Contract provisions containing deadlines for giving notice of an event or occurrence, such as a claimed default, are key parts of commercial transactions. These provisions vary from contract to contract, often requiring different forms of notice and different timing requirements for notice to be given on different issues. Not surprisingly, notice provisions, and compliance with these provisions, are often a basis for disputes. Recently, the Delaware Court of Chancery undersc

In Mitsubishi Motors North America Inc. v. Grand Automotive, Inc. d/b/a Planet Mitsubishi , the United States District Court for the Eastern District of New York granted Mitsubishi Motors North America’s (“Mitsubishi”) request for a preliminary injunction pursuant to Rule 65 of the Federal Rules of Civil Procedure. Mitsubishi distributes its vehicles through a network of authorized dealerships that are authorized to “sell and provide services relating to…Mitsubishi motor veh

A client contacts you about a potential fraud claim. The client tells you that because of alleged false statements, she decided to hold her securities rather than sell them. She says that as result of the false statements she was deprived of the opportunity to sell at a higher price and, therefore, suffered damages when the securities declined upon the disclosure of the truth. Does she have a case? Recently, Justice Shirley Werner Kornreich of the Supreme Court, New County,

It is not uncommon for a person or entity holding money to be placed in a situation where multiple parties claim entitlement to the funds being held. Given the competing claims to the funds, the holder can wait for the parties to resolve their dispute or file an interpleader action asking the court to decide who should get the funds being held. An interpleader action “is an equitable proceeding” brought by a third party to have a court determine the ownership rights of multi

E.J.Brooks Company d/b/a TydenBrooks (“TydenBrooks” or “Plaintiff”) manufactures plastic security seals (“Seals”). When TydenBrooks acquired Stoffel Seals Corp. (“Stoffel”) it came to own Stoffel’s fully automated, and confidential, process for manufacturing Seals. Some TydenBrooks employees “defected to a rival manufacturer, Cambridge Security Seals (“CSS”), and brought with them TydenBrooks’ confidential Seal manufacturing process. TydenBrooks then commenced an action in

It is well settled that arbitration is a favored means of resolving disputes. See , e.g. , CPLR § 7501 (“A written agreement to submit any controversy . . . to arbitration is enforceable without regard to the justiciable character of the controversy and confers jurisdiction on the courts of the state to enforce it and to enter judgment on an award.”); Harris v. Shearson Hayden Stone, Inc. , 82 A.D. 2d 87, 91-93 (1st Dep’t), aff’d , 56 N.Y.2d 627 (1981) (“ his State favors and

In Shakespeare’s Romeo and Juliet , Juliet utters the oft quoted phrase, “parting is such sweet sorrow,” when saying goodnight to Romeo. While Juliet may have been upset that Romeo was leaving for the evening, the thought that she would see him again, and that she would be able to imagine their next meeting, made the parting “sweet”. The Decision and Order issued by the New York Supreme Court (Kornreich, J.) in Young Adult Institute, Inc., et al. v. The Corporate Source, In

One of the first things students are taught in law school is that, to be valid, a contract must be supported by consideration. In Reddy v. Mihos (April 17, 2017), the Appellate Division, First Department, analyzed the need for a guaranty to be supported by proper consideration. The plaintiff in Reddy was an experienced real estate investor. Defendant Mihos, an attorney, represented plaintiff in numerous real estate transactions over an extended period of time. Plaintiff

Recently, this Blog wrote about the law governing the theft or misappropriation of trade secrets. ( Here .) As noted in that post, with the exception of New York and Massachusetts, the protection of trade secrets is generally governed by the Uniform Trade Secrets Act (“UTSA”). In those two states, however, the protection of trade secrets is governed by the common law. Generally, trade secret owners have recourse only against the misappropriation of a trade secret. Misappropr

It is not uncommon for drafters of contracts and statutes to use the word “notwithstanding” to establish precedence over other provisions in the document. Cisneros v. Alpine Ridge Group , 508 U.S. 10, 18 (1993) (The “use of . . . a ‘notwithstanding’ clause … signals the drafter’s intention that the provisions of the ‘notwithstanding’ section override conflicting provisions of any other section.”). As such, the word “notwithstanding” is considered to be a trumping word that “

