In an April 18, 2011 decision by Justice Driscoll the court vacated a temporary restraining order and denied a preliminary injunction enjoining and restraining the defendant from making statements about plaintiff’s allegedly improper business practices. The defendant did not submit any opposition to the motion, in part because he was incarcerated in jail in California. The… Continue Reading
Monthly Archives: July 2011
Court Holds Class Action Challenging Bank’s Practices Regarding Gift Card Fees Was Not Preempted by Federal Law: Sheinkin v Simon Prop. Group, Inc.
Posted in Banking Act, Class Action, Federal Preemption, Industry: retail, Justice Warshawsky, Ira B., Motion to Dismiss, NassauIn a June 28, 2011 decision by Justice Warshawsky, the court denied the defendants’ motion to dismiss a class action which alleged that the defendants engaged in deception and wrongful business practices when it charged monthly “dormancy fees” and an “account closure fee” for purchased gift cards. The defendants specifically asserted that the causes of… Continue Reading
Court Finds Fact Issues Regarding Engineer’s Negligence on Construction Project and Allows Third-Party Indemnification Claims to Go Forward: RAE Realty Holdings, LLC v 643 E. 11th St. Realty, LLC
Posted in Common Law Indemnification, Contractual Indemnification, Contribution, CPLR 3212, Impleader, Indemnification, Industry: construction, Justice Bransten, Eileen, Negligence, New York, Summary JudgmentIn a June 20, 2011, decision by Justice Bransten, the court addressed a third-party defendant’s motion for summary judgment dismissing indemnification claims brought by an owner and general contractor in connection with damages to an adjacent structure caused by a failure to properly excavate and underpin the structure during construction of a commercial condominium building. Third-party… Continue Reading
Motions for Summary Judgment Granted in Part, Denied in Part, in Action Brought by Hospital Against Insurer to Recover for Breach of Contract for Premiums Drawn Down from Letter of Credit: Lenox Hill Hosp. v. Amer. Int’l Group, Inc.
Posted in Breach of Contract, CPLR 3126, Fiduciary Duty, Insurance Coverage, Justice Fried, Bernard J., Line Of Credit, Motion for Leave to Amend, New York, Summary JudgmentIn a June 7, 2011 decision by Justice Fried, the Court granted in part and denied in part cross-motions for summary judgment. Defendant Lexington issued two consecutive excess healthcare professional liability insurance policies with plaintiff as the first named insured. The Court concluded that plaintiff and Lexington entered into two contracts, i.e., the 2004 and 2005… Continue Reading
Court Declares Obligation to Reinsure under the Plain Meaning of Unambiguous Contract Terms: CIFG Assur. N. Am., Inc. v Assured Guar. Corp.
Posted in Breach of Contract, Contract Interpretation, CPLR 3212, Industry: insurance, Insurance Coverage, Justice Kapnick, Barbara R., New York, Reinsurance, Summary JudgmentIn a June 14, 2011, decision by Justice Kapnick, the court granted plaintiff-insurer’s motion for summary judgment declaring that, under a reinsurance agreement between the parties, defendant-reinsurer was obligated to reinsure plaintiff’s insured in connection with a financial guarantee insurance policy. A schedule attached to the parties’ reinsurance agreement itemized some 1300 insurance policies covered under… Continue Reading
Court Denies Law Firm’s Request for the Return of Privileged Files Produced in Discovery: South Shore Neurologic Assoc., P.C. v Ruskin Moscou Faltischeck, P.C.
Posted in Attorney-Client Privilege, Discovery, Industry: legal, Justice Pines, Emily, Protective Order, SuffolkIn a July 12, 2011 decision by Justice Pines, the court denied the defendant law firm’s motion for an order directing the plaintiff to return documents produced to it which were purportedly privileged and to enter a protective order. The court rejected the firm’s argument that it had produced documents pursuant to a protective order… Continue Reading
Arbitrator Empowered to Award Attorneys’ Fees If Both Parties Demand Them: Matter of Bear Sterns & Co., Inc. v. International Capital & Mgt. Co., Inc.
