In Focus

Keep It Short and Tweet: Brief Writing Tips Inspired by Twitter

By Evan K. Farber |

Evan K. Farber, a partner at Loeb & Loeb, writes: Tweets may be an unlikely source of inspiration for brief writing. But while the supply is plentiful, why not make the most of them?

In Three Procedural Decisions, Court Tackles Apportionment and Jurisdiction

By Patrick M. Connors |

Patrick M. Connors of Albany Law School summarizes three significant civil procedure decisions handed down by the New York Court of Appeals during its 2016-2017 term. There is something here for both the personal injury lawyer and the commercial litigator alike.

In Term of Transition, Court Sides With Insurers

By Evan H. Krinick |

Evan H. Krinick, managing partner of Rivkin Radler, writes: The one thing that can be said about the most significant insurance law cases decided by the Court this past term: They all were decided in favor of the insurance carriers.

The Oral Argument: An Absolute Must When Appealing a Case

By E. Michael Kavanagh |

E. Michael Kavanagh, a member of NAM (National Arbitration and Mediation), writes: The oral argument can be the essence of effective advocacy and it can make a difference in an appeal.

Court Considered Government Liability in Three Notable Cases

By Jeffrey S. Lichtman and Richard A. Menchini |

Jeffrey S. Lichtman and Richard A. Menchini, partners at O'Hare Parnagian, write: In the past term, the Court of Appeals issued several decisions which examined how issues of governmental liability intersect with different stages of the litigation process.

Decisions in the 2016-2017 Term Overwhelmingly Favored Prosecutors

By Paul Shechtman |

Paul Shechtman, a partner at Bracewell, writes: The 2016-2017 term of the New York Court of Appeals in criminal law was a relatively quiet one in which the prosecution fared better than the defense.

Distinguishing Equity From Debt in Related Party Contexts

By David E. Kahen |

In his Taxation column, David E. Kahen discusses 'Bell v. Commissioner', writing: Overall, the results reached in 'Bell' are not surprising in light of the case law. This case is a reminder of the courts' willingness to reclassify transactions—including reclassification as stock of obligations intended to be debt for tax purposes—even without express authorization by statute or regulation, and to plan in a manner that avoids or minimizes such risks.

Todd Soloway and Bryan Mohler

Settlement Agreements With Airbnb Violate Separation of Powers

By Todd E. Soloway and Bryan T. Mohler |

In their Hospitality Litigation column, Todd Soloway and Bryan Mohler discuss the act introduced in the New York State Senate and Assembly to curtail the advertisement of short-term rentals in New York, and explain how, in settling subsequent litigation with Airbnb, Governor Cuomo and Mayor Bill de Blasio have, in an effort to protect Airbnb, undercut the express language of the statute. In so doing, the executive branch has usurped the power of New York's legislature, in direct violation of the separation of powers doctrine. Their article explores this situation and potential avenues for aggrieved parties to enforce the law against Airbnb.

Scott E. Mollen

Realty Law Digest

By Scott E. Mollen |

Scott E. Mollen, a partner at Herrick, Feinstein and an adjunct professor at St. John's University School of Law discusses 'Portofino Realty Corp. v. N.Y. State Division of Housing,' where the court held that the creation of the Tenant Protection Unit does not deprive landlords of Due Process.

Joseph M. McLaughlin and Yafit Cohn

Preclusion in Derivative Litigation: New Uncertainty

By Joseph M. McLaughlin and Yafit Cohn |

In their Corporate Litigation column, Joseph M. McLaughlin and Yafit Cohn of Simpson Thacher & Bartlett write: Until the Delaware Supreme Court provides definitive word, managers and stockholders of Delaware corporations must make strategic decisions based on conflicting guidance on whether successive stockholders are barred from seeking to relitigate demand futility allegations.

Adam Leitman Bailey and John M. Desiderio

When Email Exchanges Become Binding Contracts

By Adam Leitman Bailey and John M. Desiderio |

In their Real Estate Contracts column, Adam Leitman Bailey and John M. Desiderio discuss when emails will be deemed a real estate contract and how to prevent or create such a binding contract.

Scott E. Mollen

Realty Law Digest

By Scott E. Mollen |

Scott E. Mollen, a partner at Herrick, Feinstein and an adjunct professor at St. John's University School of Law, reviews 'Taylor v. 72A Realty Assoc.,' involving a tenant's allegations of fraud over apartment improvements for an apartment that was improperly deregulated, and 'Statler v. Dioguardi,' involving a Yellowstone injunction and constructive eviction allegations.

Dealmaking With State-Owned Companies: Drafting, Enforcement Tips

By Dennis Tracey and David Michaeli |

Dennis Tracey and David Michaeli of Hogan Lovells write: As recent cases make clear, enforcing arbitral awards against sovereign-owned entities is often expensive and difficult for a host of reasons, including weaknesses in the drafting of the arbitration agreements and judicial doctrines that may undermine a party's ability to enforce arbitral awards. The good news is that many enforcement problems can be addressed at the drafting stage.

Divorce Mediation and ADR in New York Courts

By Jordan E. Trager |

Jordan E. Trager of Wisselman & Associates writes: Through efforts to provide a better understanding of the practice of divorce mediation, the courts will gain a greater appreciation of the unique role of divorce mediators, apart from other professionals, and will learn the unique role that divorce mediators can play.

Be Careful What You Ask For: Multi-Tiered Dispute Resolution Clauses

By Richard De Palma |

Richard De Palma of Thompson Hine writes: Multi-tiered dispute resolution clauses are generally enforceable under New York law, but counsel may encounter some twists if the clause is not carefully drafted or if the arbitrator or court is not properly educated on the legal effect of the language employed.

Expedited Arbitration: When Is Faster Better?

