New York Commercial Division Round-Up Blog

News & Updates on Cases Decided in the Commercial Division of the New York State Supreme Court

Latest from New York Commercial Division Round-Up Blog - Page 2

In AP Services, LLP v. Lobell et. al, No. 651613/2012, 2015 NY Slip Op 31115(U) (N.Y. Sup. Ct. June 19, 2015) (argued Feb. 21, 2014), Justice Friedman, applying Delaware Law, denied a motion to dismiss plaintiff AP Services, LLP’s first cause of action alleging breach of fiduciary duty against the defendants, former directors of Paramount Acquisition Corp., while granting dismissal of the second cause of action against them for allegedly aiding and abetting the breach of fiduciary duty.…
In Justinian Capital SPC v. WestLB AG, etc. et al., 2015 N.Y. Slip Op. 04381 (1st Dep’t May 21, 2015), the Appellate Division affirmed the February 25, 2014 decision of the New York County Supreme Court, Commercial Division (Kornreich, J.), 43 Misc. 3d 598, holding that actual payment for the transfer of rights to a legal claim is required in order to qualify for the champerty doctrine’s safe harbor provision.…
The Commercial Division Rules are once again the subject of several proposed amendments, as detailed below.  While these proposals are not as far-reaching as some of the rule changes enacted in 2014, they nonetheless raise important practice considerations for parties and their counsel engaged in practice before the Commercial Division.  Expect to see these new rules take effect later this year.…
The past year has been a busy time for anyone keeping up with the Rules for the Commercial Division of the New York State Court System.  The Commercial Division Advisory Council, led by Justice Eileen Bransten, has been pushing through various reformative measures, most of which were first recommended in the June 2012 Report and Recommendations to the Chief Judge of the State of New York of the Chief Judge’s Task Force on Commercial Litigation in the 21st Century.  Below is a brief summary of the new rules, which are already in effect or take effect on April 1, 2015.…
Effective September 2, 2014, the New York Supreme Court implemented a major change to the Commercial Division rules governing privilege logs submitted during the course of litigation. (See New York Supreme Court, Administrative Order of the Chief Administrative Judge of the Courts: Rule 11-b (July 8, 2014)).  Previously litigants were required to produce a traditional “document-by-document” privilege log that included a separate entry for each document being withheld, pedigree information for that document, and the specific privileges insulating the document from production.  Under Rule 11-b of the Rules of Practice for the Commercial Division, Litigants can instead produce “categorical” privilege…
In Webmediabrands, Inc. v. Latinvision, Inc., No. 601048/2010, the Supreme Court (J. Friedman)  pierced the corporate veil at the summary judgment stage. Under New York law, the factors used to determine whether a court should allow plaintiffs to pierce the corporate veil include “a failure to adhere to corporate formalities, inadequate capitalization, commingling of assets, use of corporate funds for personal use,” an “overlap in ownership and directorship,” and “common use of office space and equipment.” For this reason, corporate veil piercing or alter ego claims of liability are fact-laden and, typically, are not considered well suited for resolution…
In Mashreqbank PSC v. Ahmed Hamad Al Gosaibi & Bros. Co., 2014 N.Y. Slip Op. 02381, the New York Court of Appeals ruled that a court may sua sponte decide the issue of forum non conveniens so long as it allows the parties to brief and argue the matter.  The Court of Appeals further found that the mere transfer of money through a New York-based bank account was not sufficiently compelling to keep an otherwise foreign case in a New York court.…
The New York Supreme Court, Commercial Division, has announced that two of its judges, Justices Oing and Scarpulla, will participate in a new program strongly encouraging use of hyperlinks in submissions to the Court.  The hyperlinks are to be utilized in all affidavits, affirmations, exhibits within those affidavits and affirmations, and memoranda of law that are filed electronically through the New York State Courts Electronic Filing System (“NYSCEF”) for cases that are assigned to Justices Oing and Scarpulla.…
Several recent decisions by Commercial Division Justices, two of them affirmed by the First Department, have clarified the limitations and standards applied in actions brought pursuant to Article 75 of the CPLR.  Article 75 permits participants in binding arbitration, irrespective of what arbitral forum they are in, to seek assistance from New York State Supreme Court judges under certain circumstances.…
New York court officials have approved an amendment to Section 202.70(a) of the Commercial Division Rules, which will increase in the minimum monetary threshold of $150,000 to $500,000 for the commencement of lawsuits to be adjudicated in Manhattan’s Commercial Division.  The Commercial Division handles complicated commercial cases as part of the Supreme Court of New York State.  The new rule is effective February 17, 2014.…
Effective Monday, February 3rd, Justice Saliann Scarpulla of the New York Supreme Court was appointed to the New York County Commercial Division.  Justice Scarpulla succeeds Justice Barbara Kapnick, who was appointed to the Appellate Division, First Department, by Governor Andrew Cuomo on January 17, 2014.  According to her judicial biography, Justice Scarpulla is a 1986 graduate of Brooklyn Law School.  After law school, Justice Scarpulla was a Court Attorney for Justice Alvin F. Klein (1986-1987), a Litigation Associate at Proskauer Rose LLP (1988-1993), Counsel/Senior Litigator at the FDIC New York Legal Services Office (1993‑1997), and Senior Vice President and…
The Commercial Division Advisory Council has proposed that the court adopt a pilot program for New York County’s Commercial Division that would send every fifth newly assigned case to mediation unless the parties stipulate otherwise or one party makes a good cause showing that mediation would be ineffective or unjust.  A copy of the proposal is available here.…
In Khalife v. Audi Saradar Private Bank SAL, 2013 NY Slip Op 05971 (1st Dep’t Sept. 24, 2013), the First Department declined to broaden CPLR § 303, holding that the statute does not authorize personal jurisdiction over a foreign person or entity when the non-domiciliary seeks some form of affirmative relief in a New York court, as opposed to commencing an action.  CPLR § 303 provides that “[t]he commencement of an action in the state by a person not subject to personal jurisdiction” designates the non-domiciliary’s attorney as agent for service of process.  Khalife makes it clear that an…
In Burlington Coat Factory of N.Y., LLC v. Majestic Rayon Corp., No. 652511/2012, the Supreme Court (J. Kornreich) granted plaintiff Burlington Coat Factory’s (“Burlington”) motion for an injunction to stay and toll the expiration of a thirty-day default cure period and enjoin the defendant landlords Majestic Rayon Corp. and Cudge Realty, LLC (“Landlords”) from terminating Burlington’s lease or tenancy, despite uncertainty over Burlington’s ability to cure the default.  Specifically, the Court found that Burlington’s professed “willingness to do whatever is necessary to cure [the] lease default,” coupled with a potential means to cure, was sufficient to grant the injunctive…
In Aetna Life Insurance Company v. Appalachian Asset Management Corp, et al., 2013 Slip Op 05506 (1st Dep’t July 30, 2013) the Appellate Division affirmed the April 13, 2012 decision of the New York County Supreme Court, Commercial Division (Ramos, J.), which sustained claims by Aetna Life Insurance Company (“Aetna”) for beach of the Connecticut Unfair Trade Practices Act (“CUTPA”), breach of fiduciary duty, negligence, and recklessness against certain wholly-owned subsidiaries of Lehman Brothers Holding, Inc. (“LBHI”) and individuals acting on behalf of those companies (collectively, the “Defendants”).…