DECIDING CASES IN "THE COMMON LAW TRADITION": A PRODUCTIVE AND INNOVATIVE YEAR FOR THE COURT OF APPEALS IN BUSINESS AND COMMERCIAL LITIGATION
Howard A. Levine(1)
In this retrospective on significant developments in New York law during the annual 1996-1997 survey year, others, certainly with more objectivity than I, will identify a wide variety of decisional milestones in the work of the Court of Appeals during this period. Thus, quite properly, comment will be found in the articles that follow concerning the Court's important, ground-breaking decisions, for example, recognizing for the first time a civil damage action for a constitutional tort;(2) or the unusual number of decisions resolving important issues under the Federal and State Constitutions such as: Matter of Lunding v Tax Appeals Tribunal;(3) Grumet v Cuomo;(4) Kim v City of New York;(5) Matter of Anello v Zoning Board of Appeals, Dobbs Ferry;(6) Homier Distributing Co. v City of Albany;(7) Rogers v New York City Transit Authority;(8) City of New York v Patrolmen's Benevolent Association.(9) Also, due note will be taken of the salutary clarification of assumption of risk doctrine in sports injury tort cases,(10) and of the application of the prudent person standard of care when a fiduciary fails to diversify investments.(11) Undoubtedly, for anglers, the most momentous decision of the survey year by the Court of Appeals was Douglaston Manor Inc. v Bahrakis,(12) regarding the right of the owner of both banks and the bed of a portion of a navigable river to exclude the public from fishing in, but not navigating through, that segment.
From my own reflections on the work of the Court of Appeals during the 1996-1997 survey year, however, the most noteworthy developments consisted of a line of decisions -- starting perhaps before the survey year, but becoming apparent only from reviewing decisions of the recent past -- in which the Court's focus may have shifted, expanded or intensified in resolving a large number of important business and commercial law cases, either as matters of first impression or as applications of established doctrine to new, dynamic circumstances.
Here, our Court was fulfilling a role in keeping with one of its more venerable and respected traditions. Two contemporary Chief Judges of the Court have pointed with understandable pride to the leadership of the Court of Appeals in developing commercial and business law, attributable at least in part to the preeminence of New York State in the national economy. Chief Judge Breitel, in his remarks made on the occasion of his retirement from the bench, said "[w]hat made this court great was the happy circumstance *** that the State of New York was as important as it was, that it was the center of commerce and industry".(13)
Chief Judge Judith S. Kaye recently made a similar observation, noting the historical, synergistic-like effect on the evolution of business-related legal doctrine of the interrelated factors in New York of a dynamic economy, courts and governmental agencies responding to advances and innovations in economic affairs, and an especially resourceful commercial and business bar serving the clients comprising the economic community.(14)
The annual survey year presented a considerable number of important commercial and business law cases having statewide, national and even international implications.
Continuing the examination of business torts and related matters from the Court's earlier 1996 term decisions in NBT Bancorp v Fleet/Norstar Financial Group(15) and Foster v Churchill,(16) we decided several cases of consequence in that same general subject area. In Kimmell v Schaefer,(17) the Court for the first time recognized that negligent, rather than intentional, misrepresentations made by company management to potential venture capital investors in the company could give rise to an actionable claim. On the other hand, the Court in Murphy v Kuhn,(18) refused to expand liability either on a negligent misrepresentation or breach of implied contract theory for the failure of an insurance agent to advise a client regarding the adequacy or inadequacy of liability insurance coverage in the policy issued, absent a "special relationship" with the client.
In a decision related to claims of misrepresentation following a corporate merger, the Court, in Tekni-Plex v Meyner & Landis,(19) determined how and under what circumstances the acquiring corporation succeeded to the attorney-corporate client privilege with respect to communications with the attorney who had represented the acquired corporation before and during the merger transaction.