By Javier Rubinstein, Lucila Hemmingsen and Seth Meyer |

Javier Rubinstein, Lucila Hemmingsen and Seth Meyer of Kirkland & Ellis write: Faster is not always better, as some disputes unavoidably require a more extensive dispute resolution. There is no one-size-fits-all answer. The key is to ensure that the dispute resolution process is thoughtfully selected by the parties to meet their needs.

Courthouse to Conference Room: Transitioning From the Bench to Private Mediator

By Larry S. Schachner |

Larry S. Schachner of NAM's (National Arbitration and Mediation) writes: Private mediation allows cases to be resolved more quickly, more efficiently, with greater cost-effectiveness and with the parties maintaining greater control of the outcome, than allowing your case to slowly meander through the different stages of the court system's litigation maze.

Navigating the Standards Used to Assess Arbitrator Bias in International Arbitration

By Christopher Ryan, Jon Greenblatt and Henry Weisburg |

Christopher Ryan, Jon Greenblatt and Henry Weisburg of Shearman & Sterling write: While party autonomy is a benefit of arbitration, the selection of arbitrators by the parties can raise similar questions of dependence and partiality that cause parties to view local courts with skepticism. The participants in the international arbitral system have recognized the potential harm that could arise from unchecked concerns over arbitrator bias and, as a result, a web of overlapping rules and ethical guidelines governing arbitrators have emerged.

Barbara M. Goodstein

The Central Bank Case: Trusting in True Sales of Participations

By Barbara M. Goodstein |

In her Secured Transactions column, Barbara M. Goodstein writes: When do loan participation agreements transfer the actual property rights of the originating creditor versus merely a contractual right against the counterparty to proceeds of that property? That question was the subject of a decision earlier this year. Though not groundbreaking, the case provides a thoughtful discussion on this subject, an interesting emphasis on "trust" language, and an opportunity to re-visit current thinking of courts on the issue of when participations are true sales of loan interests.

Warren A. Estis and Michael E. Feinstein

Notice Requirement(s) for an 'Owner's Use' Proceeding?

By Warren A. Estis and Michael E. Feinstein |

In their Landlord-Tenant Law column, Warren A. Estis and Michael E. Feinstein raise the question of whether both a "Golub" notice and a notice of termination are required in "owners use" proceedings. Caselaw seems to offer different opinions.

Scott E. Mollen

Realty Law Digest

By Scott E. Mollen |

Scott E. Mollen discusses three landlord-tenant cases—'408 St. John's Place v. Estate of Bartholomew,' 'The Grove v. Suquilanda,' and 'Prospect Union Associates v. DeJesus,' and a Toxic Substances Control Act case—'USA v. Accolade Construction Group.'

Accessing and Using a Spouse's ESI in a Divorce

By Kelly Frawley and Emily Pollock |

Kelly Frawley and Emily Pollock of Kasowitz Benson Torres write: With the multiple devices used by families, from smartphones to laptops to tablets, as well as the many storage options available for the information transmitted through and accessed by those devices, managing issues relating to electronically stored information is an important part of family law practice.

The Time Has Arrived for Covering Genetic Materials in Prenups

By Michael Stutman |

Michael Stutman of Stutman Stutman & Lichtenstein writes: The time is right for family law practitioners to consider incorporating decision-making matrixes in prenuptial agreements that can be drafted by experienced counsel. A collaborative effort on behalf of practitioners in the various areas that impact these decisions would certainly be a project that would benefit many.

Social Media in Divorce and Family Law: A Trap for the Unwary

By Harriet Newman Cohen and Amanda Laird Creegan |

Harriet Newman Cohen and Amanda Laird Creegan of Cohen Rabin Stine Schumann write: Along with the blessings of the Internet have come the pitfalls. Private lives have been exposed and damaged. Persons have been subjected to cyberbullying. As matrimonial attorneys, we need not only to be aware of the joys, but also of the pitfalls of social media.

The Separate Property Credit in Divorce Actions

By Elliot J. Wiener |

Elliot J. Wiener of Phillips Nizer writes: Rules that grant discretionary authority to the court promote flexibility at the price of uncertainty and expense. The history of the separate property credit provides a vivid example of this dilemma, offering shifting and uncertain rules that make counseling a client difficult and costly.

Parental Alienation During and After Divorce

By Arlene G. Dubin and Rebecca A. Provder |

Arlene G. Dubin and Rebecca A. Provder of Moses & Singer write: Divorces between parties come to an end. Parental alienation, however, may leave a lasting rupture in families. Matrimonial lawyers and mental health professionals can help play a key role in modulating the harmful effect of this phenomenon.

David A. Katz and Laura A. McIntosh

Common-Sense Capitalism

By David A. Katz and Laura A. McIntosh |

In their Corporate Governance column, David A. Katz and Laura A. McIntosh write: Recent developments in corporate governance indicate a welcome emphasis on common sense principles.

Anthony S. Guardino

'Public Trust' Ruling Puts a Brake on Development

By Anthony S. Guardino |

In his Zoning and Land Use Planning column, Anthony S. Guardino discusses how a decision by the New York Court of Appeals blocking construction of a project in Queens may reverberate across the state.

Scott E. Mollen

Realty Law Digest

By Scott E. Mollen |

Scott E. Mollen, a partner at Herrick, Feinstein and an adjunct professor at St. John's University School of Law discusses 'Reinhard v. Connaught Tower Corp.,' where a judgment of liability against a co-op board based on second-hand smoke was reversed by the Appellate Division which found that the source of smoke was never identified and the plaintiff only stayed in the apartment occasionally, and 'One Eighteen Housing Development Fund v. Smith,' where a holdover petition failed to state causes of action under two of three lease sections.