ay a stranger to an arbitration agreement compel arbitration against its signatories? According to the Second Department in Degraw Construction Group v McGowan Builders, Inc., 2017 NY Slip Op 05580 (2nd Dept July 12, 2017), the answer is “sometimes”: a plaintiff cannot avoid arbitration with a company by substituting the company’s employees as
The Doctrine of Equitable Recoupment Is A Litigation Shield – Not A Sword
The doctrine of equitable recoupment, which is codified in CPLR 203(d) permits a defendant to assert an otherwise untimely defense or counterclaim. The Appellate Division, First Department recently applied the doctrine in California Capital Equity, LLC v. IJKG, LLC, and highlighted a few caveats that a litigator should bear in mind when relying upon
It’s Sweet to be NutraSweet: Commercial Division Overturns Arbitration Award Entered in Favor of Would-be Seller of Aspartame Business to Iconic Artificial Sweetener Brand
As any seasoned commercial litigator knows, courts are generally loathe to overturn the independent decisions of arbitrators.
New York County Commercial Division Justice Charles E. Ramos recently examined the standard for doing so in Daesang Corp. v NutraSweet Co., a dispute arising from Daesang Corporation’s attempted $79,250,000 sale of its aspartame business to iconic
Check the Rules Redux
Several weeks ago, we reported on some recent updates to Manhattan Commercial Division Justice Bransten’s individual practice rules. New York commercial litigators should take note of some recent changes in the Queens County Commercial Division as well.
According to an official announcement from the Queens County Commercial Division, as of April 3, 2017, all Commercial
Motions For Leave to Renew: The Requirement Often Overlooked
A motion for leave to renew must be based upon new evidence or a change in the law that would change the prior determination and must contain a reasonable justification for failure to present such facts on the prior motion. If the new material proffered in the motion would not change the prior determination, a
Attorney Letter Terminating Engagement May Not Constitute “Documentary Evidence” to Support Dismissal of Malpractice Case
CPLR 3211(a)(1) provides for the dismissal of a claim so long as the defense is based upon “documentary evidence”. We’ve seen this used successfully in mortgage note cases, (e.g., Bronxville Knolls, Inc. v. Webster Town Center Partnership, [1st Dep’t 1995]), as well as lease litigation (e.g., 150 Broadway N.Y. Assocs., L.P. v. Bodner
Forum Selection Clause in Broker Agreement Insufficient to Confer Personal Jurisdiction
The Second Department recently handed down a harsh reminder of the importance of obtaining an executed broker’s agreement. Oral agreements for broker fees are apt to run afoul of the statute of frauds, and personal jurisdiction cannot be conferred by the mere insertion of a forum selection clause in the brokered sale agreement.
In Ausch
Don’t Forget To Calendar Your Deadlines – Especially The Statutory Ones!
If you commence an action by way of summons with notice, you must bear in mind the strict time limitations imposed by CPLR 3012(b). When the other party timely serves a written demand for a complaint, you have exactly twenty (20) days from service of the demand to serve the complaint. This is a strict,
Three New Rule Amendments Proposed by the Advisory Council
One aspect of the Commercial Division that makes it a highly desirable forum for litigators and litigants alike is its focus on the efficient administration of justice. The Commercial Division Advisory Council (the “Advisory Council”), established by New York’s Chief Judge to make recommendations to improve and enhance the Commercial Division, recently proposed three amendments
First Things First: Check the Rules!
You’re a commercial litigator in New York. You’ve just been brought in on a case pending in the Commercial Division before a particular Commercial Division judge. Or maybe you’ve just received an administrative bounce to a Commercial Division RJI Addendum, assigning your case to a particular Commercial Division judge sitting in the county where