motion to dismiss based on documentary evidence.
[i] Chen, 2022 NY Slip Op 50986(U) at 15.
Commercial Division Dismisses Securities Class Action Against Pharmaceutical Company Alleging Failure to Disclose Results from Phase 3 Clinical Trial
One of the most significant pieces of legislation to emerge from the New Deal, the Securities Act 1933 (“the 1933 Act”), imposes a disclosure requirement for registration statements and other securities offerings. The 1933 Act provides that when a registration statement “contain[s] an untrue statement of a material fact or omit[s] to state a material fact required to be stated therein or necessary to make the statements therein not misleading,” investors who purchase those securities have a cause of action to sue in both law and equity. U.S. Code, 15 U.S.C. § 77k. Earlier this October, the Commercial Division considered whether this provision requires biopharmaceutical companies to disclose results from ongoing clinical trials in their securities offerings. See In re Akebia Therapeutics, Inc. Sec. Litig. v. XXX, No. 654373/2021, 76 Misc.3d 1221(A), 175 N.Y.S.3d 715, 2022 WL 9688356 (N.Y. Sup. Ct. October 17, 2022). The Commercial Division gave a mixed response. The court granted a motion to dismiss the complaint, but left open the possibility that pharmaceutical companies might have a duty to disclose results from ongoing clinical trials, if those companies knew about the results and such clinical results constituted “material facts” within the meaning of the 1933 Act. We discuss the Commercial Division’s decision below.
Commercial Division Considers Viability of Fraudulent Misrepresentation Claims Premised on Statements to Third Parties
To state a claim for fraudulent misrepresentation in New York, the plaintiff typically must allege that the defendant made a false statement to the plaintiff. But what if the defendant made the disputed statement to a third party, and the plaintiff claims to have been indirectly injured by that representation? In Harel Alternative Real Est. L.P. v. All Brooklyn Mgmt. LLC, 175 N.Y.S.3d 199 (Sup. Ct. Kings Cnty. Sept. 29, 2022), Kings County Commercial Division Justice Reginald A. Boddie considered whether, and under what circumstances, such a claim is permissible
Proposed Amendment to Commercial Division Rule 36 to Clarify Courts’ Authority to Order Virtual Evidentiary Hearings and Bench Trials
More than two years into the Covid-19 pandemic, the Commercial Division Advisory Council (“CDAC”) has proffered an amendment to the Commercial Division Rules that reinforces a court’s authority to order virtual proceedings even as many offices are resuming in person operations. In particular, CDAC has proposed an amendment to Commercial Division Rule 36 (“Rule 36”), which currently allows virtual evidentiary hearings and bench trials upon consent of all parties. The amendment would explicitly authorize courts to order virtual evidentiary hearings and bench trials without the consent of the parties, “upon a motion showing good cause, or upon the court’s own motion”.
Commercial Division Permits COVID-Related Contract Termination Pursuant to “Market Disruption” Clause
The onset of the COVID-19 pandemic in the Spring 2020 brought immense market uncertainty, which in turn placed serious strain on contractual relationships. Amid that strain, a question on the minds of many commercial parties was the extent to which the underlying contract contained a termination option or other safety valve that could be exercised to relieve a party of the weight of its obligations. While much has already been written on the subject, a recent decision by Commercial Division Justice Joel M. Cohen adds an interesting angle to the discussion: whether a counterparty may unilaterally extinguish a termination option for market disruption by actions deemed to be “off-market.” In Cascade Funding LP – Series 6 v. Bancorp Bank, Justice Cohen answered that question in the negative.
Commercial Division Rejects Piercing the Corporate Veil and Claims of Fraud and Unjust Enrichment Against the Sole Principal
In Salesmark Ventures, LLC v. Jay Singh, JJHM Trading Corp., Justice Joel M. Cohen dismissed, inter alia, the plaintiff’s claim to pierce the corporate veil of the defendant and impose personal liability on the defendant’s sole principal. Underlying the dispute is a contract to purchase millions of synthetic nitrile gloves during the outbreak of COVID-19.
