In Miller v. Brunner, the Appellate Division, Second Department spoke clearly (again) about how to move to dismiss on the defense of release. In a case arising out of the Commercial Division in Kings County (Hon. Sylvia G. Ash), a question on appeal was whether the defense of release is considered “documentary
Second Department Allows Untimely Claims to Relate Back to Action Brought By Wrong Plaintiff
Can substitution of a new plaintiff who has proper standing cause “surprise or prejudice” to a defendant after the statute of limitations would have expired, such that leave to file an amended complaint should be denied? Not if the two plaintiffs are the same person switching from their individual to representative capacity, held the Second
Court Confirms Arbitration Award Against Respondent Who Failed to Check Her Mail
A recent decision out of the Suffolk County Commercial Division underscores the importance of staying on top of your mail if you plan on leaving New York for an extended period of time. Last week, in Matter of New Brunswick Theological Seminary v Van Dyke, 2018 NY Slip Op 51204(U), Justice Emerson confirmed
Court cannot search the record on claims not the subject of the motion, or can it?
The Appellate Division, in a short but direct ruling, reminds the bench and bar that courts cannot simply “search the record” and grant summary judgment on claims or defenses that are not the subject of the motion. It did so this time in the context of an LLC judicial dissolution action pending in the Commercial
Personal Jurisdiction Over Japanese Airplane Entities Does Not Fly in New York County
In a recent decision, Justice Scarpulla of the New York County Commercial Division declined to exercise personal jurisdiction over several Japanese entities, and even imposed sanctions on the plaintiff for attempting to relitigate its already-decided claims in New York.
Defendant ANA Aircraft Technics, Co., Ltd. (“ANA Technics”) maintained a fleet of airplanes owned and
Universal Obtains More Than It Bargained For in Dealings with Cash Money Records: Potential Liability for Unpaid Drake Profits
For those unfamiliar with what today’s young kids are listening to, Aubrey “Drake” Graham is one of the most commercially-successful recording artists of all time, with multiple multiple-platinum records to his credit. For frame of reference, Drake’s recent album “Scorpion,” on its first day of release, was streamed over 300 million times on Apple Music
Proposed Amendment to Commercial Division Rules Aims to Make Mediation More Effective
Commercial Division litigators often hope that mediation will lead to a negotiated settlement, but their expectation – based on their prior experience – is that it will not. In this sense, mediation seems to have significant unrealized potential as a settlement tool in the Commercial Division.
A new proposal of the ADR Committee of
In Pari Delicto Defense Can be Raised for the First Time on Appeal, But is No Defense to a Fraudulent Conveyance
Failure to raise an issue at the trial court level is generally considered a waiver of that issue on appeal. Notwithstanding, state courts recognize certain circumstances when raising an issue for the first time on appeal does not prejudice the adversary because the legal issue is “apparent on the face of the record.” 26th LS
Bill “Doe” (friend/refused last name), Possible Squatter, Accepts Substitute Service
In the opening scene of the 2008 “stoner action comedy” Pineapple Express, as Eddy Grant’s “Electric Avenue” pumps out of the car’s stereo speakers, the film’s protagonist, Dale Denton (Seth Rogen), in various disguises serves subpoenas on unsuspecting defendants. A real-world outtake from this film recently played out in the New York County Supreme Court,
First Department Rejects Kesha’s Proposed Counterclaims Seeking to Terminate Contracts With Dr. Luke
In a recent decision handed down just a couple of days ago, the Appellate Division, First Department affirmed Justice Kornreich’s denial of singer and songwriter Kesha Sebert’s (“Kesha”) motion for leave to file second amended counterclaims, meaning Kesha will not be released from her recording contracts with producer Lukasz Gottwald, also known as Dr. Luke