Tag Archives: Recent Articles

Commercial Division Clarifies Limits of Choice of Law Provision in Indentures

By Sarah Aberg In the recent matter Wilmington Trust Natl. Assn. v. Vitro Automotriz, Index No. 652303/11 (N.Y. Sup. Dec. 5, 2011), Justice Bernard J. Fried of the Commercial Division addressed the obligations of guarantors of indentured notes. Regardless that the issuer of the notes had declared bankruptcy in Mexico, the guarantors, none of whom … Continue Reading

Wax This! NY Court Finds Restrictive Covenant In Hair Removal Specialist’s Agreement Unenforceable

By Eric Raphan and Jonathan Sokolowski In a recent decision outside the Commercial Division, Eyes of the World v. Boci, No. CV 46549/09 (N.Y. Civ. Ct. Aug. 19, 2011), Judge Margaret A. Chan held that a former employee’s restrictive covenant, prohibiting her from providing salon services to any client of her former employer for whom … Continue Reading

Defraud A Court? Compensatory Damages Are Okay But Not Punitive Damages

By Mark E. McGrath In CDR Créances S.A.S. v. Cohen, Index Nos. 109565/2003 and 600448/2006 (Sup. Ct., NY County, Aug. 25, 2011) (the “August Decision”), the Honorable O. Peter Sherwood granted the motions of plaintiff CDR Créances S.A.S. (“CDR”) for an order directing entry of judgment on CDR’s compensatory damages but refused to award CDR punitive … Continue Reading

A New Weapon Against Debtors! Attachment In Aid Of International Arbitration Is Permitted Even Where The Court Lacks Personal Jurisdiction Over The Debtor

By Sean J. Kirby In the matter of In re Sojitz Corporation v. Prithvi Information Solutions, Ltd, Index No. 602511/2009 (1st Dept. 2011) (“Sojitz Corp.”), the First Department, in a case of first impression, affirmed the decision of former Justice James A. Yates, and held that a creditor can attach assets in New York, for … Continue Reading

Partnership Pitfalls — Things to Keep in Mind When Filing a Notice of Pendency Involving Partnership Assets

By Sarah E. Aberg In Ostad v. Nehmadi, No. 650460/2010 (Sup. Ct., N.Y. Co., Apr. 11, 2011) (“Ostad”), Justice Bernard J. Fried reiterated the rule that a notice of pendency cannot be based on a claim asserting an interest in personal property, even where that personal property is an interest in a partnership whose sole … Continue Reading

Employers Cannot Bring Unjust Enrichment Claim For Unearned Pay Where Payments Are Governed By An Employment Contract

By Lisa Lewis On December 14, 2010, Justice James A. Yates of the New York Commercial Division issued a decision on a motion to dismiss in Mount Sinai School of Medicine v. Konstadinos A. Plestis, M.D., Index No. 601314/2010 (Sup. Ct., NY County, December 14, 2010). The decision addresses the issue of whether an employer can … Continue Reading

Are You A Foreign Company With A Relationship To A New York Company? It May Be Your Agent And Provide A Basis For Jurisdiction

By Kathryn J. Hines In Arbeeny v. Kennedy Executive Search, Index No. 105733/2007 (Sup. Ct., NY County, Jan. 14, 2011) ("Arbeeny"), Defendants Jason Kennedy ("Kennedy") and Kennedy Associates ("Kennedy Associates ") (collectively the "Moving Defendants") moved to dismiss on the basis of Plaintiff Daniel Arbeeny’s failure to serve the complaint in a timely manner pursuant … Continue Reading

“I Quit,” “No, You’re Fired!” New York Supreme Court Tells Employer to Think Twice Before Terminating Employees Without Setting Forth a Reason

By: Eric Raphan and Jonathan Sokolowski* Justice Melvin L. Schweitzer of the New York Commercial Division recently issued a decision in Greater Talent Network, Inc. v. Alec Melman, et. al., Index No. 650522/2010 (Sup. Ct., NY County, Dec. 22, 2010) that can have important ramifications for New York employers.  … Continue Reading

