MIC Gen. Ins. Corp. v Campbell, 2020 NY Slip Op 01465 [1st Dept. 2020]
Plaintiff demonstrated, via defendant’s admission in a statement to its investigator and the investigator’s inspection of the insured premises, that defendant did not reside at the premises and was therefore not covered by the policy (see Almonte v CastlePoint Ins. Co., 140 AD3d 658 [1st Dept 2016]).
Favourite Ltd. v Cico, 2020 NY Slip Op 01463 [1st Dept 2020]
Contrary to defendants’ contention, New York courts have subject matter jurisdiction over the amended complaint, which was supposed to contain only derivative claims (see Matter of Raharney Capital, LLC v Capital Stack LLC, 138 AD3d 83, 87 [1st Dept 2016]). The fact that the operating agreement of Upper East Side Suites, LLC (the Company) chooses Delaware law is of no moment, since “choice of law and choice of forum are altogether separate matters” (Bank of Tokyo-Mitsubishi, Ltd. v Kvaerner, 243 AD2d 1, 5 [1st Dept 1998]). Furthermore, section 18-1001 of the Delaware Limited Liability Company Act (the Act), which provides that “a member or an assignee of a limited liability company interest may bring an action in the Court of Chancery,” is permissive, not mandatory (see generally Estate of Calderwood v ACE Group Intl. LLC, 157 AD3d 190, 195 [1st Dept 2017], lv dismissed 31 NY3d 1111 [2018]).
Dani v 551 W. 21st St. Owner LLC, 2020 NY Slip Op 01456 [1st Dept. 2020]
The court providently exercised its discretion in denying defendants’ motion (see generally Veras Inv. Partners, LLC v Akin Gump Strauss Hauer & Feld LLP, 52 AD3d 370, 373 [1st Dept 2008]). Defendants at this point have failed to satisfy the “threshold requirement” that the request was reasonably calculated to yield information that is “material and necessary” (Forman v Henkin, 30 NY3d 656, 661 [2018] [internal quotation marks omitted]). The affidavits submitted in support of the motion simply stated that plaintiff was holding his cell phone in his hand prior to the trip and fall accident, and that the cell phone was found near his body after the accident. As such, they were too speculative to warrant disclosure of plaintiff’s cell phone records (see Gough v Panorama Windows, Ltd., 133 AD3d 526 [1st Dept 2015]).
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