Posted in Arbitration, Arbitration Award, Attorneys' Fees, Confirming Arbitration Award, Industry: financial services, Justice Fried, Bernard J., New YorkIn a June 16, 2011 decision by Justice Fried, the court affirmed an arbitration award that granted over $300,000 in attorneys’ fees to the respondent in a FINRA arbitration. The parties litigated in the arbitration a number of claims for, among other things, breach of contract, negligence, promissory estoppels, fraud, breach of fiduciary duty, and negligent… Continue Reading
Court Finds Plaintiff Corporation is Beyond the Reach of the BCL and Permits Action Seeking Prejudgment Attachment to Proceed: Top Apex Enters. Ltd. v Cayton
Posted in BCL 1312, CPLR 6201, Foreign Corporation, Justice Emerson, Elizabeth, Motion to Dismiss, Prejudgment Attachment, SuffolkIn a June 28, 2011 decision by Justice Emerson, the court denied the defendants’ motion to dismiss the complaint pursuant to BCL §1312(a) which bars an action against a foreign corporation doing business in New York without authority. The plaintiff sought an order of prejudgment attachment pursuant to CPLR § 6201, alleging that the defendants… Continue Reading
Collateral Estoppel From Divorce Arbitration Undermines Subsequent Claim of Ownership: Glazer v Webster et al
Posted in Arbitration, Arbitration Award, Collateral Estoppel, Estoppel, Industry: healthcare, Justice Demarest, Carolyn E., Kings, Summary JudgmentIn a June 23, 2011 decision by Justice Demarest the court granted part of a motion for partial summary judgment, finding that a decision from a divorce arbitration barred subsequent attempts to litigate ownership in a number of nursing homes. During plaintiff’s marriage with one of the defendants he and his spouse invested in a number… Continue Reading
Fact Questions Concerning Industry-Specific Practices Cannot Be Determined in the Context of a Motion to Dismiss: Deloitte (Cayman) Corporate Recovery Servs., LTD v Sandalwood Dept Fund A, LP
Posted in Breach of Contract, Choice of Law, Contract Interpretation, CPLR 3211, Implied Covenant of Good Faith and Fair Dealing, Industry: financial services, Justice Kornreich, Shirley Werner, Money Had and Received, Motion to Dismiss, New York, Unjust EnrichmentIn a May 6, 2011, decision by Justice Kornreich, the court granted in part and denied in part defendant-hedge fund partners’ motion to dismiss plaintiff-fund liquidator’s action for breach of a limited partnership agreement (LPA) among defendants and the fund. In light of “serious economic concerns” resulting from the Lehman Brothers bankruptcy in September 2008, the… Continue Reading
Madoff Losses May Be Covered Under Insurance Policy, United States Fire Insurance Company v. Nine Third FEF Investments LLC et al.
Posted in Industry: insurance, Justice Lowe, Richard B. III, New York, Rescission, Summary JudgmentIn a June 16, 2011 decision by Justice Lowe the court found there were a number of issues of fact which precluded awarding summary judgment to an insurer declaring that it was not obligated to cover Madoff loses. The insurer used a multi-pronged attack arguing that the insurance policy was void and should be rescinded, that… Continue Reading
Court Finds Operating Agreement Ambiguous as to Plaintiff’s Membership in LLC and Denies Access to Company’s Books and Records: Matter of Tornambene v Wu
Posted in Ambiguity, Books and Records, Breach of Contract, Breach of Fiduciary Duty, Contract Interpretation, CPLR 6301, Dissolution, Industry: Transportation, Justice Driscoll, Timothy, Limited Liability Companies, LLCL 1102, Material Breach, Nassau, Operating Agreement, Order to Show Cause, Preliminary Injunction, Restrictive Covenant, Standing, Temporary Restraining OrderIn an April 19, 2011, decision by Justice Driscoll, the court denied plaintiff’s order to show cause in connection with his demand for the production of books and records of a limited liability company under LLCL § 1102. Defendant-majority member opposed plaintiff’s motion, arguing that plaintiff lacked standing to bring the action because he was not… Continue Reading
Court Rules Wu-Tang Clan Member’s Summary Judgment Motion is Premature: Coles v Wu-Tang Prod., Inc.
Posted in Industry: entertainment, Justice Scarpulla, Saliann, New York, Summary JudgmentIn a June 20, 2011 decision in a case originating in the commercial division (Lowe, J.) and on remand from the First Department, Justice Saliann Scarpulla denied the motion for summary judgment by Dennis Coles, a/k/a “Ghostface Killah”, a member of the Wu-Tang Clan, which sought unpaid royalties and unpaid damages stemming from an earlier… Continue Reading