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

Category Archives: Discovery

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A 21st Century Litigant’s Credo: I Shall Preserve ESI, or Sanctions Will Follow – Court Strikes Affirmative Defense and Awards Costs and Fees for Defendant’s Grossly Negligent Failure to Preserve ESI

Posted in Attorneys' Fees, Bransten, Eileen, Discovery, Financial services

In a December 7, 2015 Commercial Division decision by Justice Bransten, the court granted the plaintiff’s motion for spoliation sanctions due to the defendant’s failure to preserve electronically stored information (“ESI”).

Adversity Not Dispositive in Applying Fiduciary Exception to Attorney-Client Privilege and Must Be Determined Upon In Camera Review

Posted in 1st Dept, Breach of Fiduciary Duty, Discovery, Limited Liability Companies, Shareholder Dispute

In a decision dated October 8, 2015, the Appellate Division, First Department reversed an order from the New York County Commercial Division, which granted a motion by a 70% majority investor in a real-estate development company (plaintiff-respondent) to compel the production of certain purportedly-privileged documents in connection with the development of “the world’s largest showroom… Continue Reading

Second Department Reverses Supreme Court’s Denial of Defendants’ Motion to Dismiss, Finding That Plaintiff Failed to Comply With Court Directive

Posted in 2d Dept, Attorneys' Fees, Breach of Contract, Discovery, Motion to Dismiss, Negligence, Summary Judgment

In a decision dated November 12, 2015, the Appellate Division, Second Department reversed an order from the Queens County Supreme Court, which denied the defendants’ motion to dismiss the plaintiff’s complaint.

Note to Guarantor Defending against an Alleged Failure to Pay upon Default: Don’t Question the Authenticity of Your Signature and Also Admit You Signed the Guaranty in the Same Affirmation in Opposition

Posted in Arbitration, Attorneys' Fees, Breach of Contract, Demarest, Carolyn E., Discovery, Guaranty, Kings, Limited Liability Companies, Summary Judgment

In an April 15, 2015, Commercial Division decision by Justice Demarest, the court granted plaintiff-lender’s motion for summary judgment based on defendant-guarantor’s failure to repay a loan upon the borrower’s default under a related promissory note.

Jurisdictional Discovery Needed Over Allegations of Rival Firm’s Looting of Bankrupt Real Estate Brokerage

Posted in Discovery, Friedman, JSC, Marcy S., Motion to Dismiss, New York, Personal Jurisdiction, Real estate

In a December 15, 2014 Commercial Division decision by Justice Friedman, the court granted in part the motion to dismiss of nine of eleven defendants for lack of personal jurisdiction, severed the surviving claims, and referred the issue of jurisdictional discovery of the two remaining defendants to a Special Referee.

Court Discerns the “Economic Reality” of Loan Distribution, Looks at “Substance” over “Form” on Summary Judgment

Posted in Banking, Breach of Contract, Declaratory Judgment, Discovery, New York, Sherwood, O. Peter, Summary Judgment

In an August 20, 2014 Commercial Division decision by Justice Sherwood, the court granted defendant and counterclaim plaintiff Credit Suisse’s motion for summary judgment, dismissing the claim against it.  Credit Suisse sold plaintiff Sumitomo Mitsui Banking Corporation (“Sumitomo”) an interest in a syndicated bridge loan in 2006.  It was restructured in May 2009.  At the… Continue Reading

Court Denies Plaintiff’s Motion to Substitute his Wholly Owned LLC as Plaintiff in Attorney Misconduct Suit against Greenberg Traurig

Posted in Discovery, Legal, New York, Sherwood, O. Peter

In an August 19, 2014 Commercial Division decision by Justice Sherwood, the court denied the plaintiff’s motion, pursuant to CPLR 1018, to substitute his wholly owned limited liability company (the “LLC”) for himself as plaintiff. The plaintiff commenced the action against Greenberg Traurig (“GT”) alleging misconduct pursuant to New York Judiciary Law § 487. GT… Continue Reading

DHL’s Fraudulent Inducement Counterclaim against Worldwide Express Operations, LLC Franchisees Dismissed for Failure to State a Cause of Action

Posted in CPLR 3211, Failure to State a Claim, Fraud, Misrepresentation, Motion to Compel Discovery, Motion to Dismiss, New York, Ramos, Charles E., Transportation

In a July 1, 2014 Commercial Division decision by Justice Ramos, the court granted the plaintiffs’ motion to dismiss the defendant DHL’s counterclaim for fraudulent inducement. The plaintiffs, all franchisees of Worldwide Express Operations, LLC (“Worldwide”), a former reseller of DHL’s shipping services, argued that DHL failed to state a cause of action. The plaintiffs… Continue Reading

