Yankwitt LLP

The Contract Reigns Supreme: Judicial Enforcement of Contractually Shortened Statutes of Limitation

One of the most common obstacles in commercial litigation is not the facts of a case; it is the clock. Under CPLR 213(2), the default statute of limitations for contract-based claims is six years.

Westchester Supreme Court Issues Revised Civil Case Management Rules

With Judge Lefkowitz’s retirement, the Westchester Supreme Court has rolled out new Civil Case Management Rules, effective September 2, 2025, affecting the Settlement and Trial Parts.

A Handshake Deal? Business Owners Should Think Twice Before Foregoing a Formal Written Agreement

At what point does an agreement by email butt up against the “statute of frauds” – the 17th century English common law rule, codified at New York’s General Obligations Law § 5–701(a)(1), that certain contracts must be in writing and executed to be legally enforceable.

Arbitration Waivers in the Post-Morgan World: Second Circuit Clarifies Test for Evaluating Waiver of Arbitration Claims

The Second Circuit recently clarified the applicable standard in its first precedential decision since Morgan was decided.

Kitchen-Sink Pleading Has Its Limits: Tort Claims Duplicative of Contract Claims will be Dismissed

Complaints filed in commercial litigations often take a kitchen-sink approach to pleading, asserting every conceivable liability theory – in tort and contract – to ensure that all bases are covered and maximum pressure is imposed on the other side.

Judge Seibel Delivers Master Class on SDNY Rule 56.1 Statements

Practitioners in the United States District Court for the Southern District of New York face an added requirement when moving for summary judgment under Federal Rule of Civil Procedure 56 – the Rule 56.1 statement.

Distinct or Duplicative: Analyzing Hybrid Fraud-Contract Claims in Commercial Litigation

When a client comes in with a commercial breach of contract case against a corporate contracting partner, one strategy we explore is whether distinct fraud and/or negligent misrepresentation claims can be asserted in connection with the contract’s formation

Arbitration Waivers in the Post-Morgan World: Second Circuit Clarifies Test for Evaluating Waiver of Arbitration Claims

In the wake of Morgan, the federal district courts in New York took varying approaches to analyzing arbitration waivers.

From Mass Torts to Wage Claims: How Bristol-Myers Is Reshaping FLSA Collective Actions

In 2017, the U.S. Supreme Court issued its decision in Bristol-Myers Squibb Co. v. Superior Court of California, 137 S. Ct. 1773 (2017), which reshaped how courts evaluate personal jurisdiction—particularly in multi-state litigation.

Anderson v. City of New York: A Cautionary Tale About Raising a New Theory of Liability in Opposition to Motion for Summary Judgment

In a recent decision, the Appellate Division, Second Department, reaffirmed the New York rule that a plaintiff opposing a motion for summary judgment cannot raise a new theory of liability not already alleged in her complaint in the opposition brief.

Good News for Businesses: New York Court of Appeals Holds Clickwrap Agreements are Binding and Enforceable

“I carefully read through the terms and conditions for a smartphone application before clicking I agree,” said no consumer ever. In a recent decision from the New York Court of Appeals, the state’s highest court made clear the consequences of “I agree,” holding that an online “clickwrap” process used to update the terms and conditions for site use created a valid and legally binding agreement even

The Ten Sealed Plaintiff Factors: the High Burden Plaintiffs Must Overcome to Proceed Anonymously in Second Circuit Civil Litigations

Under the Federal Rules of Civil Procedure, a “complaint must name all the parties.” Fed. R. Civ. P. 10(a). This rule facilitates public scrutiny of judicial proceedings while ensuring that people know who is using their courts. In highly charged cases, however, a plaintiff may wish to file under a pseudonym to protect his privacy interests. Does a plaintiff’s right to privacy overcome the pres

Fundraising for Judicial Campaigns: Issues and Best Practices

The recent election may be behind us, but it’s never too early to think ahead, especially when it comes to understanding the do’s and don’ts for lawyers with respect to judicial campaign fundraising. In New York, lawyers are allowed to contribute to the reelection campaigns of judges they may appear before, but what happens when lawyers decide to get even more involved?

Federal Court Standing in Employment Litigation

To bring a case in federal court, Article III of the United States Constitution requires a plaintiff to demonstrate standing to sue by alleging three elements: (1) a concrete and particularized injury; (2) that is traceable to the defendant’s allegedly unlawful actions; and (3) that the injury can be redressed with a favorable judicial decision. These requirements ensure that federal courts do not

Two Courts, One Decision: How Res Judicata Halts Concurrent Battles

When a civil lawsuit has been fully litigated, the doctrine of res judicata operates to stop the losing party from (1) relitigating the same claims and (2) bringing new claims based on the same underlying facts. But does it apply when there are concurrent litigations across jurisdictions? In Beijing Neu Cloud Oriental Sys. Tech. Co., Ltd. v. IBM Corporation, the Second Circuit held that it does.

