Andrew Borrok

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A recent Commercial Division decision illustrates anew the elevated challenge of suing for judicial dissolution of a viable realty-holding company — even when the estranged co-members are already immersed in multiple litigations. Read about it in this week’s New York Business Divorce. …
Continue Reading It Takes More Than a Litigation Tsunami Between Hostile Members to Obtain Judicial Dissolution of a Realty-Holding LLC

Most practitioners believe the summary judgment in lieu of complaint statute, CPLR 3213, applies just to contracts involving loans or other indebtedness. Not so. In a recent decision, a Manhattan Commercial Division Justice granted summary judgment in lieu of complaint, entering a money judgment for nearly $35 million, based upon a seldom litigated provision of the statute permitting accelerated treatment “upon any judgment” – in this case, a prior declaratory judgment. Read about the Court’s novel approach to summary judgment in lieu of complaint in this week New York Business Divorce.
Continue Reading Summary Judgment in Lieu of Complaint Meets Business Divorce

This week’s post considers a recent decision from New York County Commercial Division Justice Borrok, who offers well-reasoned guidance on the separateness between claims to specifically enforce a buy-sell agreement, on the one hand, and damages claims, on the other.
Continue Reading Never the Twain Shall Meet: Damages Claims Do Not Offset the Purchase Price in Buy-Sell Agreements

LLC members often enter into an operating agreement containing certain formality requirements, then exercise substantially less formality in their dealings. In those cases, the argument that a member waived his or her right to insist upon the formality requirements of the operating agreement is a familiar one. In a recent case, New York County Justice Borrok considers a party’s claim that text messages establish his 9.9% membership interest in an immensely valuable cryptocurrency business, despite admitted non-compliance with the member-admission requirements of the operating agreement. …
Continue Reading Text Messages Trump Formalities in Ownership Dispute Over Cryptocurrency Business

The interaction between an LLC’s operating agreement and a subsequent, informal deal between the members raises difficult questions surrounding the enforceability of either agreement. In a recently-filed Manhattan Commercial Division case, the Court granted the plaintiff a preliminary injunction, signaling to the parties that the plaintiff was likely to succeed on his claim to enforce the informal deal notwithstanding arguably contrary provisions in the operating agreement. The case reminds us that the formality requirements of an LLC operating agreement may give way to an informal agreement when both LLC members manifest their intent to be bound by the informal agreement.
Continue Reading A Shotgun Buy-Sell Agreement and an Email Deal Walk into a Beachside Bar . . .

Can a shotgun turn into a minefield? The answer is “yes” judging from a recent decision by Manhattan Commercial Division Justice Andrew Borrok finding a defective exercise of provisions in an LLC agreement for a deadlock-triggered shotgun buy-out. Read about it in this week’s New York Business Divorce. …
Continue Reading LLC Member Pays the Price For Not Sticking to Deadlock-Breaking Script