Issues of Fact and Ongoing Bankruptcy Proceeding Preclude Summary Judgment Dismissing Claims of Oral Partnership Agreement

Posted in Demarest, Carolyn E., Discovery, Kings, Motion to Dismiss, Summary Judgment, Transportation

In an August 6, 2014 Commercial Division decision by Justice Demarest, the court partially granted a motion to dismiss and denied a motion for summary judgment dismissing other claims.  The litigation arose from the operation of a vehicle maintenance business.  Plaintiff alleged that he entered into an oral partnership with one of the defendants for… Continue Reading

Plaintiff Awarded Summary Judgment on Legal Malpractice Claim Against Cadwalader

Posted in Discovery, Legal Malpractice, Malpractice, Negligence, New York, Schweitzer, Melvin L., Statute of Limitations, Summary Judgment

In an August 27, 2013 Commercial Division decision by Justice Schweitzer, the court granted Plaintiff Red Zone’s motion for summary judgment on claims for legal malpractice, and denied Defendant Cadwalader’s cross-motion for summary judgment on the same claim.  Cadwalader advised Red Zone concerning Red Zone’s dealings with investment bank UBS regarding a potential acquisition of… Continue Reading

Court Allows County Water Authority to Proceed on Theory of “Market Share Liability” in Products Case

Posted in CPLR 3211, Discovery, Failure to State a Claim, Manufacturing, Motion to Dismiss, Negligence, Pines, Emily, Real estate, Suffolk

In a June 16, 2014, Suffolk County Commercial Division decision by Justice Pines, the court denied defendants’ motion to dismiss plaintiff’s complaint for failure to state a cause of action. Plaintiff-county water authority brought a products-liability action against the defendant-manufacturers of a chemical used primarily in dry-cleaning machines, alleging groundwater contamination caused by the seepage… Continue Reading

Vijay Singh’s Motion to Compel Disclosure in Deer Antler Spray Suit Granted in Part and Denied in Part

Posted in Arbitration, Bransten, Eileen, Breach of Fiduciary Duty, Conversion, Discovery, Motion to Compel Discovery, Motion to Dismiss, Negligence, New York, Sports

In a June 12, 2014 Commercial Division decision by Justice Bransten, the court granted in part and denied in part the plaintiff’s motion to compel disclosure of certain documents and materials, and responses to certain interrogatories. This case, which was previously written about on this blog in a March 25, 2014 post by Matthew D…. Continue Reading

MBS Claims Not Barred By German Statute of Limitations

Posted in Banking, CPLR 3211, Discovery, Financial services, Fraud, Misrepresentation, Motion to Dismiss, New York, Rescission, Schweitzer, Melvin L., Statute of Limitations

In a November 26, 2013 Commercial Division decision by Justice Schweitzer, the Court partially granted a motion to dismiss claims arising from a residential mortgage backed securities offering.  The plaintiff brought claims sounding in fraud, fraudulent concealment, negligent misrepresentation, and aiding and abetting fraud.  Defendants moved to dismiss for failure to state a cause of… Continue Reading

Motion for Summary Judgment in Foreclosure Action Granted, Defendant Church’s Myriad Defenses Fail

Posted in Demarest, Carolyn E., Discovery, Kings, Summary Judgment

In a May 5, 2014 Commercial Division decision by Justice Demarest, the Court granted the summary judgment motion by Plaintiff, a private lender, in a foreclosure action against Defendant, a non-profit corporation that operates a church, and its bishop, another Defendant.  Plaintiff lent Defendants $400,000 secured by a mortgage on property in Brooklyn.  Defendants defaulted… Continue Reading

Lessons in Discovery—from Directions Not To Answer in Depositions to Document Production: Freidman v Fayenson

Posted in Bransten, Eileen, Depositions, Discovery, Malpractice, Motion to Compel Discovery, New York, Real estate

In a December 4, 2013 decision by Justice Bransten, the Commercial Division was faced with myriad discovery disputes, ranging from the refusal to produce an insurance policy to directions not to answer questions posed at a deposition.  In a 29-page decision, Justice Bransten carefully navigated and decided each of the discovery issues presented, giving clear… Continue Reading

Discovery Must Be Produced In Electronic Form With Metadata

Posted in CPLR 3124, Discovery, New York, Oing, Jeffrey K., Pharmaceutical

In a January 24, 2014 decision by Justice Oing, the Court granted a motion under CPLR 3124 and required a party to produce its discovery in a text-searchable format for review in Concordance (a document review platform) with associated metadata.  The Court found persuasive the fact that the requesting party’s discovery demands sought production in… Continue Reading

