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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: Negligence

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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.

Negligence and Breach of Contract Claims Related to Superstorm Sandy Property Damage Were Properly Dismissed as against Individual Defendant Acting as an Agent of a Disclosed Principal and Entirely in the Course and Scope of his Employment

Posted in Breach of Contract, Negligence, Summary Judgment

In a decision dated May 27, 2015, the Appellate Division, Second Department affirmed an order from the Nassau County Commercial Division granting the individual defendant’s motion for summary judgment dismissing causes of action sounding in negligence and breach of contract.

Owner’s Appeal to Exculpatory Clause In Construction Contract Upheld Despite Contractor’s Invocation of Gross Negligence Exception

Posted in 3d Dept, Breach of Contract, Construction, Negligence, Summary Judgment

In a decision dated July 30, 2015, the Appellate Division, Third Department affirmed an order from the Albany County Commercial Division granting defendant-owner’s motion for summary judgment dismissing plaintiff-contractor’s action for delay damages in connection with the renovation of a state hospital.

Accountant Providing Non-Auditing Tax Services Still Has Professional and Fiduciary Duties to Inform Taxpayer of Questionable Financial Practices

Posted in Accounting, Banking, Breach of Contract, Breach of Fiduciary Duty, Demarest, Carolyn E., Fraud, Kings, Malpractice, Motion to Dismiss, Negligence

In a July 21, 2015, Kings County Commercial Division decision by Justice Demarest, the court denied in part and granted in part defendants’ motion to dismiss plaintiff’s amended complaint under CPLR 3211 (a) (1) and (7).

Art Consultant’s Motion to Dismiss Granted in Suit brought by Former Tennis Partner Turned Client

Posted in Breach of Contract, Breach of Fiduciary Duty, Demarest, Carolyn E., Fraud, Misrepresentation, Motion to Dismiss, Negligence, Queens

In a November 7, 2014 Commercial Division decision by Justice Demarest, the court granted the defendants’ motion to dismiss the complaint in its entirety. Saul, an attorney and business owner, met the individual defendant, Cahan, when the two were paired together as tennis partners. Through their tennis relationship, Cahan allegedly convinced Saul that he was… Continue Reading

Citigroup’s Motion to Dismiss RMBS-related Claims Held in Abeyance Pending Hearing on Foreign Statute of Limitations

Posted in CPLR 3211, Financial services, Fraud, Misrepresentation, Motion to Dismiss, Negligence, New York, Ramos, Charles E., Statute of Limitations

In a September 8, 2014 Commercial Division decision by Justice Ramos, the court held in abeyance the defendants’ motion to dismiss pending hearing. The case arose from yet another real estate mortgage backed securities (RMBS) transaction gone wrong, in this instance between the plaintiff Deutsche as the purchaser of $362 million of mortgage loan pass… Continue Reading

Partial Summary Judgment Granted, Dismissing 5 of 9 Investor Fraud Claims against MotherRock

Posted in Breach of Fiduciary Duty, Financial services, Fraud, Misrepresentation, Negligence, New York, Ramos, Charles E., Rescission, Summary Judgment

In a July 7, 2014 Commercial Division decision by Justice Ramos, the court granted in part and denied in part the defendants’ motion for summary judgment as to each of the plaintiffs’ causes of action. The plaintiffs sought to recover damages from losses allegedly suffered from their investments in the failed funds of the defendants,… 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

Fall-out from Madoff Ponzi Scheme: Gross Negligence and Breach of Fiduciary Duty Claims against Bank of New York Mellon Dismissed

Posted in Breach of Fiduciary Duty, Class Action, Documentary Evidence, Failure to State a Claim, Financial services, Fraud, Friedman, JSC, Marcy S., Gross Negligence, Motion to Dismiss, Negligence, New York, Uncategorized

In an April 15, 2014 Commercial Division decision by Justice Friedman, the court granted the defendant’s (“BNYM’s”) motion to dismiss the complaint. The plaintiffs, three law firms (the “Firms”), were assigned the voluntarily dismissed claims of three related investment funds (the “Rye Funds”), whose limited partners comprised two subclasses in a consolidated federal class action… Continue Reading

Business Judgment Rule and Lack of Damages Preclude Claim for Grossly Negligent Management of Hedge Fund

Posted in Bransten, Eileen, Financial services, Gross Negligence, Negligence, New York, Summary Judgment

In a November 12, 2013 Commercial Division decision by Justice Bransten, the court granted the defendants’ motion for summary judgment. The plaintiff alleged grossly negligent management of the defendant hedge fund in which the plaintiff had invested. The court held that summary judgment was warranted because: (1) the business judgment rule shielded the defendants’ management… Continue Reading

No Recovery in Tort Against Manufacturer of Plumbing Materials Under Economic Loss Doctrine

Posted in CPLR 2221, Erie, Motion to Dismiss, Negligence, Walker, Timothy J.

