In Robinson v. Synergy Alternative Capital, LLC, 652043/2020 (N.Y. Sup. Ct., N.Y. County), the court held that the statute of frauds did not preclude enforcement of an alleged oral agreement to pay a discretionary bonus over a period of several years, where the company could have paid the bonus within one year… Read more
Electronic Service on Defendants Governed by Hague Convention Permissible when Physical Addresses Are Not Reasonably Ascertainable
In The Kyjen Company, LLC v. The Individuals, Corporations, Limited Liability Companies, Partnerships, and Unincorporated Associations Identified on Schedule A to the Complaint, 1:23-cv-00612-JHP (S.D.N.Y.), the Court permitted electronic service of process on certain foreign defendants, even though such service generally would have been prohibited under international law… Read more
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
Rescission of Contract Inappropriate Where Breach Did Not Defeat the Purpose of the Parties’ Agreement
In Argutto v. J.P. Hunter Co., Inc., Case No. 623638/2018 (Sup. Ct. Suffolk County, Sep. 22, 2022), the court denied a motion for summary judgment seeking rescission of a contract where the defendant’s breach, though consequential, was not so fundamental as to defeat the purpose of the contract… Read more
New York Choice of Law Provision, Standing Alone, Does Not Confer Personal Jurisdiction
As illustrated in a decision by the New York Supreme Court in Five Star Logistics LLC v. Innovasian Cuisine Enters. Inc., Index No. 653357/2022 (N.Y. Sup. Ct. Nov. 22, 2022), a New York choice of law provision, standing alone, will not confer personal jurisdiction over a defendant… Read more
Summary Judgment in Lieu of Complaint Granted After Unopposed Showing of Default on Commercial Lease Guarantees
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
Conversion Claims Fail Where Duplicative of Breach of Contract Claims
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
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
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