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Extrinsic evidence is inadmissible to contradict unambiguous contract terms; a party cannot anticipatorily breach a contract obligation that does not exist

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

Recent Second Circuit Decision Reminds Parties to Strictly Comply with ERISA’s Claims Procedure

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

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”

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

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

Delaware Chancery Shifts $75 Million Contingent Attorneys’ Fee to Losing Party in Litigation over Busted Merger

In The Williams Companies, Inc. v. Energy Transfer LP,  C.A. No. 12168 & 12337, 2022 WL 3650176 (Del. Ch. Aug. 25, 2022), the court held that the fee shifting provision in the parties’ merger agreement permitted plaintiff’s counsel to add its contingent fee to its client’s liquidated damages award in litigation over a busted merger… Read more