 INDEX NO. 651394/2021, 2022 BL 127452 (Sup. Ct. N.Y. Cty. Mar. 11, 2022)
Court Clarifies Record Date and Indicates Willingness to Approve Proposed Settlement in Renren Derivative Litigation
In our recent article What Rejected Renren Settlement Means for Investor Suits, we analyzed Justice Andrew Borrok’s decision rejecting a proposed $300 million settlement between Renren, Inc. (“Renren”) and minority shareholders in In re: Renren Inc. Derivative Litigation.[i] The article noted certain unresolved issues following Justice Borrok’s rejection of the settlement, including two issues that have been raised in recent rulings or filings: (1) the proper record date to be used to determine the minority shareholders who are entitled to potential recoveries, and (2) whether a prejudgment attachment order imposing restrictions on defendants’ transfer or sale of assets in an amount up to $560 million will remain in place.
Commercial Division Permanently Stays International Arbitration
Earlier this year, in In re New York State Dept. of Health (Rusi Tech. Co., Ltd.), Albany County Commercial Division Justice Richard Platkin issued a decision to permanently stay the arbitration before the China International Economic and Trade Arbitration Commission ("CIETAC") brought by a Chinese company (“Rusi”) against the New York State Department of Health (“DOH”) regarding a purchase contract for KN-95 masks. This decision, which harkens back to the chaotic early days of the pandemic, provides a good reminder for practitioners regarding the “meeting of the minds” requirement of a contract.
 No. 907022/2021 (Sup. Ct. Albany Cty. Jan. 25, 2022).
Commercial Division Force Majeure Decision Provides A Good Overview of the Law Surrounding Leases and the COVID-19 Pandemic
A few months ago, a Commercial Division court granted summary judgment in favor of the plaintiff-landlord in a case involving a commercial lease for a gym that was closed due to COVID-19 restrictions. The decision in Amherst II UE LLC v. Fitness Int’l, LLC, No. 806643/2021, 2021 NY Slip Op 51289(U) (Sup. Ct. Erie Cty. Dec. 8, 2021)—with extensive citations to recent cases—ultimately rejected the Defendant’s force majeure arguments and provides a good overview of the legal issues that have come up with commercial leases during the COVID-19 pandemic.
The First Department Enforces Settlement Agreement, Despite Claims of Economic Duress
The First Department’s recent decision in Zhang Chang v. Phillips Auctioneers LLC seems to have ended the long, turbulent dispute over Gerhard Richter’s 1963 painting of a fighter jet, Düsenjäger. The decision affirmed the unremarkable proposition that parties to a contract cannot avoid their obligations merely by claiming economic duress.
Commercial Division Holds Oral Modification to Written Agreement Unenforceable Under New York’s Statute of Frauds
A recent ruling in the Suffolk County Commercial Division highlights the risk a party faces when agreeing to, and later attempting to, enforce an oral modification to a written contract. In Castle Restoration LLC v. Castle Restoration & Construction, Inc., Commercial Division Justice Elizabeth Emerson determined that New York’s statute of frauds rendered an oral modification unenforceable and, ultimately, left the enforcing party with no remedy in its commercial dispute.
 159 N.Y.S.3d 829 (Sup. Ct., Suffolk Cty. Feb. 9, 2022).
Court Strikes Defendant’s Jury Demand Where Defendant Asserted Equitable Defense of Rescission
In Real Estate Webmasters Inc. v. Rodeo Realty, Inc., Justice Richard Platkin of the Albany County Commercial Division granted plaintiff’s motion to strike Rodeo’s jury demand in connection with Real Estate Webmasters Inc.’s (“REW”) complaint against Rodeo for anticipatory breach of contract.[i] The Court held that Rodeo waived its right to a jury trial by interposing an equitable defense of rescission and related counterclaim for fraudulent inducement arising from the same transaction underlying REW’s complaint.
[i] Real Estate Webmasters Inc. v. Rodeo Realty, Inc., 74 Misc. 3d 1204(A) (N.Y. Sup. Ct. Jan. 24, 2022).
