Evolution Trading Mgt. LLC v Bank of N.Y. Mellon Corp.

Evolution Trading Mgt. LLC v Bank of N.Y. Mellon Corp. 2011 NY Slip Op 07511 Decided on October 25, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 25, 2011
Friedman, J.P., Catterson, Renwick, Richter, JJ.
5839 104767/10

[*1]Evolution Trading Management LLC, et al., Plaintiffs-Respondents,

v

The Bank of New York Mellon Corporation, Defendant-Appellant, BNY Convergex LLC, et al., Defendants.




Pillsbury Winthrop Shaw Pittman LLP, New York (David A.
Crichlow of counsel), for appellant.
Stuart J. Moskovitz, New York, for respondents.

Order, Supreme Court, New York County (Ira Gammerman, J.H.O.), entered on or about March 23, 2011, which, insofar as appealed from, granted plaintiffs' motion for summary judgment in their favor on their claims and on defendant Bank of New York Mellon Corporation's counterclaims, and denied said defendant's cross motion for summary judgment dismissing the complaint, unanimously reversed, on the law, with costs, plaintiffs' motion denied, defendant's motion granted, the counterclaims severed, and the matter remanded for further proceedings. The Clerk is directed
to enter judgment in defendant's favor dismissing the complaint.

The asset purchase agreement between defendant and plaintiffs' predecessor provided that the escrow funds would be released in the event of the "Resolution" of the underlying patent infringement lawsuit between Lava Trading Inc. and plaintiff's predecessor. It defined "Resolution" as "entry of a final unappealable order or judgment . . . that does not impose any liability or payment obligations on [defendant] for any Losses or settlement amounts." The agreement settling the lawsuit provided that nothing in it restricted Lava Trading's right to sue defendant for patent infringement. Since the time limitation on damages for patent infringement is six years (35 USC § 286), defendant will remain subject to such a lawsuit until July 2014. Thus, the settlement of the underlying lawsuit did not effect a "Resolution" as contemplated by the parties, and plaintiffs are not entitled to the release of the escrow funds.

The counterclaims adequately pleaded that defendant was damaged by plaintiffs' conduct (see Fielding v Kupferman, 65 AD3d 437, 442 [2009]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. [*2]

ENTERED: OCTOBER 25, 2011

CLERK