As New York moves beyond the spring shutdown, Yankwitt LLP is working at full throttle to protect our clients’ interests. And even though times are tough, we have had momentous occasions to celebrate, including the firm’s 11th anniversary this past July, officially starting our second decade of serving clients throughout New York, which we do zealously every day. Below are additional firm highlights from the past several months. Enjoy and please, stay safe.
An Award-Winning Year
Yankwitt LLP is proud to be recognized for its dedication to its clients, the legal profession, and the Westchester community. Six Yankwitt LLP attorneys were named to Super Lawyers and Rising Stars, and Managing Partner Russell Yankwitt was named to Best Lawyers in America® in commercial litigation, was honored by the Westchester County Business Journal as a 2020 C-Suite Award winner and was named an Elite Boutique Trailblazer by the National Law Journal.
In a move to improve the technological functionality of electronic submissions to the New York State Supreme Court, Commercial Division, the Administrative Judge recently issued Administrative Order 133/20, which modifies Commercial Division Rule 6 – “Form of Papers.” The rule change goes into effect on November 16, 2020.
Judge Briccetti Grants Defendants’ Motion to Dismiss for Lack of Subject Matter Jurisdiction in Clean Water Act Citizen-Suit Case
In Kovach v. United States, No. 19-cv-7065, 2020 WL 4003366 (S.D.N.Y. Jul. 15, 2020), the plaintiff, a former New York Air National Guardsman, brought a Clean Water Act citizen suit against, inter alia, Major General Paul A. Weaver Jr., the United States Air Force, and the New York Air National Guard. The plaintiff claimed he suffered ongoing health problems due to “[Perfluorooctane Sulfonate (PFOS)] ingestion from the base water supply” as a result of an alleged intentional dumping incident at a military base on which he was stationed in the summer of 1990. The defendants moved to dismiss for lack of subject matter jurisdiction, and specifically argued that the plaintiff’s injuries were not redressable. Judge Vincent Briccetti granted the motion without leave for the plaintiff to file an amended complaint, as the court determined the amendment would be futile.
Contractual Limitations on Remedies Will Be Enforced on Motions to Dismiss, Unless the Seller Does Not Provide a Remedy at All
Sellers of goods often will include an exclusive remedy provision in their purchase agreements, which (1) limits the seller’s liability to a buyer to either repair or replace the purchased goods, or refund the purchase price, and (2) waives all other available remedies. When a dispute between a seller and buyer arises, how certain can a seller be that its exclusive remedies provision will be enforced, and how early in the litigation can such enforcement be sought? According to one recent decision, the answers to these questions may lie in how the parties’ dispute unfolds pre-litigation. Unless a plaintiff can plausibly allege that he pursued and was refused every remedy available under the contract, an exclusive remedy provision that limits him to a repair or refund will be enforced on a motion to dismiss.
Judge Román Grants Defendant’s Motion to Dismiss Amended Complaint in Gender Discrimination and Retaliation Case
In Lora v. Centralized Management Service, Inc., No. 18-cv-4253, 2020 WL 3173025 (S.D.N.Y. June 12, 2020), the plaintiff, a former executive administrative assistant, brought a gender discrimination and retaliation action against five entities she claimed were her former employers under Title VII, the New York State Human Rights Law (NYSHRL) and the New York City Human Rights Law (NYCHRL). The defendants moved to dismiss on the ground they did not qualify as employers under the relevant federal or state statutes. Judge Nelson Román granted the motion with leave for the plaintiff to file an amended complaint.
When embarking on litigation, a common question clients ask is: Can I recover my attorneys’ fees? Short of a contractual fee-shifting provision, the answer is almost invariably, “No.” A potentially valuable exception exists, however, in New York insurance coverage cases.
A motion for summary judgment in lieu of a complaint under CPLR 3213 is a powerful tool in a New York litigator’s arsenal. Clients seeking to recover on a promissory note or similar instrument “for the payment of money only” can bypass expensive, time-consuming pleading and discovery stages and file a motion for summary judgment based on the note or contract. But plaintiffs opting to go the CPLR 3213 route must be certain that the debtor’s promise to pay was unconditional. Evidence that a promissory note was only used to secure the debtor’s obligation or that repayment was conditional can delay an otherwise streamlined procedure to recover monies owed.