Court Considers Emails and Letters as “Documentary Evidence” in Dismissing Legal Malpractice Complaint Pursuant to CPLR 3211(a)(1) and (a)(7)
Citing “substantial documentary evidence” consisting of emails and letters, Justice Borrok of Manhattan’s Commercial Division concluded that a legal malpractice claim brought by former president of Universal Music Group’s (“UMG’s”) Republic Records, Charlie Walk was based on a “false narrative” and consequently dismissed the complaint pursuant to CPLR 3211(a)(1) and (a)(7).
New York State Unified Court System Adopts New Rules and Guidelines For E-Discovery
On April 11, 2022, the New York State Unified Court System will adopt additional rules and guidelines for Electronically Stored Information (“ESI”). As we explained in our earlier post on these changes, “[t]he goal of the revisions is to address e-discovery in a more consolidated way, modify the rules for clarity and consistency, expand the rules to address important ESI topics consistent with the CPLR and caselaw.”
Commercial Division Reiterates Broad Scope of ERISA Preemption and Difficulty of Pleading Breach of Fiduciary Duty and Conversion Claims Alongside Breach of Contract Claims
The Commercial Division’s decision in Rockmore v. Plastic Surgery Associates, LLP[i] demonstrates the broad scope of ERISA preemption and the difficulty of pleading breach of fiduciary duty and conversion claims alongside breach of contract claims. In Rockmore, Albany County Supreme Court Justice Richard M. Platkin dismissed several claims brought by the departing member of a partnership of physicians. The core claims—which concerned the funding of the partnership’s defined benefit plan—were preempted by ERISA. Separately, Justice Platkin also dismissed breach of fiduciary duty and conversion claims as duplicative of a claim alleging a breach of the operative Partnership Agreement.
[i] Rockmore v. Plastic Surgery Assocs., LLP, 2020 BL 478175, 69 Misc. 3d 1222(A), 135 N.Y.S.3d 259 (Sup. Ct. Albany Cnty. Dec. 2, 2020).
Chief Judge DiFiore Proposes “Long Overdue” Overhaul of New York’s Trial Court Structure
New York’s maze-like trial court system includes 11 separate trial courts, the most in the country. As New York practitioners are well aware, a single dispute may require a litigant to file related claims in multiple courts, resulting in redundant court appearances, duplicative briefs, and unnecessary costs to attorneys and their clients. Critics of New York’s centuries-old system have long advocated for reform. As we explained in a previous post, Chief Judge Janet DiFiore first announced a proposal to streamline the State’s trial court structure in September 2019. Although that initial call for reform did not gain immediate traction in the legislature, on March 3, 2022, Chief Judge DiFiore announced a renewed proposal “to achieve long-overdue reform and simplification of the State’s overly complicated court structure.”[i]
[i] Press Release, “Chief Judge DiFiore, Senate and Assembly Judiciary Chairs Hoylman and Lavine Announce Introduction of Constitutional Amendment for Court Reform and Simplification” (March 3, 2022), https://www.nycourts.gov/LegacyPDFS/press/pdfs/PR22_03.pdf).
Commercial Division Bench Trial Demonstrates Importance of Witness Preparation
Justice Borrok of Manhattan’s Commercial Division presided over a bench trial between a contractor and a sub-contractor concerning payments connected to work on New York City Housing Authority’s (NYCHA) Harlem River Houses.[i] The sub-contractor, Citi Building Renovation (Citi), brought an action claiming monies due on the amended sub-contract signed with the contractor, Neelam Construction Corp. (Neelam). At trial, Citi asserted three causes of action—breach of contract; promissory estoppel; and unjust enrichment—claiming damages of $426,688 plus interest.
[i] Citi Bldg. Renovation, Inc. v. Neelam Constr. Corp., 70 Misc.3d 1204(A) (Sup. Ct., NY Cnty., Dec. 9, 2020).
