A critical inquiry to be considered at the outset of any litigation is whether the party seeking relief is, in fact, a proper party to seek the court’s adjudication of the dispute. This concept is known as “standing,” which is a threshold determination to be made by the court, the absence of which warrants dismissal
NY Practice Tip: Protecting Your Client Against an Improper Notice to Admit
The CPLR 3123 notice to admit can be a useful device in litigation. Its primary purpose is to expedite a trial by eliminating the necessity of proving a “readily admittable fact” or matter not in dispute. But, as efficient as it sounds, the notice to admit is a limited device, and may only be used
Court explores the balance between a lawyer’s obligation to investigate the facts, and a lawyer’s reliance on what the client chooses to disclose or not disclose
Pursuant to Part 130 , attorneys are obligated to undertake an investigation of a case. But is an attorney responsible for ignorance of facts which the client neglected to disclose? “No,” says the Commercial Division.
In a recent decision by Justice Andrew Borrok, the Commercial Division discussed this very issue. In Morgan and Mendel
The Commercial Division Continues to Rule Against Businesses Seeking Financial Relief Amidst COVID-19 Shutdowns
We all hoped ringing in the New Year would mean leaving some of the hardships from the COVID-19 pandemic behind in 2020. However, in just two short months, businesses struggling with rent and other financial obligations due to COVID-19 restrictions are getting little to no relief from the Commercial Division. 
You first read Madeline Greenblatt’s
The Secret’s Out: COVID-19 May Not Excuse Commercial Rent Obligations
The lingerie brand Victoria’s Secret (“VS”) has struggled in recent years. VS’ overtly sexy aesthetic has failed to keep up with shifting consumer tastes towards comfort and gender and size inclusivity. In 2019, VS canceled its marquee fashion show, which had run annually for 23 years, showcasing supermodels in VS’ trademark angel wings strutting the
Work Performed in the Forum State May Be Insufficient to Establish Personal Jurisdiction Over Out-Of-State Defendants
Recently, Justice James Hudson issued a decision testing the limits of New York’s Long Arm Statute. The Court was tasked with determining whether personal jurisdiction exists over an out-of-state defendant, based on a claim arising from an out-of-state contract, but where a portion of the work under the contract was performed in New York.
In
Withholding Discovery Based On Common Interest Privilege: Can You Prove “Reasonably Anticipated” Litigation?
“Reasonably anticipated litigation” is a necessary element you need to show to benefit from the common interest privilege in your attempt to withhold certain documents already shared with a third-party during a pending suit in New York – but, when does this privilege apply and what does “reasonably anticipated litigation” actually mean?
Recently, Justice Andrew
Proximate Cause In Breach Of Contract Actions: Is Loss A Foreseeable Consequence Of Circumstances Created By The Breaching Party?
Proximate cause is a necessary element in tort law, but also applies to claims of breach of commercial contract. 
In a recent decision by Justice Barry R. Ostrager in MUFG Union Bank, N.A. v. Axos Bank et al., No. 652474/2019, 2020 N.Y. Slip Op. 51101(U) (Sup. Ct., New York County Sept. 25, 2020), the Commercial Division of the Supreme Court, New York County addressed, among other things, the issue of whether a defendant’s breach was a proximate cause of plaintiff’s damages in denying one defendant’s motion for summary judgment seeking to dismiss plaintiff’s breach of contract claim.
The parties to the action are MUFG Union Bank, N.A. (“Union”), Epiq Systems, Inc. (“Epiq”), and Axos Bank, Axos Fiduciary Services, Axos Nevada, LLC, and Seller Sub, LLC (collectively, “Axos”).
On or about September 27, 2012, Union and Epiq entered into a Joint Services Agreement (“JSA”), effective October 1, 2012, as amended. Pursuant to the JSA, Union and Epiq agreed, among other things, “to jointly promote their products and services to bankruptcy and insolvency professionals and also fiduciary types as may be agreed upon by the parties on a case-by-case basis,” which professional and fiduciary types were deemed “Joint Clients”. Specifically, Union provided deposit services to bankruptcy trustee customers and Epiq provided software services to bankruptcy trustee customers. The JSA expressly restricted Union and Epiq’s ability to assign the JSA or transfer Joint Client relationships or accounts without the other’s prior written consent. Notwithstanding this restriction, Epiq, without consent of Union, decided to sell its software business to Axos. In order to circumvent the anti-assignment provision in the JSA, Epiq established Seller Sub, LLC (“Seller Sub”), identified as “a special purpose entity wholly owned by Epiq and allegedly created for the sole purpose of effectuating the transfer of the JSA to Axos without Union’s consent.” Epiq formed Seller Sub one day before entering into a fifh amendment of the JSA with Union. Epiq then transferred the JSA to Seller Sub. Axos then acquired Seller Sub with the JSA. But Epiq directly transferred its software business to Axos. Thereafter, Axos terminated the JSA with Union and the action ensued.
Continue Reading Proximate Cause In Breach Of Contract Actions: Is Loss A Foreseeable Consequence Of Circumstances Created By The Breaching Party?
Unconscionability Defense Fails to Raise Issue of Fact – Legal Woes for the Whistleblower who Turned Down his Award
I
n 2015, our colleagues in the white-collar criminal defense bar braced for the impact of a memorandum penned by then Deputy Attorney General Sally Yates. The Yates Memo encouraged both federal prosecutors and civil enforcement attorneys to make increased efforts to hold culpable individuals accountable for corporate misconduct.
The Yates Memo embodied the precept
NY Courts Tackle New Issues in a Post-COVID Court: Modification of Pre-COVID Court Orders
As
New York courts reopen and the mandatory stay-at-home order is lifted, what remains unclear is how the numerous Executive Orders issued by Governor Andrew M. Cuomo during the COVID-19 pandemic will affect individuals and businesses who, based on the economic effects of the crisis, may no longer be able to abide by previously issued