Court of Appeals Holds Commercial Contracts Can Waive Right to Seek Declaratory Judgment to Interpret the Terms of the Agreement and Yellowstone Relief

Contracts are often ambiguous. They are usually long, with many terms, and you never know how they will apply in circumstances that the parties never contemplated. That's why the power to go to court to ask for an interpretation of the agreement and how it applies to the unique facts that the parties face has... Continue Reading →

No Office, No Problem: Court of Appeals Holds that Violation of Judiciary Law § 470’s “Physical Office” Requirement Does Not Render Action a Nullity, But Could Subject Attorney to Discipline

In a unanimous decision authored by Judge Michael Garcia, the Court of Appeals today resolved an important issue of first impression implicating multi-state practice in New York—“whether an action, such as filing a complaint, taken by a lawyer duly admitted to the bar of this State but without the required New York office is a... Continue Reading →

Court of Appeals Holds Hearsay Statements from Sexual Assault Victim May be Considered to Support College Disciplinary Decision

When a sexual assault occurs on a SUNY campus, the victim shouldn't have to suffer through the assault twice. The victim has the right to decide not to participate in any disciplinary hearings held by the SUNY disciplinary board, and to instead submit a written or other hearsay statement telling his or her side of... Continue Reading →

For the First Time, Court of Appeals Issues a Separate Opinion While Denying Leave to Appeal

When the Court of Appeals grants or denies a motion for leave to appeal, it generally does so in a one sentence order that says "motion for leave to appeal denied" or "motion for leave to appeal granted." At most, the Court will issue paragraph explanations sometimes when it has to dismiss a motion for leave... Continue Reading →

Court of Appeals Gets “Cleaned Up,” and Also Decides an Identity Theft Case

When a thief, or these days a hacker, steals your credit card and uses it, most people call that identity theft.  The New York criminal statutes, however, haven't been so clear about whether the use another's personal identifying information, such as their name, bank account, or credit card number, is enough to show that the... Continue Reading →

Sharply Divided Court of Appeals Rejects Per Se Rule that a Gap in Treatment Longer than 2 1/2-Year Statute of Limitations Should Bar Application of Continuous Treatment Doctrine

Imagine you hurt your shoulder and it's just not getting better. You go to the doctor after trying rehab and he says it's time for surgery. You schedule the date, head in to the hospital, and the doctor fixes your shoulder, or at least he says he did. He tells you to follow up with... Continue Reading →

Court of Appeals: Indenture Trustee Can Bring Third Party Actions to Recover for Fraudulent Redemption of Assets Rendering Debtor Insolvent

Financial fraud is complex. The schemes cooked up by fraudsters are intricate, and the financial maneuvers used are often difficult to follow. The fraud alleged in Cortlandt Street Recovery Corp. v Bonderman (No. 14) is no different. Breaking it down to the extent I can, a number of private equity investors were interested in acquiring... Continue Reading →

Plurality of Court of Appeals Holds Party Barred from Asserting a Federal Compulsory Counterclaim in a Subsequent State Court Suit

A case about movie investments is the latest that has closely divided the Court of Appeals. Actually, the issue before the Court had absolutely nothing to do with the movie or the lost investment. Instead, it’s the kind of issue that sparks interest in the community of appellate lawyers who look at how the courts... Continue Reading →

Court of Appeals: Private Facebook Posts are Discoverable Under Normal Discovery Rules

Like privacy wonks have always said, everything you do online will live on forever. In metadata, back up tapes, and the cloud. The same is true for what you say on Facebook, Twitter, or any other social media platform. And although privacy settings can protect your content from the general public, limiting it to sharing... Continue Reading →

Court of Appeals: Sorry, Judges. The State’s Contribution to Your Health Insurance is Not Part of Your Compensation

New York employees have pretty great health insurance options. Having left the State's employ and its health insurance to move to the private sector and non-collectively bargained health insurance, believe me, I know. Premiums are low. Coverage is high. And the State covers a substantial part of the cost. So too for New York's judges.... Continue Reading →

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