Commercial Division Finds Work Performed by Subcontractor in New York Insufficient To Establish Personal Jurisdiction Over Prime Contractor Outside of New York
In December 2020, the Suffolk County Supreme Court decided a novel question of personal jurisdiction law in Black Diamond Aviation Group LLC v. Spirit Avionics, Ltd.[i] Justice James Hudson determined that personal jurisdiction was not established when the contractor defendant released an aircraft for transport to a New York airport in order for its subcontractor to perform necessary upgrade and maintenance work there. In so holding, the Court provided a helpful recitation of the type of contacts necessary to establish personal jurisdiction under New York’s long-arm statute and the Due Process clause.
[i] 70 Misc. 3d 823, 137 N.Y.S.3d 890 (Sup. Ct. 2020).
Court of Appeals Holds SEC Disgorgement Payment Does Not Constitute Excludable “Penalty” for Purposes of Insurance Coverage Dispute
Recently, the New York Court of Appeals issued another ruling in a long-running insurance coverage dispute concerning $140 million in disgorgement paid by Bear Stearns pursuant to an SEC settlement over fifteen years ago.
Recent Commercial Division Decision Provides a Primer to the Myriad of Potential Issues Associated with Collecting A Judgment Against Alleged Foreign Alter-Egos
On November 10, 2021, a Commercial Division Court issued a decision on a motion to dismiss the claims brought by Wilmington Trust Company (“WTC”) against a wide range of parties that WTC alleged to be alter egos of an insolvent entity. This decision, in Cortlandt St. Recovery Corp. v. Bonderman, No. 653357/2011, Doc. No. 757 (Sup. Ct. N.Y. Cty. Nov. 10, 2021), provides a good introduction into the variety of issues that can arise when a party brings claims against alleged foreign alter egos.
First Judicial District Assigns All Securities Act of 1933 Matters to Hon. Andrew Borrok
On December 30, 2021, Administrative Judge Deborah A. Kaplan of the First Judicial District announced that, for judicial economy, any pending actions or future actions commenced pursuant to The Securities Act of 1933 (15 U.S.C. § 77a et seq) shall be assigned to the Hon. Andrew Borrok of the New York County Commercial Division. These types of cases, by their nature, are typically assigned to the Commercial Division when filed in state court. Although similar consolidation orders have been issued in the Commercial Division in the past—for example, all new residential-mortgage-backed-securities cases were consolidated in Part 60 for a period of time—this appears to be the first time that all cases involving a particular statute have been consolidated before a single Commercial Division justice. In order to effectuate the consolidation, when e-filing a new Securities Act of 1933 matter, practitioners should select “Securities Act of 1933” as the case type from the “Other Commercial” drop-down menu. For pending Securities Act of 1933 cases, practitioners should e-file for Judicial Intervention. When prompted with the question “Will the ‘Nature of the Action’ stay as . . .”, “No” should be selected and the case action type should be updated to “Securities Act of 1933.”
New Commercial Division Rule Expanding the Scope of Mandatory Settlement Conferences Is Now in Effect
Update: As un update to our earlier post on the amendment of Commercial Division Rule 30 to expand the scope of mandatory settlement conferences—the new amendment is now in effect. As of February 1, 2022, absent an exemption, “the parties in every case pending in the Commercial Division must participate in a court-ordered mandatory settlement conference (MSC) following the filing of a Note of Issue.” Under the new provision, parties must submit a request seeking assignment to one of the following four tracks for an MSC, and all parties must send a representative with knowledge of the case and authority to settle it to the court-ordered MSC once it has been assigned to one of these tracks:
New York Courts Resume In-Person Operations
In an earlier post, we reported that beginning January 2022 all oral arguments in the First and Second Departments would be conducted virtually out of concern for the health and safety of the public and court employees. As the number of new COVID-19 cases has since decreased, both courts have announced that in-person oral arguments will resume on Monday, February 28, 2022. After this change, the courts will not grant requests for remote arguments—all appeals will be argued in person or submitted without argument.
 https://www.nycourts.gov/courts/ad1/PDFs/AD1-2.0January2022Updatefinal.pdf; https://www.nycourts.gov/
Commercial Division Promulgates New Rule Regarding Mandatory Settlement Conferences
On January 7, 2022, the Commercial Division amended Rule 30 of section 202.70(g) of the Rules of the Commercial Division of the Supreme Court. Rule 30 is entitled “Settlement and Pretrial Conferences,” and the amendment is effective as of February 1, 2022. The amendment adds a new provision to Rule 30 that provides for mandatory settlement conferences in Commercial Division cases following the filing of a Note of Issue.