Holding A Note That References Another Document? It Still May Permit You To Obtain Summary Judgment in Lieu of Complaint

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 … 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: 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

Bank of America Avoids Multiple Liability By Filing Interpleader Complaint

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. … Continue Reading

Court Refuses to Dismiss Tort and Defamation Claims Against Authors and Publisher of Book About Cryonics Organization

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 … Continue Reading

You Failed To Read An Agreement That You Executed? It Will Probably Be Enforceable

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 … Continue Reading

Yelp! Wins Dismissal of Claims for New York Deceptive Acts and Practices and Defamation Based upon Alleged Manipulation of User Reviews

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 … Continue Reading

Commercial Division Applies New York Law to Contract Dispute Even Though The Contract At Issue Contained A Colorado Choice-Of-Law Clause

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 … Continue Reading

Provision Of Services Through Third-Party Websites May Subject Non-Domiciliaries To Personal Jurisdiction In New York

By Sarah E. Aberg In Robinson v. Intuit, Inc., et al., Index No. 101160/10 (Sup. Ct. NY County, Sept. 27, 2010) (“Intuit”), Justice Shirley Werner Kornreich held that a foreign corporation with no physical contacts with New York that had contracted to provide services in New York through the website of another party was nonetheless … Continue Reading

Brokerage Firm Can Recover $141 Million in Trading Losses from Insurers Because An “Associated Person” Is An Employee Under New York Law

By Jane Qin In New Hampshire Insurance Co., et al., v. MF Global, Inc., Index No. 601621/09 (Sup Ct, NY County, Oct. 5, 2010), Justice Bernard J. Fried granted summary judgment to MF Global, Inc. (“MF Global”), formerly one of the world’s largest non-bank futures brokerages, paving the way for it to collect on an … Continue Reading

Commercial Division Provides a Reminder to Practitioners that Failing to Plead All Elements of a Breach of Contact Action Will Result in Dismissal

By Sean Kirby It is a basic rule of pleading that in order to state a cause of action, all elements of a cause of action must be pled in a complaint. However, because “notice pleading” is all that is required, the temptation exists to be overly vague when pleading causes of action. In GS … Continue Reading

New York Remains Inhospitable To Claims For Attorneys’ Fees By Indemnified Parties, Absent Explicit Language In Indemnification Agreement To The Contrary

By Jane Qin In Gotham Partners, L.P. v. High River, L.P., Index No. 602582/04 (App. Div. 1st Dep’t July 20, 2010) (“Gotham Partners”), Judge Saxe held that the indemnification clause in a purchase contract did not permit a seller to recover attorneys’ fees from a buyer after the seller successfully sued for breach of contract, … Continue Reading

Domestic Service on Foreign Corporation’s Local Attorneys Deemed Proper Under Hague Convention And New York Law

By Lisa Lewis On July 23, 2010, Judge Bernard J. Fried granted a petition for a temporary restraining order and preliminary injunction in aid of arbitration. Invar International, Inc. v. Zorlu Enerji Elektrik Uretim Anonim Sirketi, Index No. 650628/2010 (Sup Ct, N.Y. County July 23, 2010). At issue was whether the petitioners’ service of process … Continue Reading

Be Careful What You Warrant and Represent In Your Deal Documents; You May Be Liable To A Sophisticated Party For Fraudulent Inducement Even When That Party Fails to Conduct Due Diligence Or Was On Notice Of Potential Problems

By Mark McGrath In MBIA Insurance Corporation v. Credit Suisse Securities (USA) LLC, DLJ Mortgage Capital, Inc., and Select Portfolio Servicing, Inc., Index No. 603751/2009 (Sup Ct, NY County, Aug. 9, 2010), Justice Shirley Werner Kornreich denied, in large part, the defendants’ motion to dismiss fraudulent inducement and breach of contract claims based on certain … Continue Reading
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