The pages of this blog are filled with cases pitting a minority owner of a closely-held business—most often a corporation or an LLC—against the majority. Books and records proceedings, derivative actions brought on behalf of the company, bids for dissolution, and cases seeking to enforce the terms of the owners’ agreement,
Commercial Division Says Plaintiffs Can’t Have Their Cake and Eat it Too When it Comes to Breach and Anticipatory Breach
When a party to a contract repudiates, the non-repudiating party is faced with two options: (1) treat the repudiation as an anticipatory breach, terminate the contract and seek damages; or (2) continue to treat the contract as valid and await the time for performance before bringing suit. In a recent decision from the Suffolk County
All You Need Is Love… And An Articulable Nexus Of Fraud
What can you do when the parties you are suing are effectively judgment-proof? Oftentimes, plaintiffs will try to go after a defendant’s family member or related entity. However, as we see in a recent case from the courtroom of Manhattan Commercial Division Justice Robert R. Reed, New York courts require more than just a
Apropos of the Recent Omicron Outbreak, Remote Depositions Are Here to Stay in New ComDiv Rule 37
Much ink has been spilled over the last couple of years, including here at New York Commercial Division Practice, on the topic of practicing law remotely in the COVID (and likely post-COVID) era. As we all brace for the coming wave of Omicron, which may well be the fastest spreading virus in human history,
Defendants Get Lit Up by the Court on the Fifth Day of Hanukkah
It’s not often that a lawsuit in the Commercial Division between sophisticated parties to an arm’s-length business transaction warrants a blistering rebuke of the parties by the Court. But on December 3, 2021, New York County Commercial Division Justice Andrew Borrok issued a scathing decision in a case entitled Extended CHAA Acquisition, LLC v Mahoney
Oops! They Did it Again: New York Courts Continue to Dismiss Lawsuits Based on Contractual Disclaimers
A few weeks ago, I blogged about the Arco Acquisitions, LLC, v Tiffany Plaza LLC et al. decision, in which Suffolk County Commercial Division Justice Elizabeth Hazlitt Emerson held that the plaintiff’s fraud claims were barred by the specific disclaimer provisions contained in the parties’ agreement to purchase commercial real property.
A recent decision from
Prejudgment Attachment Orders: High Stakes, Higher Burden
In expensive lawsuits involving fraud claims, the temptation of a defendant to play hide and seek with its assets can be high. To prevent this result, 
CPLR § 6201 provides a mechanism (i.e., prejudgment attachment order) to preserve such assets. However, in a recent decision from the Suffolk County Commercial Division, Justice Elizabeth H.
Fraud Claims Dismissed Based on the “As Is, Where Is, and With All Faults” Contractual Provision
Nobody likes fraud claims asserted against them. Thankfully for defendants, fraud claims are notoriously difficult to prove, and defendants often try to have these claims dismissed at the pleading stage.
An express disclaimer in a contract is often a popular avenue for litigants facing a fraud claim to move for dismissal. A recent Commercial Division
New Amendment to ComDiv Rule 3(a) Provides More Options to Litigants Seeking Alternative Dispute Resolution
In recent years, the New York court system has endorsed alternative dispute resolution (“ADR”) as a way to increase efficiency in the court system, making ADR presumptive in most civil cases. As a pioneer of efficiency, the Commercial Division has reinforced – through the adoption of multiple ADR-related rules and rule amendments – its “strong
Joint Venture Agreements: For Better or For Worse; In Profit or In Loss
Just like a bride and groom vow to join together for better or for worse, commercial parties joining together through a joint venture must make a similar promise to share in profits and losses. In a recent decision from the Suffolk County Commercial Division, Justice Elizabeth H. Emerson took a close look at the parties’