Be Sure to Sue Before Your Defendant Moves: Appellate Division Finds No Jurisdiction Over Defendant Company After Sale of Its New York Assets

In Matter of CDR Créances S.A.S. v First Hotels & Resorts Invs., Inc., 2016 Slip Op. 04888 (1st Dep’t June 21, 2016), the Appellate Division reversed a December 11, 2014 Order by New York County Commercial Division Justice Lawrence K. Marks, which denied respondent First Hotels & Resorts Investments, Inc.’s (“First Hotels’”) motion to dismiss the action for lack of personal jurisdiction.  The action related to an $82 million loan made in 1991 by a predecessor in interest of petitioner CDR Créances S.A.S. (“CDR”) to Euro-American Lodging Corp. (“Euro-American”).  The loan was made to enable Euro-American to acquire Manhattan real estate and convert it into a hotel.  After Euro-American defaulted on that loan, CDR obtained a foreign judgment against Euro-American that CDR domesticated in New York.  CDR subsequently commenced an action and obtained a New York judgment against a handful of individuals affiliated with Euro-American based upon allegations that those individuals engaged in a conspiracy to convert the proceeds of the loan for their own benefit.  One of those individual judgment debtors was Maurice Cohen, one of the principals of Euro-American.

Continue Reading

Commercial Division Rules Revamp Encourages International Arbitration Matters In The New York County Commercial Division

The Commercial Division Advisory Council continued its revamp of the Commercial Division Rules on October 14, 2015, when it implemented amendments to 22 NYCRR § 202.70(b) and (c).  As we discussed in this blog when the amendments were proposed in April, the amendment to 22 NYCRR § 202.70(b) subjects actions to compel or stay domestic arbitration hearings and actions to affirm or disaffirm domestic arbitration awards to the same eligibility criteria as other matters.  Such actions must involve equitable and/or declaratory relief, or meet the monetary threshold of $500,000 in New York County, $200,000 in Nassau County, $150,000 in Kings County, $100,000 in Suffolk and Queens Counties and the Eighth Judicial District, and $50,000 in Onondaga and Albany Counties.  Those actions must also involve one of the commercial issues set forth in 22 NYCRR § 202.70(b), meaning the subject matter of the case must involve principal claims for: breach of contract or fiduciary duty, fraud, misrepresentation, business tort, statutory and/or common law violation where the breach or violation is alleged to arise out of business dealings, transactions governed by the Uniform Commercial Code, transactions involving commercial real property, shareholder derivative actions, commercial class actions, business transactions involving commercial banks and other financial institutions, internal affairs of business organizations, accounting and legal malpractice arising from commercial representations, environmental insurance coverage, or dissolution of business entities. Continue Reading

Justice Friedman Allows Breach of Fiduciary Duty Claim to Proceed Against Corporate Directors Under Delaware Law

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. Continue Reading

Pay to Play: Appellate Division Upholds Ruling that Payment is Required to Qualify for Champerty Safe Harbor Provision

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. Continue Reading

Commercial Division Practice Continues to Shift Towards Federal Standards with Four Proposed Rule Changes

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. Continue Reading

Justice Anil C. Singh Appointed to New York County Commercial Division

On Tuesday, April 7, 2015, Justice Anil C. Singh of the New York Supreme Court was appointed to the New York County Commercial Division.  Justice Singh succeeds Justice Melvin Schweitzer, who retired last year.  According to his judicial biography, Justice Singh is a 1986 graduate of Antioch School of Law in Washington, D.C. Continue Reading

Keeping Up With The Commercial Division(s)

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. Continue Reading

New Commercial Division Rule Seeks to Streamline Privilege Log Requirements for Litigants

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 logs.  Categorical privilege logs designate privileged documents by category, rather than in an item-by-item list.

Continue Reading

Commingling and Personal Piggy Bank Leads to Summary Judgment on Veil Piercing Claims

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 at the summary judgment stage.

Continue Reading

“Get Outta Here!”: The Court Of Appeals Finds that New York Judges May Sua Sponte Dismiss Cases on Forum Non Conveniens Grounds in Limited Circumstances

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.

Continue Reading

LexBlog