As litigators, we not only represent our clients in court, we counsel them on litigation risk mitigation. In that capacity, we are often asked to review proposed commercial contracts for potential pitfalls from a litigators perspective. It can be difficult to convince clients of the importance of well-drafted provisions on liability, statutes of limitation, forums and trials, when all parties are getting along and looking forward to a profitable future. A recent decision out of the Southern District of New York is a warning to parties wearing rose-colored glasses. So long as a judge is satisfied that a party entered into an agreement knowingly, voluntarily, and intentionally, the court will uphold litigation critical provisions such as waiving a jury trial and limiting liability.
Filing for bankruptcy often brings pending litigation to a screeching halt as supreme and district court judges are loathed to interfere with the automatic bankruptcy stay. For a party looking to slow play litigation, bankruptcy can be a boon, but in multi-party litigation you are trying to advance, it can be extremely frustrating to wait. Now enter CPLR 603, which enables a judge to sever the debtor and its claims where the remaining claims and defendants do not implicate property of the bankrupt estate. A recent decision in the Commercial Division of the Westchester County Supreme Court analyzed the propriety of severance in this scenario and provided important guidelines for balancing the competing interests involved in such applications.
The doctrine of res judicata, or claim preclusion, can be a powerful defense when attempting a second bite at the proverbial apple; it precludes a litigant from rehashing a claim with the same parties that was decided on the merits in a prior proceeding. Ordinarily, res judicata even applies when a party fails to appear in a case and the claims are resolved by default judgment. A recent case in the Southern District of New York, however, illustrates the limits of res judicata as applied to default judgments arising out of a massive fraud scheme.
Nearly every disaster sees its fair share of associated post-mortem insurance coverage litigation. The COVID-19 pandemic is no exception. The wave of litigation already has begun and will follow suit in New York once the courts allow attorneys to file new cases.
In the next part of our series on proactive and practical steps that small businesses can take to improve business operations and productivity, Yankwitt LLP examines another expected wave of litigation – insurance coverage for business interruption losses – arising out of the COVID-19 shutdown. Taking the following steps now can mean the difference between a viable coverage claim and a missed opportunity when the New York courts reopen and lawsuits commence.
In the next part our series on proactive and practical steps that small businesses can take to improve business operations and productivity, Yankwitt LLP attorneys turn their focus to the expected wave of contract-based litigation arising out of the COVID-19 shutdown. Taking the time to review existing agreements now from both offensive and defensive perspectives can position you to be well-prepared to bring and defend claims that may be brought when business returns to normal.
In Part Three of our series on proactive and practical steps that small businesses can take to improve business operations and productivity, Yankwitt LLP attorneys have several tips on updating and upgrading your technology and data-related processes during this slowdown. Making these small changes now can avoid unnecessary and expensive litigation when business returns to normal.
As part of our series on proactive and practical steps small businesses can take to improve their operations, the attorneys at Yankwitt LLP have provided strategies to optimize employment and employee benefits practices. While large companies typically have multi-unit Human Resources Departments, small businesses often rely on a single office manager to handle everything related to employment and benefits, plus much more. As such, projects that support best practices often get pushed to the bottom of the list. Below are practical suggestions to tackle during this time of pause that can help to improve productivity and mitigate litigation in the future.
The government-issued shutdown has everyone, especially small businesses, managing unprecedented levels of stress. Instead of “hunkering down” and waiting for the pandemic to pass, this pause can be an opportunity to proactively improve your business practices. Over the next several weeks, Yankwitt LLP will be providing a series of articles, “Proactive Through the Pause: A Litigator’s Guide to Mitigate Risk for Small Businesses.”
In Palmer/Kane LLC v. Benchmark Education Co. LLC, 18-CV-9369, 2020 WL 85469 (S.D.N.Y. Jan. 6, 2020), the plaintiff, a stock photography production company, brought copyright infringement claims against the defendant educational content provider for alleged improper use of licensed photographs under three copyright registrations. The defendant filed a motion to dismiss the complaint alleging that the plaintiff failed to plead adequately valid copyright status for the photographs and the claims were time-barred. Judge Nelson Román granted the motion in part and denied it in part, dismissing the claims as to all but seven allegedly infringing images.
In 24 Capital Funding, LLC v. Peters Broadcasting Engineering, Inc., No. 19-cv-4929, 2019 WL 5294841 (S.D.N.Y. Oct. 18, 2019), the plaintiff filed two confessions of judgment against the defendants in New York State Supreme Court, Putnam County arising out of the defendants’ breaches of a series of financing agreements. The defendants sought to remove the case to the Southern District of New York based on diversity jurisdiction and the plaintiff moved to remand back to state court. Finding federal courts lack subject matter jurisdiction over confession of judgment proceedings, Judge Nelson Román agreed with the plaintiff and remanded the action back to New York State Supreme Court.
