Securities/Corporations
Good Hill Master Fund, LP v Deutsche Bank AG, 2016 NY Misc LEXIS 2317 (NY Sup Ct, Feb. 3, 2016) aff’d 146 AD 3d 632 (2017). A non-jury trial alleging breach of ISDA swap agreements relating to securitization backed by $10.3 billion in residential mortgages.
Panattoni Dev. Co., Inc. v Scout Fund I-A, LP, aff’d 188 AD 3d 498 (1st Dept 2020). This case involved a claim for millions based on plaintiff’s role as investment manager for billion-dollar real estate joint venture.
Aba Dhabi Commercial Bank, P.J.S.C v. Credit Suisse Sec. (USA) LLL, 2011 NY Misc LEXIS 6930 (NY Sup Ct, NY County 2011), aff’d 114 AD 3d 432 (1st Dept 2014). In this case plaintiff alleged Credit Suisse and S& P fraudulently induced it to enter into a purported low risk collateral debt obligation.
In A&F Hamilton Hgts Cluster, Inc. v Urban Green Mgt, Inc., 2018 NY Misc LEXIS 5134 (NY Sup Ct Nov. 2, 2016) aff’d 186 AD 3d 409 (1st Dept 2020). Here, minority shareholder of a limited partnership sought to bring a double derivative claim on behalf of the limited partnership and asserted claim that an unsigned 2004 amendment to an earlier limited partnership agreement governs ownership of housing partnership.
Colton v Gibber, 2016 NY Misc LEXIS 1387 (NY Sup Ct, NY County 2016). This family business dispute involved half-sisters who had inherited equal shares in Manhattan apartment buildings valued at several hundred million dollars. Justice Sherwood supervised protracted litigation and negotiations that culminated in settlement of the case.
Schron v Grunstein, 36 Misc 3d 1238(A) (2012), aff’d 105 AD 3d 430 (1st Dept 2013). Following a non-jury trial for breach of contract and fraud, Justice Sherwood interpreted intricate agreements and analyzed complex financial transactions involved to determine ownership of several hundred nursing homes valued at over $1.5 billion.
Primus Pac. Partners LLP v Goldman Sachs Group, Inc., 2017 NY Misc LEXIS 4359(NY Sup Ct, NY County, 2017), affd 175 AD 3d 401 (1st Dept 2019). Breach of fiduciary duty case arising out a claim against defendant and a Goldman Sachs (Singapore) investment banker whose advice to the target of an unsolicited bid by a Malaysian bank with close ties to the family of the Malaysian Prime Minister was allegedly influenced by his relationship with the Prime Minster. The case was dismissed on grounds of forum non- conveniences in favor of Singapore or Malaysia.
Schroeder v. Cohen, 2017 NY Misc LEXIS 4516 (NY Sup Ct, NY County, November 14, 2017) aff’d 169 AD 3d 412 (1st Dept 2019) involving alleged misappropriation of trade secrets.
Linkable Networks, Inc. v. Mastercard, Inc., 2019 NY Misc LEXIS 8737 (NY Sup Ct, NY County September 12, 2019) aff’d 184 AD 3d 418 (1st Dept 2020) alleged misappropriation of trade secrets, unfair competition, misappropriation of ideas and unjust enrichment.
Getty Properties Corp. v. Lukoil Americas Corp., 2017 NY Misc LEXIS 3099 (NY Sup Ct, NY County, August 14, 2017). Defendant was required to remediate environmental contamination at hundreds of gas stations. The complaint alleged that in order to avoid responsibility for the cleanup, defendant transferred nominal ownership to another entity for $1 which just over two years later filed for bankruptcy, after the claw-back period under the Bankruptcy Code had expired. The Court held that defendants could not use the bankruptcy filing of its debtor affiliate to shield its own liability when defendant itself did not seek bankruptcy protection.
Class Actions
M/O Empire State Bldg Assoc. v LLC Participant Litigation, 2014 NY Misc LEXIS 3246 (NY Sup Ct, NY County 2014), aff’d 133 AD 3d 538 (1st Dept 2015). In this class action by minority “Participants” of the entity that owned the Empire State Building sought to block an initial public offering involving the iconic building.
Commercial Contracts
Ariflex Indus., Inc. v Pabco Constr. Corp., 2019 NY Misc 5731 was a construction case in which Justice Sherwood dismissed quasi-contract claims by subcontractor against the developer of the project for delay and extra work because the subject matter of the claim was governed by an enforceable written contract.
Avery Hall Invs. LLC v Concord Village Owners, Inc., 2019 NY Misc LEXIS 4295. In the case of a real estate transaction gone bad, the case was dismissed as the parties had not entered into an enforceable contract for sale of the property, the offeror did not state a claim for unjust enrichment and the alleged wrongful use of the plaintiff’s plans and research by an employee of the eventual purchaser who sat was on the board of directors of the seller, did not state a claim for tortious interference with contract.
In Neumann v. Sotheby’s, Inc., 209 NY Misc LEXIS 837, the issue was whether there was an enforceable contract between Herbert Neumann and Sotheby’s requiring Sotheby’s to obtain Herbert’s approval to sell valuable art from the Neumann Family Collection where the piece to be actioned, “Flesh and Spirit” by acclaimed “graffiti artist” Jean-Michael Basquiat, was being consigned by the executor of the estate that owned the art and if so, whether the executor could sell it through Sotheby’s.