New York Courts Return to Virtual Operations Amid Omicron Surge
As the number of new COVID-19 cases reached record levels, the First and Second Departments announced that beginning January 2022, and until further notice, oral arguments will be conducted virtually. The return to remote proceedings marks the latest challenge practitioners and parties have faced during the COVID-19 pandemic. Proceedings in both courts will continue to be livestreamed over the internet. In a joint statement, the Presiding Justices of the First and Second Departments, Rolando Acosta and Hector LaSalle, expressed hope that both courts “will be able to safely recommence in-person proceedings in February.” Until then, the Justices committed to “closely monitor the trends regarding the virus and stand ready to swiftly adapt as needed to protect the public.”
The Commercial Division Gets A New Corporate Disclosure Rule
Commercial Division Promulgates New Rule Regarding Remote Depositions
Following up on the recent addition of a new rule governing virtual evidentiary hearings and trials (https://www.pbwt.com/ny-commercial-division-blog/new-commercial-division-rule-on-virtual-evidentiary-hearings-and-trials/), last week, the Commercial Division promulgated Rule 37 of section 202.70(g) of the Rules of the Commercial Division of the Supreme Court. Rule 37 is entitled “Remote Depositions,” and it is effective as of December 15, 2021. Along with Rule 37, the Commercial Division also added Appendix G as a form protocol for parties to use for remote depositions.
Fraud Claim Dismissed Where Buyer Disclaimed Reliance on Sellers’ Representations
In Arco Acquisitions, LLC v. Tiffany Plaza LLC, Justice Elizabeth Hazlitt Emerson of the Suffolk County Commercial Division granted defendants’ motion to dismiss Arco’s lawsuit, which alleged that defendants committed fraud in the sale of commercial real estate by misrepresenting incoming rent to inflate the value of the property. The Court found that the parties’ contract provided that Arco assumed all responsibility to investigate the property’s leases and tenancies, and held that the contractual disclaimer precluded Arco from claiming that it entered into the agreement due to fraudulent representations about the rent roll.
No Joint Venture for Sandy Subcontractors
A recent decision in the Suffolk County Commercial Division clarifies the requirements for establishing a joint venture and provides litigants with a clear example of a potential pleading pitfall with respect to claims relating to joint ventures.
First Department Announces Pilot Program for Interlocutory Appeals Relating Exclusively to Discovery Matters
Recently, the First Department announced a new pilot program for interlocutory appeals from the Commercial Division related to discovery matters. Beginning on January 1, 2022, the perfection period for interlocutory appeals of discovery disputes will be shortened from six months to four months. The goal of the program is to “promptly resolve issues involving discovery disputes that should be addressed before a litigation can proceed.”
 Interlocutory Appeals from the Commercial Division of the Supreme Court Relating to Discovery Matters, N.Y. St. Unified Ct. Sys., https://www.nycourts.gov/courts/ad1/PDFs/Pilot%20Program-CommercialInterlocutoryAppealsDiscovery.pdf
New Commercial Division Rule on Virtual Evidentiary Hearings and Trials
On October 19, 2021, Chief Administrative Judge Marks announced the new Commercial Division Rule 36, Virtual Evidentiary Hearing or Non-Jury Trial, effective December 13, 2021.
Recent Westchester County Commercial Division Decision Demonstrates the High Bar Required for Obtaining Mandatory Injunctive Relief
In Costello v. Molloy, Justice Gretchen Walsh of the Westchester County Commercial Division denied Plaintiff William Costello’s request for a mandatory injunction against Defendants Ronald Molloy and Curis Partners, LLC reinstating Costello as a member of the LLC. Although the Court found that Costello demonstrated a likelihood of success on the merits of his claim that his LLC membership was wrongfully terminated, the Court held he failed to clearly establish the type of extraordinary circumstances necessary to warrant the granting of mandatory injunctive relief reinstating his membership in Curis.