Res Judicata and Voluntary Dismissal with Prejudice: A Cautionary Tale of Accidental Preclusion

Voluntary dismissal of claims can be a smart strategic move in the right case at the right time for a number of reasons. Perhaps a better venue is available, or the client decided it’s not the right time to bring the claims. However, it is important to carefully draft a stipulation of discontinuance with a mind toward avoiding the potential for a preclusive effect.

When to Strike: Navigating Legal & Equitable Relief in Jury Demands

New York law dictates that legal relief (monetary damages) can be tried by a jury, but equitable relief can only be tried by the court. But what happens in a hybrid case where the complaint seeks both legal and equitable relief?

New York Court of Appeals Answers Second Circuit Certified Question on Failure to Promote or Hire Cases

The New York State Human Rights Law and New York City Human Rights Law (the “Human Rights Laws”) impose civil liability on New York employers who fail to promote an employee or hire a prospective employee based on discriminatory considerations such as race, sex, religion, or disability. But do these state and municipal laws allow suit by non-resident plaintiffs who do not yet live or work in New Y

SDNY Sides with the First Department on Appellate Division Split, Holds a Private Right of Action for Manual Employees Exists Under New York Labor Law Section 191

New York Labor Law (NYLL) Section 191 requires employers to pay manual workers on a weekly basis. In 2019, the First Department in Vega v. CM & Associates Construction Management, LLC (Vega) held that applied together, NYLL Sections 191 and 198 provide an express and implied private right of action for employer violations of Section 191’s pay frequency requirements. To date, the Court of Appeals h

Retroactive v. Prospective Application of the 2020 NY Anti-SLAPP Amendments

New York’s Anti-SLAPP (“Strategic Lawsuits Against Public Participation”) legislation was significantly expanded in 2020 to provide greater protection to public discourse by the everyday consumer. From a litigator’s standpoint, however, it was an open question as to whether the amended statute applied retroactively to anti-SLAPP lawsuits filed prior to its effective date, as the amendments themsel

To Estop or Not to Estop: Second Department Examines Impact on Proper Service of the Failure to Update A Home Address With the DMV

Under New York law, you must update your address with the New York State Department of Motor Vehicles (“DMV”) within 10 days of moving to a new residence. This rule not only ensures that you receive mail related to driving privileges and vehicle registrations but also that you can be served with process and do not fall victim to a default judgment. But what happens if you fail to update your addre

Intent to be Bound: The Validity of Settlements Negotiated Over Email

The settlement is not done until the agreement is finalized, and all parties have signed on the dotted line. Or is it?

Westchester Supreme Court Addresses Question of First Impression Under New York’s Child Victim’s Act: Does the CVA’s Revival Statute Apply to Wrongful Death Claims?

In February 2019, New York State enacted the Child Victim’s Act (the “CVA”), which, inter alia, opened a one-year window reviving civil actions based on certain criminal sexual offenses against minors for which the statute of limitations had already run.

NY State Proposes Amendments to Labor Law Voiding All Noncompete and Restrictive Covenant Agreements

On June 20, 2023, the New York State Assembly passed new, potentially game-changing legislation under the New York Labor Law that would prohibit employers from entering into noncompete agreements with employees.

NYC Council Approves Amendment to the Human Rights Law to Include “Height and Weight” as Protected Under the Discrimination Statute

On May 11, 2023, the New York City Council approved Intro 209–A, a local law amending the New York City administrative code to include “height and weight” as protected characteristics under the Human Rights Law’s discrimination statute.

U.S. Second Circuit Court of Appeals Certifies Novel Questions to New York’s Highest Court: Does “Inherited-Jurisdiction Theory” Apply if Acquisition Falls Short of Merger?

The legal theory of inherited jurisdiction holds that when two companies merge, the successor corporation “inherits” the predecessor’s status for personal jurisdiction purposes. Thus, if the predecessor was subject to jurisdiction in New York, so is the successor, irrespective of the successor’s contacts (or lack thereof) with the New York forum. But what happens when the relevant corporate tran

New York Law Journal Publishes Article on Personal Jurisdiction in FLSA Collective Actions

Yankwitt LLP attorneys Michael Reed and Scott Wenzel examine personal jurisdiction in Fair Labor Standards Act collective actions and whether all opt-in plaintiffs must demonstrate their claims arose out of the defendant’s minimum contacts with the forum state.

When to Hire Personal Counsel to “Shadow” Insurance Counsel

You find yourself in the following situation: you have been sued, and your insurance company has provided a lawyer to defend you, as stipulated in your insurance policy, per the insurer’s “duty to defend.” While this sounds like a great deal for you and often is, there are circumstances under which you should consider hiring your own counsel, in tandem with the insurance-provided defense, to ensu

Fourth Quarter 2022 Westchester County Roundup

Fourth Quarter 2022 Westchester County Roundup