Russell M. Yankwitt

Fourth Quarter 2022 Westchester County Roundup

Fourth Quarter 2022 Westchester County Roundup

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

Is it Ever Too Late to Make a Change? Westchester Supreme Court Commercial Division Grants a Post-Note of Issue Motion for Leave to Amend Under NY CPLR 3025(b)

While the CPLR permits an early pleading amendment as of right, any subsequent or “late in the game” amendment requires agreement among the parties or leave of court under CPLR 3025(b). That provision counsels courts that “[l]eave shall be freely given upon such terms as may be just . . .” But how “free” should courts be in allowing supplemental pleadings?

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.

A Mismatched Pair: Second Department Holds Consolidation “Inapt” Where One Action is Subject to a Meritorious Motion to Dismiss

Consolidation under CPLR 602(a) allows for multiple actions that involve common questions of fact and law to be merged under the same caption. The procedural tool is intended to avoid unnecessary duplication of trials, save on costs, and prevent injustice that may result from divergent decisions on the same facts.

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

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.

To Vacate or Confirm? How Excessive Attorneys’ Fees Award Brought Down an Entire Arbitration Award

Under CPLR 7510-11, judicial review of arbitration awards is limited. Because of our judicial system’s partiality toward resolving issues through alternative dispute resolution mechanisms, courts can only vacate an arbitration award where the plaintiff proves with clear and convincing evidence that the award was irrational, against public policy, or that the arbitrator exceeded her powers.

What Makes a Wage and Hour Attorneys’ Fee Award “Reasonable”? A Multi-Factor Analysis from the Southern District of New York, White Plains Division

In a March 2023 decision arising out of a putative class and collective action under the Fair Labor Standards Act and New York Labor Law, Southern District of New York Judge Philip M. Halpern tackled the “reasonableness” of attorneys’ fees awards in wage and hour settlements. Both statutes contain fee-shifting provisions and provide for an award of “reasonable attorney’s fees” to prevailing plain

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.

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.

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?

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

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

“Trials Occur in a Court”: SDNY Leads the Way on Strict Construction of FRCP 45(c)’s 100-Mile Limit on Subpoenas

Federal Rule of Civil Procedure (“FRCP”) 45(c) restricts federal courts’ powers to compel testimony from a third-party witness in civil litigation to locations: (1) “within 100 miles of where the person resides, is employed, or regularly transacts business in person;” or (2) within the state of residence, employment, or regularly transacted business if the person is a party or party’s officer and

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

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

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?

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.

Dodging Diversity: Navigating Claims of Fraudulent Joinder

Federal diversity jurisdiction provides a neutral forum for litigants from different states, preventing state court bias against out-of-state defendants. But just as defendants often prefer their case be venued in federal court, plaintiffs often prefer to stay in their home state court. Enter the fraudulent joinder, where the plaintiff attempts to avoid federal jurisdiction by falsely adding non-d

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.

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

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?

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