Stonehill Capital Mgt. LLC v. Bank of The West, 2014 NY Misc LEXIS 1345, rev’d 127 AD 3d 429, rev’d 26 NY 3d 439 is among the many breach of contract cases involving complex commercial transactions decided by Justice Sherwood. In this case, Justice Sherwood rejected a claim that the parties did not have a binding agreement under the terms of a pre-negotiated auction sale of a syndicated loan portfolio because the signed agreement was “subject to” execution of a loan sale agreement. The Appellate Division reversed holding that the “subject to language…clearly expresses an intent not to be bound to the sale…”. The Court of Appeals reversed the Appellate Division. The court held that Justice Sherwood was correct in holding that the “subject to” language was not a clear expression that the parties intended not to be bound to consummate the sale.
Defamation
In Alcor Life Extension Foundation v Johnson, 43 Misc 3d 1225(A), (NY Sup Ct, NY County May 1, 2018), aff’d 136 AD 3d 464 (1st Dept 2016), the issue was whether a defamation claim against a book publisher should be judged by the actual malice standard of proof applicable to public figures. Justice Sherwood found that plaintiff which was in the business of freezing cadavers in the hope that medical science will advance sufficiently for the individuals to be brought back to life, had thrust itself into the limelight in order to bolster its public profile as the self-described “world leader” in the field of cryonics.
Eminent Domain/Valuation
Crystal Run Assoc., LLC v State of New York, 31 NYS 3d 920 (NY Court of Claims 2016) aff’d 167 AD 3d 764. Here, Justice Sherwood presided over non-jury trial to fix value of land taken by eminent domain.
Employment
In Creative Circle LLC v Norelle-Bortone, NY Misc LEXIS 2168, a former employer sued former employees and their new employer for breach of noncompetition and confidentiality agreements, unfair competition and other business torts.
In Veronis Suhler Stevenson Holdings, LLC v. Cole, 2015 NY Misc LEXIS 2302, the court granted summary judgment dismissing six of eight causes of actions brought by a private equity firm against senior investment professionals who resigned rather than sign a new employment agreement containing strict confidentiality and non-competition rules.
Insurance
Andy Warhol Foundation for the Visual Arts, Inc. v. Philadelphia Indemnity Ins. Co., 2012 NY Misc LEXIS 5487. Here the Court held that the “Professional Services Exclusion” endorsement to D&O policies relating to plaintiff’s reviews of art submitted to it for authentication as works created by Andy Warhol, did not apply and accordingly defendant was obligated to cover defense costs for claims alleging multiple causes of action arising out of defendants’ determinations that certain art were not created by him.
Sabre, Inc. v The Insurance Co. of the State of Pennsylvania, 2014 NY Misc LEXIS 3832, aff’d 149 AD 3d 589 (1st Dept 2017) is one of many insurance coverage cases over which Justice Sherwood presided. Here, the court held that the insurer had a duty to defend plaintiffs in the underlying actions and that a conflict of interest precluded the insurer from controlling the defense.
Alexander v. Starr Surplus Lines, Ins. Co., 2022 NY Misc LEXIS 461. In this case, the court granted the insured’s motion to declare that the Major Shareholder exclusion in the D&O policy applies only to major shareholders who held stock at the time the policy was issued. The court rejected the insurer’s argument that because this was a claims made policy, the exclusion did not apply to a shareholder who held notes at the time the policy was issued but had converted them by the time the claim was made.
Freedom Specialty Ins. Co. v. Platinum Mgt. (NY), LLC, 2018 NY Misc LEXIS 3891. Here the court held that an exclusion clause in the policy applicable to claims that involved any litigation or investigation that existed prior to a certain date did not apply and the insurer had a duty to defend or indemnify the directors and officers of defendants in the underlying prosecution charging them with conducting a Ponzi like scheme because the prior investigation cited by the insurer involved different conduct.
Malpractice
Red Zone, LLC v Calwalder, Wickersham & Taft LLP, 2018 NY LEXIS 2882. In a legal malpractice suit arising out of the acquisition of the Six Flags amusement park, the issue was whether the continuous representation doctrine applied to toll the statute of limitations.
Melcher v. Greenberg Traurig LLP, 2017 NY Misc LEXIS 3097 Op, aff’d as modified in the court’s discretion, 164 AD 3d 1171. In this case, brought under N.Y. Judiciary Law §487(1), the court limited plaintiff’s potential damages against an attorney for deceit on the court, to the excess of the legal costs incurred in the underlying action that were proximately caused by the lawyer’s deceit.
Binn v Muchnick Gotlieb & Gotlieb P.C., 2019 NY Misc LEXIS 928, aff’d 180 AD 3d 598. This legal malpractice case was dismissed as the documentary evidence showed plaintiffs were advised of and otherwise understood the terms of the transaction that resulted in loss of plaintiffs’ majority interest in a chain of airport spas.
Razinski v Katten Muchin Rosenman LLP, 2019 NY Misc LEXIS 6170. Holding that where proof showed that the property in the underlying case was sold, not mortgaged, the alleged failure of counsel to introduce evidence of released liens was not malpractice.
Glaubach v. Pricenwaterhouse Coopers, LLP, 2018 NY. Misc LEXIS 1792, denying a motions to amend complaint to assert (1) a derivative claim for accounting malpractice as barred by the statute of limitations and (2) a breach of fiduciary duty claim against the largest shareholder due to insufficient factual allegations that the shareholder actually dominated the board.