Sometimes in litigation, the facts get in the way of the desired results. Such was the case for the defendant in Age Group, Ltd. v. Martha Stewart Living Omnimedia, Inc. (April 12, 2018), in which the First Department affirmed Supreme Court’s denial of defendant’s motion for summary judgment seeking to dismiss plaintiff’s causes of action sounding in breach of contract and breach of the implied covenant of good faith and fair dealing. The facts are set forth in Supreme Cou

Commercial litigation involving mortgage-backed securities (MBS) cases can be complex and labor-intensive. Attorneys handling MBS cases often must follow intricate and multiple transactions involving many players, including securities issuers, securities underwriters, loan originators, credit-rating agencies, due-diligence service providers, and insurers. Litigators must review the numerous factors and issues in each of the MBS disputes to determine liability and damages. Be

On March 29, 2018, the New York Court of Appeals decided Kolchins v. Evolution Markets, Inc. , a case that addresses several important practice issues. Plaintiff in Kolchins was a commodity trader who, in 2005, joined defendant as a commodity broker. In 2006, and again in 2009, the parties entered into three-year employment agreements. The 2009 agreement, which had an end date of August 31, 2012, provided for various forms of compensation including a base salary, a “sign

What is a Trade Secret? At its core, a trade secret is information of commercial value. It can be anything, such as a formula, strategy, device, process, or recipe. It is not generally known to others and is not readily ascertainable by proper means. Since a trade secret is a thing of commercial value, it gives the owner an advantage over competitors who do not know the secret and cannot use it to compete for business. New York Law vs. The UTSA At the state level, the protec

Simply stated, the “Voluntary Payment Doctrine” bars recovery of payments voluntarily made with full knowledge of the facts, and in the absence of fraud or material mistake of fact or law. Dubrow v. Herman & Beinin , 157 A.D.3d 620 (1 st Dep’t 2018) (citation and quotation marks omitted). The Doctrine has been around for quite some time. In 1898, the First Department recognized that “ voluntary payment of money under a claim of right cannot in general be recovered back.

A mechanic’s lien is an encumbrance on the title to the real property. Contractors and subcontractors, among others (collectively, “Contractors”), whose work improves real property, are entitled to place a mechanic’s lien on the real property so improved to secure the payment of the amounts due to them. Oftentimes, mechanic’s liens are problematic for real property owners. For example, the filing of such a lien could be an event of default under a mortgage or a lease. Unde

“Timing is everything”, it is often said. A fine illustration of this often-uttered phrase can be found in Reverend C.T. Walker Housing Dev. Fund Corp. v. City of New York (E.D.N.Y. March 5, 2018), an appeal from the United States Bankruptcy Court for the Eastern District of New York. The Reverend C.T. Walker Housing Dev. Fund Corp. (“Walker”) owned property on 135 th Street in New York City (the “Property”). The New York City Department of Housing Preservation and Devel

The parties in Stravroulakis v. Pelakanos , 58 Misc.3d 1221(A) (Sup. Ct. N.Y. Co. Feb. 13, 2018), are the owners of Bareburger. The majority owners attempted to oust a shareholder by improper means and the court thought otherwise. The oversimplified facts of Stravroulakis are as follows. Plaintiff and some of his buddies (the “Owners”) owned a dive bar in Brooklyn called Sputnik, in which they started to sell organic hamburgers. The hamburgers became so popular that the

In Dormitory Authority of the State of New York v. Samson Construction Co. (Feb. 15, 2018) , the New York Court of Appeals was called on to address, inter alia, the question of whether the City of New York “is an intended third-party beneficiary of the architectural services contract between…Dormitory Authority of the State of New York (DASNY) and…Perkins Eastman Architects, P.C. (Perkins)….” The facts of Dormitory are relatively simple and typical of many construction proje

The New York Court of Appeals rules that a litigant must produce information from her Facebook account notwithstanding her chosen “privacy” settings. The plaintiff in Forman v. Henkin (February 13, 2018) was injured after falling from a horse owned by defendant and alleges she suffered “spinal and traumatic brain injuries resulting in cognitive deficits, memory loss, difficulties with written and oral communication, and social isolation.” During the litigation, plaintiff r