2019 was a year to remember for Yankwitt LLP. We celebrated a milestone 10-year anniversary, achieved significant wins for our clients, expanded our practices with two new accomplished attorneys, and won several industry awards.
In Nemes v. Dick’s Sporting Goods, Inc., No. 17-cv-1688, 2019 WL 3982212 (S.D.N.Y. Aug. 23, 2019), the plaintiffs, a husband and wife, brought products liability claims against defendants Dick’s Sporting Goods, Inc. and Barnett Outdoors, LLC after Mrs. Nemes partially amputated her thumb while shooting a Barnett Lady Raptor FX crossbow. Judge Nelson Román granted in part and denied in part the parties’ motions to preclude the testimony of their respective experts.
August and September were big months for Yankwitt LLP and our attorneys. In August, managing partner Russell Yankwitt was named to the 2020 Best Lawyers in America® list in the area of Commercial Litigation, and just a month later, Russ and partner Kathy Marks were named to the 2019 New York Metro Super Lawyers list in the Business Litigation category. This is the Russ’ ninth and Kathy’s seventh year on the list. Russ also was honored as one of Super Lawyers’ Top 25 Lawyers in Westchester and one of the Top 100 Lawyers in New York. Counsel made his debut appearance on the 2019 New York Metro Super Lawyers Rising Stars list also in the Business Litigation category. The Super Lawyers list recognizes no more than 5 percent of attorneys in each state.
The first half of 2019 saw a bolstering of the ranks throughout the firm with the addition of several new attorneys – two in White Plains and one in New Jersey. In February, Former U.S. Attorney Benjamin Allee joined Yankwitt LLP as a partner, and launched the firm’s White Collar Criminal Defense practice. Ben, who recently was honored with the Department of Justice’s 2019 Director’s Award, also represents clients in breach of contract cases, employment litigation, shareholder disputes and fraud investigations. The addition of Michael Reed, a former federal law clerk and premier NYC law firm alum, to Yankwitt LLP in May strengthened the firm’s federal commercial litigation and employment litigation practices. And, Brett Feldman joined our New Jersey office as a trial attorney, working closely with seasoned litigator George Godfrey III on a full range of litigation matters for hotels, casinos and restaurants throughout the Garden State.
In Waterkeeper Alliance, Inc. v. Spirit of Utah Wilderness, Inc., No. 10-CV-1136, 2019 WL 1517579 (S.D.N.Y. Apr. 5, 2019), Judge Nelson Román sanctioned environmentalist Jeffrey Salt for failing to comply with the Court’s order that Salt renounce his use of the Plaintiff’s Waterkeeper trademarks. Plaintiff Waterkeeper Alliance, Inc. is an environmental organization dedicated to the preservation of the United States’ waterways. Defendant Spirit of Utah Wilderness (“SUW”) and its principal Jeffrey Salt became members of Waterkeeper’s organization and received a license from Waterkeeper to use the name “Great Salt Lakekeeper.” Salt subsequently was convicted of assault, after which Waterkeeper revoked SUW’s license and membership.
In Franze v. Bimbo Foods Bakeries Distribution, LLC, 7:17-cv-03556(NSR)(JCM), 2019 WL 1244293 (S.D.N.Y. Mar. 15, 219), Judge Nelson S. Román denied Plaintiffs’ motion to dismiss Defendant’s unjust enrichment counterclaim in a Fair Labor Standards Act class action. Plaintiffs worked for Defendant bakery as distributors pursuant to certain Distributor and Advertising Agreements. Those contracts classified Plaintiffs as “independent contractors.” Plaintiffs alleged that they were “employees” and thus were owed overtime and repayment of business deductions under the FLSA. In response, Defendant asserted a counterclaim for unjust enrichment, arguing that Plaintiffs were reclassified as employees but were allowed to retain bonuses and other monies they had received pursuant to the Distributor and Advertising Agreements, they would be unjustly enriched by deriving benefits from both classifications at once. Plaintiffs moved to dismiss, arguing unjust enrichment was unavailable to Defendant because (a) there were valid contracts between the parties and (b) Defendant’s claim was barred by the voluntary payment doctrine.