The New York Court of Appeals recently endorsed the trial court’s discretion to grant leave to amend a complaint under CPLR 3025 (b), holding that when the appellate court dismisses the plaintiffs’ complaint without prejudice, and the original action remained pending in the trial court with defendants’ counterclaims, the trial court may grant plaintiffs leave to file a third amended complaint.
First Department
NY Court Re-Affirms Privilege Protection for Personal Emails Sent by Law Firm Partner on Firm Email Account
By Stacey P. Eilbaum on
Citing new deposition testimony, actor Justin Theroux in a recent motion asked the New York Supreme Court to reconsider its December 2020 denial of Theroux’s motion to compel production of emails that his neighbor, Norman Resnicow, a law firm partner, sent to his personal lawyer about the parties’ quarrel (related to the New York City co-op where they both reside) using his law firm email account.
Firm’s Computer Policy Doesn’t Undermine Claim of Privilege Over “Private” Communications With Counsel
By Stacey P. Eilbaum on
New York City apartment living can spawn interesting legal disputes when neighbors fail to resolve their grievances amicably and resort to the courts. Sometimes these disputes bring fanfare as well as opportunities to observe traditional rules of law in action. A recent decision in the ongoing dispute between actor Justin Theroux and his neighbors (Theroux v. Resnicow) is just that.
Appellate Court in New York Confirms Civil Conspiracy is Not an Independent Cause of Action
By Julia M. Ansanelli on
In early April 2020, the First Department affirmed the dismissal of a complaint by a Russian lawyer who had received an L.L.M. from Fordham University alleging “civil conspiracy” against Fordham and several American attorneys, reasoning that New York does not recognize a stand-alone claim of civil conspiracy.
First Department Finds Work-Product Protection Not Waived by Storage of Documents on Company Laptop
By Stacey P. Eilbaum on
On June 6, 2017, the First Department had an opportunity to apply—and reaffirm—last month’s decision in Peerenboom v. Marvel Entm’t, LLC, where the Court held that use of a company email system for personal purposes “does not, standing alone, constitute a waiver of attorney work product protections” even if the user lacked reasonable assurance of confidentiality necessary to bring the documents within the attorney-client or marital privileges. In Miller v. Zara USA, Inc., plaintiff, the former general counsel of Zara USA, Inc., sought a protective order precluding the company from accessing personal documents on a company-owned laptop, claiming the documents to be protected by the attorney-client and work-product privileges. The Supreme Court issued the protective order and Zara appealed.
First Department Finds Forum Selection Clause in Earlier Agreement Valid Despite Later Agreement Providing for Arbitration
By Alyse F. Stach & Peter J.W. Sherwin on
In a 3-2 split decision, a New York appellate court determined that a forum selection clause providing for litigation in New York courts had not been explicitly terminated and thus trumped agreements to submit to arbitration in London provided in later contracts that cancelled the previous one. Thus, the appellate panel for the First Department in New York reversed a lower court decision and directed the parties in Garthon Business, Inc., et al. v. Stein, et al., to proceed with their claims in court as opposed to arbitration in London.