The Importance of Proper Notice in Defending Against Yellowstone Injunctions
In Ronald Benderson 1995 Trust v. Erie County Medical Center Corporation, Justice Walker of the Erie County Commercial Division granted Plaintiff’s request for a Yellowstone injunction where the defendant landlord provided a faulty notice of default to the plaintiff tenant. This decision highlights the importance of proper notice in order to successfully defend against a Yellowstone injunction.
The Commercial Division Gets A New Corporate Disclosure Rule
On October 4, 2021, Chief Administrative Judge Lawrence K. Marks promulgated Rule 35 of the Rules of Practice for the Commercial Division to require corporate entities litigating or seeking to intervene in cases to submit statements disclosing any corporate parent or publicly held companies that are sufficiently invested in the party or proposed intervenor.
New York Supreme Court Addresses New Uniform Rule Regarding Summary Judgment Motions Adapted from Commercial Division Rules
In a recent decision in Amos Fin. LLC v. Crapanzano, et al., the New York Supreme Court, Rockland County, addressed one of the new Uniform Rules that went into effect on February 1, 2021—Uniform Rule 202.8-g(a). Uniform Rule 202.8-g(a) provides that any party moving for summary judgment must “annex to the notice of motion a separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried.” Although it is derived from Commercial Division Rule 19-a, Uniform Rule 202.8-g differs from the Commercial Division Rule, which provides only that for a motion for summary judgment, “the court may direct” that the moving party annex such a statement to its motion.
Commercial Division Dismisses Claims Alleging Monopoly Control Over Waste Services Market in Capital Region
In Cty. Waste & Recycling Serv., Inc. v. Twin Bridges Waste & Recycling, LLC, Justice Platkin of the Albany County Commercial Division Court considered plaintiffs’ (County Waste and Recycling Service, Inc. (“County Waste”), Robert Wright Disposal, Inc.(“Wright Disposal”), and third-party defendants Waste Connections, Inc. and Waste Connections US, Inc. (“Waste Connections”)), joint motion under CPLR 3211(a)(7) and (8) to dismiss the Amended Counterclaims and Third-Party Complaint (“ACTC”) of defendant Twin Bridges Waste and Recycling, LLC (“Twin Bridges”). Justice Platkin’s opinion touches on various issues concerning anti-competitive behavior in New York State, as well as personal jurisdiction.
New York State Unified Court System Issue Request for Comment On New Commercial Division ESI Rules
On September 7, 2021, the New York State Unified Court System published a request for comment on proposed additional rules and guidelines for Electronically Stored Information (“ESI”). According to the proposal, “[t]he goal of the revisions is to address e-discovery in a more consolidated way, modify the rules for clarity and consistency, expand the rules to address important ESI topics consistent with the CPLR and caselaw, and to provide further detail in Appendix A – Proposed ESI Guidelines than is practical in the Commercial Division Rules.”
Forum Selection Clauses: Commercial Division Issues Reminder That Choice of Venue Must Be Designated with Specificity
Forum selection clauses are a common feature of commercial arrangements, allowing contracting parties to opt out of default procedural rules and determine ex ante which state will have jurisdiction over any future dispute arising from the agreement and even the particular venue where that dispute must be resolved. But as parties are often reminded, opting out of these default principles—whether jurisdiction or venue, or both—requires clarity and specificity.
Royalty Agreement Does Not Entitle Bob Dylan’s Co-Songwriter Share Proceeds of Dylan Catalog Sale
Does an assignment by a co-songwriter of that co-songwriter’s rights in exchange for a performance and use royalty entitle the co-songwriter to a share of the sale proceeds when the rights are later sold by the other co-songwriter to a third party? No, according to Justice Barry Ostrager’s recent decision in Levy v. Zimmerman. In his decision, Justice Ostrager dismissed a suit filed by the estate of songwriter Jacques Levy in the New York County Commercial Division seeking a share of the more than $300 million in proceeds from the sale by Bob Dylan of his song catalog to Universal Music Group. In dismissing the case, Justice Ostrager ruled that a 1975 contract unambiguously limited Levy’s rights to a 35% royalty on the performance and use of the ten songs he co-wrote with Dylan in the early 1970s.
