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Giuseppe Chiara

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Giuseppe Chiara is a commercial litigator. Giuseppe advises employers in all aspects of employment litigation, arbitration, and mediation. He assists in resolving matters arising under Title VII, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Family and Medical Leave Act, the Fair Labor Standards Act, the New York Human Rights Law, and the New York Labor Law.  Additionally, Giuseppe drafts and reviews employee handbooks, personnel policies, employment agreements and separation agreements.

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Element5 Digital, Unsplash

Business Corporation Law § 619 (“BCL”) gives shareholders an “exclusive method . . . to test the validity of an election of a director.” Specifically, BCL § 619 states:

“Upon the petition of any shareholder aggrieved by an election, and upon notice to the persons declared elected thereat, the corporation and such other persons as the court may direct, the supreme court at a special term held within the judicial district where the office of the corporation is located shall forthwith hear the proofs and allegations of the parties, and confirm the election, order a new election, or take such other action as justice may require”

But under what circumstances can a court reverse an election? And what factors does a court consider? The case of Jazwinski v Justice Ct. Mut. Hous. Coop. is illustrative on these questions.Continue Reading It’s Time to CO-OPerate: Commercial Division Refuses to Overturn Election of Board of Directors

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Adam Michael Szuscik, Unsplash

As recently highlighted by my colleagues, the Commercial Division Advisory Council (“Advisory Council”) has been hard at work striving to implement and amend certain rules and regulations to enhance practice in the Commercial Division.  One recent proposal that may catch practitioners’ eyes is the potential addition of Commercial Division Rule 23:  a rule designed to govern the filing of amicus curiae briefs.

Amicus curiae or “friend of the court” briefs are used by non-parties, usually in federal appellate cases, who want to assist a court on issues in which they may have an interest.  Typically, amicus curiae briefs are allowed if they assist a court in analyzing an issue or argument that a party to the action is not able to fully and adequately present (see 22 NYCRR § 500.23 [a] [4]).

But amicus curiae brief filings in a state trial court, you say?  Yes, you read that right.  Despite the scarcity of such filings, the Advisory Council’s proposal attempts to introduce Rule 23 “given [the ComDiv’s] docket of sophisticated and often far-reaching commercial and business litigation.”Continue Reading You Got a Friend in Me: Commercial Division Seeks to Adopt New Rule Governing the Filing of Amicus Curiae Briefs

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Ray Shrewsberry, Unsplash

As my colleague, Matt Donovan, recently blogged, it is essential for litigants to “play[] nice in the litigation sandbox” or risk facing the ire of the Justices in the Commercial Division. Many litigants might think they are playing “nicely” by asserting “good cause” in their arguments. But what does it actually mean to have “good cause”? As illustrated by some recent decisions by Manhattan ComDiv Justice Robert Reed, a finding of good cause will depend on the circumstances, evidence, and respective law.

Case Spotlight #1: Designs by F.M.C. v. Unique First Ltd.  

In Designs, Justice Reed dealt with two motions seeking withdrawal as counsel. In assessing both motions, Justice Reed reiterated that an “attorney must demonstrate that good cause exists to end the relationship with the client.” Without showing good cause, a motion to withdraw will be denied.Continue Reading Good Cause or Gamesmanship: A Review of “Good Cause” in the Commercial Division

Back to school with a bullet journal
Estée Janssens, Unsplash

As summer winds down, ComDiv practitioners no doubt will soon be gearing up for the upcoming fall and winter months.  Time again to trade in your flip-flops for legal pads.  The year-end push will soon be upon us.   

As practitioners start to populate their calendars with various litigation deadlines, we take this opportunity to…

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Susan Q Yin, Unsplash

Most litigants associate injunctions as a remedy granted by a court to prevent a party from taking specific action. This is no surprise – as in most cases injunctions function to accomplish exactly that. However, in rare cases, courts will issue mandatory injunctions to force a party into taking specific action. Even though seldomly used, a mandatory injunction acts as an important judicial remedy to prevent irreparable harm by allowing courts to change the status quo.

The Dispute

The case of James Riv. Group Holdings, Ltd. v. Fleming Intermediate Holdings LLC illustrates a rare example of a court issuing a mandatory injunction. The case centers around the failed closing of the sale of Plaintiff’s reinsurance subsidiary to Defendant. In November 2023, the parties executed a Stock Purchase Agreement (“SPA”) concerning the sale of Plaintiff’s reinsurance subsidiary. As the closing approached, Plaintiff worked to fulfill its SPA obligations and complete all requisite pre-closing events. However, at the time of closing, Defendant failed to appear and instead sent a letter demanding further concessions to close – claiming that Plaintiff did not comply with its SPA obligations. Based on the failed closing, Plaintiff sought specific performance, seeking the Court’s intervention in forcing the Defendant to fulfill its obligations under the SPA and close on the transaction.Continue Reading Changing the Status Quo: Commercial Division Issues Rare Mandatory Injunction

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Noble Mitchell, Unsplash

Arbitration can be an effective alternative for parties seeking to avoid drawn-out and costly litigation. As a result, it has become common practice for parties to negotiate arbitration clauses into their agreements. However, parties consenting to arbitration should be prepared to abide by an arbitrator’s discretion, especially regarding discovery. If not, parties might be left…

Family parking
Sandy Millar, Unsplash

Misbehaving children?  Blame the parents, right? Not so in the corporate context, at least according to Manhattan Commercial Division Justice Robert R. Reed in a recent decision, Memorial Sloan Kettering Cancer Ctr., v. Bristol Myers Squibb Co., in which he found that parent corporations will not be automatically held liable for the contracts of…