By Sarah Aberg 

In IDT Corp. v Tyco Group, S.A.R.L., 2012 NY Slip Op 09190 (1st Dept. Dec. 27, 2012) the Appellate Division held that if you sign a binding agreement that includes an obligation to negotiate, the obligation to negotiate is not extinguished even if the parties sue for other breaches of that agreement.Continue Reading It Ain’t Over ‘Till the Fat Lady Sings – Party’s Contractual Obligations Continue In Agreement To Negotiate

Updating our blog post from November 7, 2012, Governor Andrew Cuomo issued Executive Order 81 on November 20, 2012. Executive Order 81 states that “[t]he suspension of provisions of law ordered by Executive Order Number 52 shall continue through December 25, 2012[.]” The following types of time limitations were suspended by Executive Order 52, and are therefore affected by Executive Order 81:Continue Reading Executive Order Suspending New York State Statutes of Limitations To Expire on December 25, 2012

By Rob Friedman and Tyler Baker

In HCG Mezzanine Dev. Fund, L.P. v. Jreck Holdings, LLC, Index No. 652797/2011 (N.Y. Sup., N.Y. Cnty. Oct. 26, 2012), the New York Supreme Court (Kornreich, J.) granted Plaintiff HCG Mezzanine Development Fund, L.P.’s (HCG) motion for summary judgment in lieu of complaint against defendant Jreck Holdings LLC (“Jreck Holdings”), two of its subsidiaries, and Christopher Swartz, the CEO and President of Jreck Holdings (collectively, “defendants”). The court denied an argument that the promissory notes and guaranties in question were subject to oral modification.Continue Reading Commercial Division Denies Oral Modification and Grants Summary Judgment in Lieu of Complaint

By Kevin Puvalowski and Brian Garrett

In BDCM Fund Advisor, L.L.C. v. Zenni, No. 602116/08 (N.Y. Sup. Ct. Nov. 15, 2012), Judge Eileen Bransten granted a motion for partial summary judgment for the defendants/counterclaim-plaintiffs, James J. Zenni (“Zenni”) and his group of investment firms (collectively “Defendants”), who were seeking a percentage of the profits from the sale of a fund managed by Stephen H. Deckoff (“Deckoff”), BDCM Fund Advisor, L.L.C., and Black Diamond Capital Holdings, L.L.C. (collectively “Plaintiffs”).Continue Reading Keep Sticking to the Four Corners – Extrinsic Evidence of Parties’ Prior Conduct Cannot Alter the Interpretation of an Unambiguous Contract

On October 31, 2012, Governor Andrew Cuomo issued Executive Order 52, which effectively suspends the statute of limitations for any claim where the time to file such claim expired on October 26, 2012 or later, until further notice. The Governor suspends, among other laws, Section 201 of the New York Civil Practice Law and Rules (“CPLR”), which governs virtually all statutes of limitations for civil claims in New York. The Governor has exercised this authority pursuant to Section 29-a of Article 2-B of the Executive Law of New York, which is only available where, as here, a New York State disaster emergency has already been declared. Under normal circumstances, even a New York State court cannot extend the time within which an action must be commenced under Section 201 of the CPLR.Continue Reading Governor Cuomo Issues Executive Order Suspending Statutes of Limitations Due to Hurricane Sandy

By Rena Andoh

In the case BDCM Fund Adviser, L.L.C. v Zenni, 2012 NY Slip Op 06384 (1st Dep’t Sept. 27, 2012), the First Department unanimously upheld a decision by Justice Eileen Bransten of the Commercial Division dismissing the claims of plaintiffs BDCM Fund Adviser L.L.C., Black Diamond Capital Management Holdings, L.L.C., and Stephen H. Deckoff (collectively “plaintiffs”) for unfair competition and disparagement.Continue Reading First Department Affirms Commercial Division Ruling That Facts Arising After Litigation Commences Cannot Save An Otherwise Deficient Claim

By Sarah Aberg

In Burt v. Secure Telemedicine, LLC, Index No. 651234/12 (N.Y. Comm. Div., Sept. 14, 2012), the Commercial Division (Schweitzer, J.) reconfirmed the need for specific allegations of personal contact with the state of New York in order for plaintiffs to meet the personal jurisdiction pleading requirements under CPLR 302.Continue Reading You May Want to Keep That Opinion To Yourself – Commercial Division Considers Whether a Legal Opinion Letter Triggers Personal Jurisdiction Under the CPLR

By Brian Garrett

In Karfunkel v. Sassower, No. 602244/2009 (N.Y. Sup. Ct. Sept. 12, 2012), Judge Peter O. Sherwood granted a motion for summary judgment dismissing plaintiff’s claim of civil fraud for lack of both scienter and justifiable reliance, holding that sophisticated parties may not justifiably rely on alleged fraudulent misrepresentations when accurate information is readily accessible. The ruling also reinforced the principle that sophisticated parties must meet a heightened standard for justifiable reliance of alleged misrepresentations.Continue Reading Do Your Diligence – Commercial Division Finds That Sophisticated Parties May Not Justifiably Rely On Alleged Misrepresentations When Information Is Readily Accessible

In Severstal Dearborn, LLC et al. v. RG Steel, LCC et al., No. 653351/11 (Sup. Ct June 26, 2012) (“Severstal Dearborn”), the New York Commercial Division (Kornreich, J.) recently held that, under Delaware law, where a contract calls for payment of a sum to a third party beneficiary, one party to the contract can compel the other to make such payment through specific performance. The court held that such specific performance is called for even where the first party would not, ostensibly, suffer damages upon the other party’s refusal to pay.
Continue Reading Standing in Another’s Place: The Commercial Division Applies Delaware Law to Specifically Enforce a Contract

By Rena Andoh and Kathryn Hines

In Princes Point LLC v. AKRF Engineering, P.C., No. 601849/2008 (N.Y. Sup. Ct. Jul. 13, 2012), Judge Charles Edward Ramos granted a motion for summary judgment dismissing plaintiff’s claims of fraud, negligent misrepresentation, rescission and specific performance, relating to a real estate agreement and amendments thereto.Continue Reading Buyer Beware: Court Decision Highlights Importance of Performing Careful Diligence