Property Owner’s Negligence and Malpractice Claims Against Site Plan Preparers Dismissed on Summary Judgment, are Time-Barred

Posted in Construction, Discovery, Estoppel, Fraud, Kings, Malpractice, Misrepresentation, Motion to Dismiss, Negligence, Real estate, Schmidt, David I., Statute of Limitations, Summary Judgment, Uncategorized

In a January 24, 2014 decision by Justice Schmidt, the court granted in part defendants’ motion for summary judgment dismissing the complaint, which concerned the preparation and approval of a site plan for the development of a vacant property in Staten Island.  In September 2004, plaintiff Willis Ave. Development LLC purchased and closed on a property… Continue Reading

Merely Walking Around Job Site to Make Sure It Was “Safe” Insufficient to Extend Time to File Mechanics’ Lien

Posted in Construction, CPLR 3212, Demarest, Carolyn E., Discovery, Kings, Statute of Limitations, Summary Judgment

In a January 15, 2014 decision by Justice Demarest, the court granted summary judgment dismissing a lien foreclosure action, finding that the original lien was not timely filed.  The litigation involved the construction of a condominium in Brooklyn, New York. The original parties to the construction project were not parties to the litigation.  The builder… Continue Reading

Plaintiffs Fail to Adequately Plead Demand Futility for Derivative Action On Behalf of GE

Posted in Bransten, Eileen, CPLR 3211, Demand Futility Doctrine, Derivative Actions, Discovery, Documentary Evidence, Financial services, Manufacturing, Motion to Dismiss, New York, Summary Judgment

In a November 7, 2013 decision by Justice Bransten the court dismissed a consolidated shareholders derivative action brought in the name of General Electric.  The court found that the plaintiffs did not sufficiently particularize their allegations that the directors who decided not to pursue the litigation lacked independence or were not disinterested.  The court further… Continue Reading

For Profit Tribal Business Not Entitled to Tribal Sovereign Immunity

Posted in Banking, Bransten, Eileen, Discovery, Financial services, Motion to Dismiss, New York, Unjust Enrichment

In an October 22, 2013 decision by Justice Bransten, the court found that a for-profit entity owned by an Indian tribe was not entitled to sovereign immunity for allegedly breaching a contract to sell a loan. The defendant is a Delaware LLC owned by an entity formed under the Indian Reorganization Act of 1934 (the… Continue Reading

Plaintiff Permitted to Conduct Jurisdictional Discovery on Whether Claim Arose from Attorney-Client Relationship for Purposes of Long-Arm Jurisdiction: Rational Strategies Fund v Hill

Posted in CPLR 3211, Discovery, Financial services, Long Arm Jurisdiction, Motion to Dismiss, New York, Personal Jurisdiction, Schweitzer, Melvin L.

In a June 7, 2013, decision by Justice Schweitzer, the court denied defendants’ motion to dismiss the complaint for lack of personal jurisdiction and forum non conveniens.  Plaintiff-shareholder brought suit against defendant-directors asserting a single cause of action for failure to disclose material facts in connection with a merger.  In opposition to defendants’ motion, plaintiff… Continue Reading

Plaintiff’s Tortious Interference Claim Deemed “Balderdash” and Its Motion for Leave to Amend a “Dilatory Litigation Tactic”: 501 Fifth Ave. Co., LLC v Yoga Sutra, LLC

Posted in Breach of Contract, CPLR 3025, CPLR 3212, Discovery, Fraudulent Conveyance, Fraudulent Transfer, Kornreich, Shirley Werner, Motion for Leave to Amend, New York, Real estate, Summary Judgment

In a June 6, 2013, decision by Justice Kornreich, the court granted defendants’ motion for summary judgment dismissing the complaint and denied plaintiff’s motion for leave to amend.  Plaintiff-landlord sued to recover rent on a commercial lease in connection with a yoga studio, alleging tortious interference with respect to the subject lease against defendants, the… Continue Reading

Court Strikes Answer After Defendant Destroys Emails and Submits False Affidavits: Hollander v Faber

Posted in CPLR 3126, Discovery, New York, Ramos, Charles E.

In a December 12, 2012, decision by Justice Ramos, the court granted plaintiff’s motion to strike defendant’s answer and enter a default judgment of liability against him.  In a case fraught with discovery “malfeasance” on the part of defendant, including the issuance of sanctions by the court on multiple occasions, plaintiff ultimately moved to strike… Continue Reading