In a November 18, 2013 decision by Justice Walker, the Court granted Plaintiff’s motion to dismiss after granting leave to renew, based on a change in the law.  Plaintiff, owner of an apartment building located in Buffalo, alleged product liability and negligence claims against Defendant Oetiker, a manufacturer of plumbing materials used in a renovation… Continue Reading

Pro Golfer’s Quasi-Contract and Conversion Claims Survive PGA Tour’s Dismissal Motion as Court Finds Lack of Legal Recourse for Golfer under Terms of Tour’s Drug Policy

Posted in Arbitration, Bransten, Eileen, Breach of Fiduciary Duty, Conversion, CPLR 3211, Motion to Dismiss, Negligence, New York, Sports, Uncategorized

In a February 13, 2014, decision by Justice Bransten, the court granted in part and denied in part defendant PGA Tour’s (the “Tour’s”) motion to dismiss plaintiff Vijay Singh’s (“Singh’s”) action against the Tour for recklessly and inconsistently administering its anti-doping policy (the “Drug Policy”), subjecting Singh to ridicule and humiliation, and illegally holding Singh’s… 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

What is “Heating Oil?”: Putative Class Action Complaint filed against Hess Corp. Dismissed for Failure to Specify How Plaintiffs Were Harmed

Posted in Breach of Contract, Breach of Warranty, Class Action, Energy, GBL 349, Kornreich, Shirley Werner, Motion to Dismiss, Negligence, New York, Unjust Enrichment

In a December 2, 2013 decision by Justice Kornreich, the court granted the defendant Hess Corp.’s (“Hess”) motion to dismiss the putative class action complaint. The plaintiffs, limited partnerships that own apartment buildings in New York City, alleged that Hess adulterated fuel oil delivered to the plaintiffs’ respective buildings by providing a mixture of previously-used,… Continue Reading

Insurance Broker Potentially Liable for Failing to Place Policy, Insurers Not Liable Because No Policy In Place: The IDW Group, LLC v Levine Insurance Risk Management Services, Inc. et al.

Posted in Breach of Contract, Breach of Fiduciary Duty, Insurance, Kornreich, Shirley Werner, Negligence, New York, Summary Judgment

In an April 12, 2013 decision by Justice Kornreich, the Court granted partial summary judgment against an insurance broker on claims for breach of contract and negligence.  The court also granted summary judgment dismissing all claims against an insurer and insurance wholesaler and granted the insurer summary judgment on its cross-claims to recover defense costs… Continue Reading

Law School Graduates Again Lose Bid to Blame Their Alma Mater for their Employment Woes: Bevelacqua v Brooklyn Law School

Posted in Fraud, Kings, Legal, Misrepresentation, Motion to Dismiss, Negligence, Schmidt, David I.

In a decision dated April 22, 2013 by Justice Schmidt, a court once again rejected an attempt by law students to hold their alma mater responsible for their inability to secure the legal job of their dreams in this difficult economy.  As in so many cases around the country, the plaintiffs—all graduates of Brooklyn Law… Continue Reading

Leaning Tower of Pizza – Court Denies Pizzeria’s Motion for Summary Judgment Related to the Demolition of the Leaning Building it Leased: Motorino Williamsburg, Inc. v Rivera

Posted in CPLR 3212, Entertainment, Expert Reports, Kings, Negligence, Schmidt, David I., Summary Judgment

In a March 15, 2013 decision by Justice Schmidt, the court denied the plaintiff’s motion for summary judgment. The action arose out of a commercial lease entered by Motorino as lessee and Rivera as lessor, for the first floor of a four-floor mixed use building (“Building”); the top three floors each consisted of two residential… Continue Reading

In the Absence of Warranty of Title, Title Insurance Obligation Terminates Upon Conveyance: Washington Temple Church of God in Christ, Inc. v. Global Props. & Assoc., Inc.

Posted in Breach of Contract, Indemnification, Insurance Coverage, Kings, Negligence, Real estate, Rescission, Schmidt, David I., Summary Judgment

In an October 18, 2012 decision by Justice Schmidt, the Court granted the motion by Fourth-Party Defendant United General for summary judgment dismissing the Fourth–Party Complaint, concluding that United General did not have a duty to defend Third-Party Plaintiff Global Properties on title claims. The action arose out of a claim brought by Washington Temple… Continue Reading

Tortious Interference Claim Dismissed Where Plaintiff Failed to Allege But-For Causation: Doron Realty, Inc. v Thor Realty, LLC

Posted in Breach of Contract, Causation, CPLR 3211, Estoppel, Fraud, Kings, Motion to Dismiss, Real estate, Schmidt, David I., Statute of Limitations, Tortious Interference with Business Relations

In a September 13, 2012, decision by Justice Schmidt, the court granted defendants’ motion to dismiss plaintiff’s claims for fraud and tortious interference.  Plaintiff-broker sued defendants over a real estate deal concerning which plaintiff alleged he was entitled to a commission of over a million dollars.  Plaintiff claimed, among other things, that defendants repeatedly misrepresented… Continue Reading

Claim for Aiding and Abetting Fraud Stands, Others Dismissed Against Investment Management Company Involved in Ponzi Scheme: Winick v Van Zandt

Posted in Aiding and Abetting, Breach of Contract, Breach of Fiduciary Duty, Bucaria, Stephen A., Conversion, Financial services, Fraud, Misrepresentation, Motion to Dismiss, Nassau, Negligence, Unjust Enrichment

In an August 2, 2012 decision by Justice Bucaria, the court granted in part and denied in part the moving defendants’, IRA Services, Inc. and Ira Services Trust Company (the “IRA Defendants”) motion to dismiss. The action arose out of the plaintiffs’ investments in a Ponzi scheme directed by the non-moving defendant Robert Van Zandt…. Continue Reading