Commercial Division Decision Suggests Insurers May Struggle to Enforce Anti-Assignment Clauses in Prior-Incurred Loss Cases
In Certain Underwriters at Lloyd’s v. AT&T Corp., Justice Cohen of the New York County Commercial Division Court granted a motion for partial summary judgment and determined that Nokia, through its predecessor Lucent, had the right by assignment to seek coverage under certain insurance policies issued to AT&T that contained anti-assignment clauses. Although the general rule in New York is that such anti-assignment clauses are enforceable, this decision highlights how it can be more challenging to bar assignment in the special context of an insurance policy.
Commercial Division Grants Order for Prejudgment Attachment Where Defendants’ Post-Litigation Transfer of Assets Could Frustrate a Future Judgment
In In re Renren, Inc. Derivative Litigation, Justice Andrew Borrok of the New York County Commercial Division granted Plaintiffs’ order to show cause for prejudgment attachment against certain assets of defendants Oak Pacific Investment (“OPI”), Renren SF Holdings Inc. (“Renren SF”), and Renren Lianhe Holdings (“Renren Lianhe”) (collectively, “Defendants”). The opinion addresses whether allegations of defendants’ improper sale of assets for less than fair market value to frustrate a future judgment warrant a preliminary injunction or prejudgment attachment pursuant to CPLR § 6201.
Recent Commercial Division Decision Provides a Refresher on Common Statutes of Limitation Issues
Recently, in F.W. Sims, Inc. v. Simonelli, Index No. 022942/2014, Doc. No. 412 (Sup. Ct., Suffolk Cnty., May 7, 2021), the Commercial Division Court denied a motion to dismiss on statute of limitation as well as full faith and credit grounds. This decision provides a good refresher on common limitations period issues that arise in commercial cases and is also an example of the impact, or lack thereof, of a settlement in a related matter.
Defendant’s Unsuccessful About-Face Results in $5 Million Judgment
Litigants arguing that their adversary should be judicially estopped from pursing a particular position in litigation face a relatively high burden to invoke the doctrine successfully. Two recent decisions from Justice Borrok help illustrate the specific circumstances under which courts are most likely to estop a litigation pursuant to this doctrine.
Split First Department Panel Re-examines the Continuing Wrong Doctrine
If a party hires an investment advisor that goes on to allegedly systematically abuse its role by engaging in self-dealing in violation of its contractual obligations and fiduciary duties, when does the applicable statute of limitations period begin? Does the wrongdoing give rise to a single claim with a single statute of limitations period starting at the first incident of self-dealing, or does each individual incident of self-dealing give rise to multiple new claims, each with a new statute of limitations period? In other words, is there just one wrong, with continuing effects, or a series of wrongs? And what is the effect of a contractual provision that imposes ongoing obligations on the statute of limitations inquiry? These questions are not only conceptually challenging. When that investment advisor accused of malfeasance has been managing a multi-billion dollar portfolio for many years, the consequences for when the advisee can bring a timely claim in New York State are significant.
Does the COVID-19 Pandemic and Subsequent Emergency Actions by the Governor Make a Commercial Lease Voidable?
In the wake of the COVID-19 pandemic (“COVID”), a common question that arises is whether commercial leases are enforceable when COVID and subsequent governmental responses frustrate the purpose of the lease or render its performance impossible. There is not a one-size-fits-all answer, as the answer will turn on the underlying facts, but the lack of a contractual force majeure provision in the lease will not bar the use of common law defenses. This is evidenced in a recent Bronx County Commercial Division decision by Justice Eddie J. McShan in 1877 Webster Ave. Inc. v. Tremont Ctr., LLC.
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