In 1619-1625 Amsterdam Avenue, LLC v. Costa Casvikes, Case No. 652037/2022 (July 7, 2022), the court granted an unopposed summary judgment in lieu of complaint to a plaintiff property owner seeking payment under two guarantees of a commercial lease… Read more
Michael C. Rakower
Conversion Claims Fail Where Duplicative of Breach of Contract Claims
/ By:
Michael C. Rakower,
Travis Mock
In Westcon Grp., Inc. v. CCC Technologies, Inc., 7:19-cv-02303 (PMH) (S.D.N.Y. Sep. 12, 2022), the court granted summary judgment dismissing a conversion claim as duplicative of a cause of action for breach of contract… Read more
Petitioners Obtain Pre-Litigation Disclosure into the Owners of Twitter Accounts Used to Publish Defamatory Statements
/ By:
Michael C. Rakower,
Melissa Yang
Pre-action discovery is a specialized tool available in New York courts that can be used to preserve evidence or identify potential defendants. This tool was effectively used in DarkPulse, Inc. v. Twitter, Inc., Index No. 159015/2022, in New York Supreme Court, New York County… Read more
Claims Against International Cargo Broker Preempted by Montreal Convention
/ By:
Michael C. Rakower,
Travis Mock
In A.S.A.P Logistics, Ltd. v. UPS Supply Chain Solutions, Inc., 20-CV-4553 (E.D.N.Y. Sep. 19, 2022), the court dismissed breach of contract and tort claims as preempted by the Montreal Convention… Read more
SDNY Awards Rule 11 Sanctions for Complaint over Speculative Allegations
/ By:
Michael C. Rakower,
Travis Mock
In (RC) 2 Pharma Connect, LLC v. Mission Pharmacal Co., 1:21-cv-11096 (S.D.N.Y. Sep. 14, 2022), the district court imposed Rule 11 sanctions against plaintiff for filing pleadings based on speculative allegations of breaches of contract… Read more
Extrinsic evidence is inadmissible to contradict unambiguous contract terms; a party cannot anticipatorily breach a contract obligation that does not exist
/ By:
Michael C. Rakower,
Travis Mock
In Art Works Inc. v. Al-Hadid, Index No. 651267/2021 (N.Y. Sup. Ct., N.Y. County, May 10 2022), the New York Supreme Court held that a consignment agreement did not give an art gallery an ownership interest in an artist’s consigned work. The court also held that a party’s insistence on agreement to terms for a mediation did not constitute anticipatory breach of the contract’s mediation provision… Read more
Court Vacates Injunction Because Pre-Litigation Threats to Use Court Constitutes Unclean Hands
/ By:
Michael C. Rakower,
Melissa Yang
As illustrated in Eagle Advance, LLC v. Relik, 2022 NY Slip Op. 33006(U) (N.Y. Sup. Ct. Nassau Cnty 2022), injunctive relief is an equitable remedy – one that may be denied based on the movant’s unconscionable conduct… Read more
Alternative Form of Service Using Cryptocurrency Approved by Commercial Division
/ By:
Michael C. Rakower,
Melissa Yang
As a matter of first impression, the Commercial Division of the New York Supreme Court in LCX AG v. 1.274M U.S. Dollar Coin, 2022 WL 3585277 (N.Y. Sup. Ct. Aug. 21, 2022), authorized defendants to be served through an alternative form of service using cryptocurrency… Read more
Recent Second Circuit Decision Reminds Parties to Strictly Comply with ERISA’s Claims Procedure
/ By:
Michael C. Rakower,
Melissa Yang
The Second Circuit’s recent decision in McQuillin v. Hartford Life Insurance and Accident Ins. Co., 35 F.4th 416 (2d Cir. 2022), serves as a reminder that plan administrators are required to comply strictly with the claims procedure regulations set forth at ERISA § 503 and 29 C.F.R. § 2560.503-1… Read more
No Basis for Alternative Service Without Attempting Personal Service First
/ By:
Michael C. Rakower,
Melissa Yang
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
Online Reviews that Lowered Business’s Star Rating Were “Devious” But Not “Disparaging”
/ By:
Michael C. Rakower,
Travis Mock
In SA Luxury Expeditions, LLC v. Schleien, 22-CV-3825 (S.D.N.Y. Aug. 29, 2022), the court held that fake Trust Pilot reviews that reduced plaintiff’s overall star rating but were not explicitly negative did not constitute “disparaging” remarks as defined by a prior settlement agreement between the parties… Read more
Kicked Out of Federal Court: How Stateless Citizens Fall Outside of Diversity of Citizenship
/ By:
Michael C. Rakower,
Melissa Yang
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