By Jane Qin

In Zyskind v. FaceCake Marketing Technologies, Inc., Index No. 651240/10 (Sup. Ct., NY County, Dec. 15, 2010) (“FaceCake Marketing”), Justice Bernard J. Fried granted summary judgment in lieu of complaint to plaintiffs Beryl Zyskind and Joel Gold, holding that ten notes issued to them (the "Notes") on account of investment loans they made to the defendant, FaceCake Marketing Technologies, Inc. ("FaceCake"), were instruments "for the payment of money only." 
 Continue Reading Holding A Note That References Another Document? It Still May Permit You To Obtain Summary Judgment in Lieu of Complaint

By: Sean J. Kirby

In Brown, et al.  v. Noble, Inc., et al., Index No. 600876/2010 (Sup. Ct., NY County, Dec. 2, 2010) (“Brown v. Noble”), Justice Bernard Fried granted defendant Thomas Caruso’s (“Caruso”) motion to dismiss plaintiffs Robert Brown and RB Group LLC’s (“Plaintiffs”) complaint, even though the Motion was filed approximately 1 week late.
 Continue Reading Untimely Filing Of Motion To Dismiss Does Not Warrant Automatic Dismissal Where Motion Is Meritorious And Opposing Party Will Not Be Prejudiced

By Amanda Zablocki

On October 12, 2010, Judge Melvin L. Schweitzer held that Bank of America’s filing of an interpleader complaint to resolve ambiguities in an indenture contract was in good faith, reasonable, and prudent, and therefore denied the defendant’s motion to dismiss. Bank of America, N.A. v. Prima Capital Advisors LLC, Index No. 600740/10 (Sup. Ct., NY County Oct. 12, 2010). The Court further held that a material question of fact existed, weighing against summary judgment. Id.

Continue Reading Bank of America Avoids Multiple Liability By Filing Interpleader Complaint

By Lisa Lewis

On October 29, 2010, Justice James A. Yates refused to dismiss tort and defamation claims, among other claims, against the authors and the publisher of a book about Alcor Life Extension Foundation, Inc. (“Alcor”). Alcor Life Extension Foundation, Inc. v. Larry Johnson, Vanguard Press, Inc. and Scott Baldyga, Index No. 113938/2009 (Sup. Ct., NY County, Nov. 3, 2010). Alcor is a not-for-profit organization in the field of cryonics, which is the practice of keeping a clinically dead human body or brain frozen in the hope of later restoring it to life with the help of future technologies. The book, called Frozen, was written by Larry Johnson (“Johnson”), a former employee of Alcor, and co-author Scott Baldyga (“Baldyga”) and published by Vanguard Press, Inc. (“Vanguard”). Alcor alleged in its Complaint that Frozen disclosed confidential and proprietary information about Alcor and its members, including information regarding baseball legend, and alleged Alcor member, Ted Williams.
 Continue Reading Court Refuses to Dismiss Tort and Defamation Claims Against Authors and Publisher of Book About Cryonics Organization

By Mark E. McGrath

In Vulcan Power Co. v. Munson, Index No. 600712/09 (Sup. Ct., NY County, Dec. 3, 2010), the Honorable Richard B. Lowe III granted summary judgment to Plaintiff Vulcan Power Company (“Vulcan”) against Defendants Soo Min Fay, Doug Frosh, George Marshall, Cal Mitchell and Tim Shea (collectively, the “Non-Munson Defendants”) on a declaratory judgment claim relating to an agreement that the Non-Munson Defendants executed but never reviewed.
 Continue Reading You Failed To Read An Agreement That You Executed? It Will Probably Be Enforceable

By Eric O’Connor

In Reit v. Yelp, Inc., Index No. 600555/10, — N.Y.S.2d —, 2010 WL 3490167 (Sup Ct, NY County, Sept. 2, 2010) (“Reit”), Plaintiff Reit, a dentist, sued Yelp!, Inc. (“Yelp”) and Michael S., an anonymous poster, for defamation, and Yelp alone for deceptive acts and practices under New York’s General Business Law (“NYGBL”) §§ 349 and 350. Justice Jane S. Solomon vacated a prior entry of a TRO and held that (i) plaintiff’s defamation claim against Yelp is barred by the Federal Communications Decency Act of 1996, 47 USC § 230 (the “CDA”), and (ii) plaintiff’s claims under NYGBL §§ 349 and 350 must also be dismissed because Yelp’s alleged manipulation of reviews was business conduct and not addressed to consumers and, thus, was not a deceptive act or practice.
 Continue Reading Yelp! Wins Dismissal of Claims for New York Deceptive Acts and Practices and Defamation Based upon Alleged Manipulation of User Reviews

By Sean J. Kirby

In Transfirst EPayment Services, Inc. v. Advanced Marketing Research, Ltd., et al., Index No. 602536/2008 (Sup. Ct. N.Y. County Sept. 29, 2010) (“Transfirst EPayment”), Justice Eileen Bransten granted the motion of plaintiff Transfirst EPayment Services, Inc. (“Transfirst”) for summary judgment on its breach of contract cause of action against defendants Advanced Marketing Research, Ltd. (“AMR”) and the Estate of Albert Dweck. In doing so, Justice Bransten applied New York law to Transfirst’s claims even though both of the agreements at issue contained choice of law clauses which mandated the application of Colorado law.
 Continue Reading Commercial Division Applies New York Law to Contract Dispute Even Though The Contract At Issue Contained A Colorado Choice-Of-Law Clause