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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

By Tyler Baker and Sean Cornely

In Ashwood Capital, Inc. v. OTG Management, Inc., No. 652087/10 (N.Y. App. Div. 1st Dep’t Jul. 10, 2012), the New York Appellate Division’s First Department unanimously affirmed the dismissal by the Supreme Court Commercial Division (Ramos, J.) of a claim for breach of contract, which refused to permit a party to infuse ambiguity into a commercial contract where the plain terms of the agreement were clear. The First Department reasoned that where the contract at issue, which governed concession payments at New York’s JFK Airport, unambiguously read “Terminal 6,” the contract could not be read to also cover Terminal 5 at the airport, irrespective of what either party understood that term to mean during the drafting process.Continue Reading Looking to Plain Language of Contract, First Department Grounds Concessionaire’s Hopes for Rights at JFK Airport

By Daniel Brown and Victoria Lee

In Deephaven Distressed Opportunities Tradings, Ltd. v. 3V Capital Master Fund Ltd., Index No. 600610/08 (Sup. Ct., NY County, Jun. 26, 2012), Judge Melvin L. Schweitzer denied the plaintiffs’ motion for summary judgment on its damages claims. The case arose from a dispute over the trade of distressed claims in the Sea Container, Inc. bankruptcy. Deephaven and 3V Capital executed trade confirmations that would convey “allowed” claims to 3V Capital subject to a negotiated assignment agreement. The parties signed confirmations on three trades, two of which led to this dispute. In February 2008, Deephaven commenced this action for breach of contract. In October 2011, the court granted Deephaven’s motion for summary judgment against 3V Capital on the issue of breach of contract and ordered that damages would be clarified at a hearing with a special referee report. In April 2012, both parties agreed to cancel the damages hearing and vacate the order of reference. 3V Capital moved to cancel the damages hearing on the basis that it was entitled to a jury trial on the damages. Deephaven cross-moved for an award of damages in connection with a motion for summary judgment.Continue Reading Court Provides Guidance for Seeking Damages Arising From Trades of Distressed Claims

It was announced today that acting Justice Marcy Friedman of the New York Supreme Court has been appointed to the Commercial Division. She succeeds Justice Bernard Fried, who announced in February of 2012 that he would step down from the bench effective July of 2012. Judge Fried had served on the Commercial Division bench since 2004. Justice Friedman, according to her biography, is a University of Pennsylvania law school graduate who began her career at a large corporate law firm, then worked with the Legal Aid Society civil division and MFY Legal Services before being appointed to the New York City Civil Court system (housing court) in 1991. She was elected to the Civil Court in 1994 and re-elected in 2004, but has been sitting by designation in the New York State Supreme Court since 2000.Continue Reading Justice Marcy S. Friedman Appointed to Commercial Division Bench