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
Michael C. Rakower
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
Delaware Chancery Shifts $75 Million Contingent Attorneys’ Fee to Losing Party in Litigation over Busted Merger
/ By:
Michael C. Rakower,
Travis Mock
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
Defendant’s Failure to Answer Plaintiff’s Notice to Admit Results in Adverse Summary Judgment
/ By:
Michael C. Rakower,
Travis Mock
In Spin Capital v. Texas Medical Center Supply, LLC, Index. No. 130439-2021, 2022 N.Y. Slip Op. 32914 (N.Y. Sup. Ct., Monroe Cnty. Aug. 29, 2022), the court granted plaintiff’s motion for summary judgment after defendant failed to engage the discovery process… Read more
Pleading In the Alternative Does Not Justify Duplicative Claim for Unjust Enrichment
/ By:
Michael C. Rakower,
Travis Mock
In Harvey Public Adjuster, LLC v. Viet Media Agency, Index No. 522665/2022, 2022 NY Slip Op 32033(U) (Sup. Ct. Kings County Aug. 25, 2022), the court dismissed plaintiff’s cause of action for unjust enrichment as duplicative of its claim for breach of contract… Read more
New York Not Proper Forum for Action Against Foreign Defendant for Conduct Abroad
/ By:
Michael C. Rakower,
Travis Mock
In Kingstown Capital Mgmt. v. Vitek, 0:20-cv-03406 (2d Cir. Sep. 1, 2022), the Second Circuit affirmed the dismissal of a RICO suit filed in the Southern District of New York by a Delaware investment firm against foreign defendants for conduct that occurred outside the United States and was already the subject of a foreign proceeding under foreign law… Read more
Court of Appeals Venue Decision Calls into Question the Controlling Evidence of a Corporation’s Principal Place of Business
/ By:
Michael C. Rakower,
Travis Mock
In Lividini v. Goldstein, 37 NY3d 1047 [2021], the Court of Appeals held that defendant doctor had submitted evidence sufficient to establish that his “principal office” under CPLR 403(d) was in Westchester County, even though the doctor’s medical license registration listed a Bronx address. Id. at 1048-50… Read more
No Leave to Amend Following Appellate Division Dismissal and Remand for Entry of Judgment
/ By:
Michael C. Rakower,
Travis Mock
As illustrated in Favourite Ltd. v. Cico, 171 NYS3d 67 (1st Dept 2022), New York trial courts lack discretion to grant leave to amend a complaint that has been dismissed by the Appellate Division without leave to replead… Read more