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New York Commercial Division Case Compendium

A Searchable Database of Court Decisions Issued by New York’s Commercial Division

Developer’s $1 Billion Claim for Consequential Damages on a $200 Million Loan Obligation Offends “Commonsense” Rule of Construction under Kenford

Posted in Breach of Contract, Construction, Financial services, Friedman, JSC, Marcy S., Motion to Dismiss, New York

In a January 14, 2015, Commercial Division decision by Justice Friedman, the court granted defendant-lender’s motion to dismiss, at the pre-answer stage, plaintiff-borrower’s claim for consequential damages. Continue Reading

Other Decisions of Interest

Second Department Reverses Dismissal Based on Forum Selection Clause Where Parties and Agreement Lacked Any Connection to Selected Forum

Posted in 2d Dept, Breach of Contract, Motion to Dismiss, Wholesale

In a decision dated November 5, 2014, the Appellate Division, Second Department reversed an order from the Nassau County Commercial Division, which granted the defendants’ motion to dismiss pursuant to CPLR 3211 (a) (1). Continue Reading

Documentary Evidence Establishing Plaintiff-Shareholder Sold Interests in Plaintiff-Corporation Pre-Suit Bars Derivative Action

Posted in Demarest, Carolyn E., Kings, Motion to Dismiss, Preliminary Injunction, Real estate

In an April 29, 2015, Commercial Division decision by Justice Demarest, the court denied the plaintiff’s motion for a restraining order and preliminary injunction, vacated the previously ordered temporary restraining order, and granted the defendant’s motion to dismiss. Continue Reading

Application for Yellowstone Injunction Denied Due to Plaintiff’s Inability to Cure the Alleged Default for Failing to Maintain General Liability Insurance

Posted in Preliminary Injunction, Queens, Ritholtz

In a March 24, 2015, Commercial Division decision by Justice Ritholtz, the court denied the plaintiff-tenant’s application for a Yellowstone injunction for the purpose of enjoining the defendant-landlord from terminating the commercial lease and commencing summary proceedings.  Continue Reading

Parties’ Tolling Agreement Extending Statute of Limitations Indefinitely Deemed Unenforceable

Posted in Breach of Contract, Financial services, New York, Ramos, Charles E., Summary Judgment

In a March 3, 2015, Commercial Division decision by Justice Ramos, the court granted in part and denied in part defendants’ motion for summary judgment dismissing plaintiffs’ claim for breach of contract. Continue Reading

Court Denied Motion to Dismiss Based on Champerty Statute Where Assignee’s Intention to Bring Litigation By Proxy Was Unclear

Posted in Bransten, Eileen, Fraud, Motion to Dismiss, New York, Pharmaceutical, Shareholder Dispute, Unjust Enrichment

In a March 16, 2015, Commercial Division decision by Justice Bransten, the court denied defendants’ motion to dismiss the complaint in its entirety. This action was brought by Shareholder Representative Services, Inc. (“SRS”) on its own behalf, and on behalf of the former shareholders of Oriel Therapeutics, Inc. (“Oriel”), against Sandoz Inc., its affiliates and CEOs (collectively, “Defendants”). The action arose from the sale of Oriel to Sandoz Inc.


Prior to the instant action, SRS filed suit in the Southern District of New York on behalf of the former shareholders of Oriel against the same defendants in this action, and asserting the same claims. Continue Reading

Use of Interactive Website Accessible in New York Not Considered Doing or Transacting Business in New York for Purposes of Personal Jurisdiction

Posted in Fraud, Motion to Dismiss, Personal Jurisdiction, Pines, Emily, Real estate, Suffolk

In a March 27, 2015, Suffolk County Commercial Division decision by Justice Pines, the court granted defendant non-domiciliary’s motion to dismiss plaintiff’s complaint for lack of personal jurisdiction. Plaintiff brought fraud and negligent misrepresentation claims against a Florida professional association in connection with the sale of real estate in New York. Defendant moved to dismiss under CPLR 3211 (a) (8), contending that the New York court did not have jurisdiction over it. Continue Reading

Motions for Attorney Disqualification Denied Where Matters Forming Purported Conflict Not Substantially Related

Posted in Pines, Emily, Suffolk

In a February 23 2015, Commercial Division decision by Justice Pines, the court denied the two separate motions of the various defendants, which each sought to disqualify the attorneys appearing in a corporate dissolution action based on their representation of the same parties in a separate action involving the same parties in the Suffolk County Civil Division. The individual defendants Florence and Jon Baer sought to disqualify the plaintiff’s attorney (“Mulvehill”), while Jon’s corporate entity, the co-defendant, JDFB, sought to disqualify Florence’s attorney (“Dreisman”). In deciding both motions, the court applied the three-pronged test for attorney disqualification wherein the party seeking disqualification must prove: (1) the existence of a prior attorney-client relationship between the moving party and opposing counsel; (2) that the matters involved in both representations are substantially related; and (3) that the interests of the present client and former client are materially adverse. Continue Reading

Second Department Affirms Dismissal of Unjust Enrichment Counterclaim Due to Unclean Hands

Posted in 2d Dept, Breach of Contract, Real estate, Summary Judgment, Unjust Enrichment

In a decision dated July 23, 2014, the Appellate Division, Second Department affirmed an order from the Westchester County Commercial Division in this declaratory judgment action related to the legality and validity of a promissory note and related documents, granting the plaintiff-borrower’s motion for summary judgment dismissing the defendants-lenders’ counterclaim based on unjust enrichment. Continue Reading

City Barred from Seeking Medicaid Reimbursement from Trustee Where Claims Should Have Been Raised in Prior Accounting Proceeding

Posted in Breach of Contract, Breach of Fiduciary Duty, CPLR 2221, Fraud, Healthcare, Motion to Dismiss, New York, Ramos, Charles E.

In a March 27, 2015, Commercial Division decision by Justice Ramos, the court denied a motion by plaintiff NYC Dept. of Social Services to reargue defendant-trustee’s motion to dismiss for res judicata purposes.

The case arose out of an underlying medical malpractice action involving the treatment of defendant’s son at New York Presbyterian Hospital. The parties settled the malpractice action, under which NYPH agreed to indemnify defendant for any Medicaid payments sought by plaintiff in connection with his son’s treatment. Continue Reading