Declaratory Judgment Claim Dismissed on Ripeness Grounds Where Too Many Contingent Events Exist for Plaintiff to Show Actual or Threatened Imminent Harm

The parties in Berardi v. Berardi, Case No. 22-CV-00159, are the owners of certain companies that provide public transportation services throughout New York State and other surrounding areas under various trade names including Trailways and Coach.  The parties entered into a post-nuptial agreement providing that upon dissolution of their marriage, plaintiff would own 49% of the companies and defendant would own 51%.  The parties were divorced in 2009… Read more

Turkey’s Conversion and Replevin Action to Recover 6,000-Year-Old Statute Denied for Failure to Show Ownership and for Sleeping on Rights

After a dispute arose over the ownership of the “Stargazer,” a six-thousand-year-old marble statuette, the Republic of Turkey commenced an action in the Southern District of New York seeking the return of Stargazer, alleging claims for conversion and replevin against auction house Christie’s, Inc., as the possessor, and Michael Steinhardt, as the owner.  According to Turkey, the figurine was unlawfully excavated and smuggled out of its borders.  Following an eight-day bench trial, the district court held that Turkey failed to establish by a preponderance of the evidence that it owned Stargazer, and that, in any event, the defendants established the equitable defense of laches.  Turkey appealed… Read more

Arbitration Clause Does Not Apply When Consideration of Agreement Is Not Necessary to Determine the Merits of Claims

The Federal Arbitration Act (the “FAA”) embodies a strong federal policy in favor of arbitration.  When the existence of an arbitration agreement is undisputed, any doubts as to whether a claim falls within the scope of that agreement should be resolved in favor of arbitrability.  Despite the broad reach of the FAA, a recent decision issued in Salgado v. NYC Medical Practice P.C. d/b/a Goals Aesthetics & Plastic Surgery, 22-CV-06910(LAK)(SN), 2022 WL 17974915 (S.D.N.Y. Dec. 28, 2022) illustrates that claims may bypass arbitration if the agreement providing for arbitration need not be considered to determine if such claims are meritorious… Read more

No Basis for Alternative Service Without Attempting Personal Service First

CPLR 308(5) provides that the Court may authorize an alternative form of service when the methods set forth in subsection (1), (2), and (4) are impracticable.  This requirement is illustrated in the recent decision of Suber v. Churchill Owners Corp., 2022 N.Y. Slip. Op. 32990(U) (N.Y. Sup. Ct. Sept. 7, 2022), where plaintiff filed a motion to serve certain defendants through email or social media.  The Court rejected the motion, concluding that plaintiff failed to provide any support that she engaged in prior attempts of personal service… Read more

Kicked Out of Federal Court: How Stateless Citizens Fall Outside of Diversity of Citizenship

Diversity of citizenship under 28 U.S.C. § 1332 is one way for parties to obtain entry into federal court.  When the case in controversy exceeds $75,000, federal courts have jurisdiction if the action is between “citizens of different States,” 28 U.S.C. § 1332(a)(1), or between “citizens of a State and citizens and or subjects of a foreign state,” 28 U.S.C. § 1332(a)(2).  In Jane Doe v. Grace Baptist Church, 2022 WL 1490486 (N.D.N.Y. May 11, 2022), the Northern District of New York addressed the application of these provisions to a party with dual citizenship in the U.S. and Greece and found that the court lacked subject matter jurisdiction… Read more