Despite adoption of the Uniform Commercial Code in New York some 35 years ago, the Court addressed, as matters of first impression, two issues involving claims under articles 3 and 4 of the Code. In MRF Resources Ltd. v Merchants Bank of New York,(20) the Court examined whether the claim that a bank's temporary hold on a customer's account, because of suspicions on the validity of a recently deposited check the bank had certified, constituted a wrongful dishonor of the check, giving rise to compensable consequential damages. Concluding that it was not, the Court held that plaintiff's only remedy was under UCC 4-A-305 for the delay in execution of an order for a wire transfer of funds from the account, caused by the hold on the account. Under the latter section, the customer could not recover consequential damages, in the absence of a prior express written agreement of the bank.(21) In Getty Petroleum Corp. v American Express Travel Related Services Co.,(22) the Court held that the "fictitious payee" exception, of UCC 3-405(1)(b), under which the drawer of a check bears the loss on a forged endorsement if the drawer intended the payee to have no interest in the instrument, applies to both bank and nonbank depositaries.
In a decision of far-reaching impact in the world of international banking and currency transactions, arising out of the collapse of the banking empire of Bank of Credit and Commerce International (BCCI), the Court held that the broad powers of the State Superintendent of Banks in connection with the liquidation of BCCI's New York operations included the right to take possession of funds wire transferred into the account of the Tokyo branch of BCCI at BankAmerica's New York office after the seizure of the New York agency of BCCI.(23)
In a case with potential reverberating effects throughout the securities industry, the Court of Appeals held in Guice v Charles Schwab & Co.,(24) that the 1975 amendments to the Securities Exchange Act and implementing regulations of the Securities and Exchange Commission
regarding "order flow" payments (i.e., payments given to retail securities broker-dealers for routing their customers' orders for execution to certain wholesale dealers or market makers), preempted State common-law agency doctrine regarding the fiduciary duties of an agent to its principal.
Other cases focusing on particular areas of interest affecting the business community, included those resolving issues in the following subject areas: partnerships;(25) agency;(26) contracts and arbitration;(27) industrial pollution liability insurance coverage;(28) construction contract indemnification agreements.(29)
This array of business and commercial law cases in the 1996-1997 survey year followed important decisions earlier in or immediately before the Court's 1996 term(30) involving: the rights of minority shareholders in closely held corporations;(31) duty of disclosure in soliciting minority consent to a corporate acquisition of the corporation;(32) demand upon the Board of Directors as a pre-requisite to a shareholder derivative action;(33) the obligations of a payor bank under UCC 4-302;(34) tortious interference with contractual relations in mergers and acquisitions;(35) application of the Statute of Frauds subscription requirement to fax transmissions;(36) the defense of economic justification to claims of tortious interference with contractual relations;(37) whether officers of a franchisor are strictly liable for a fraud under the State franchising statute (GBL article 33);(38) issues of venue and personal jurisdiction in commercial arbitration agreements.(39)
This substantial output of business and commercial law decisions, almost all of which came to the Court of Appeals by its own leave, reflects the novel and far-reaching legal disputes generated by a vigorous economy, and a willingness of the Court to tackle challenging issues, the resolution of which would then govern the conduct of commercial and business affairs and the structuring of transactions in the future. All of those decisions were crafted in opinion form. This evinces the Court's assessment not only of the importance of the particular issues involved, but also that those issues merited a full explication of the Court's reasoning in reaching the result, in order to provide optimum comprehension of the meaning of the holding and predictability in its application to future cases.
Whether the decisions achieved those goals will, of course, be better assessed by the commercial and business legal community, the practicing attorneys, scholars in those fields, and lower court judges who will have to apply the holdings to new sets of facts and circumstances. The wisdom of the decisions will have to be tested by how well they "work" in fairly, effectively and realistically ordering future business and commercial matters.
Yet the Court's commitment to providing certainty and predictability may perhaps be demonstrated by a reference to and guidance from Karl N. Llewellyn's classic, The Common Law Tradition: Deciding Appeals. Llewellyn was, of course, the premier commercial law scholar of the modern era as shown by his selection by the American Law Institute and the National Conference of Commissioners on Uniform State Laws as the chief reporter for the momentous Uniform Commercial Code project.(40) He has also been regarded as the leader of the American Legal Realist Movement.(41)
The Common Law Tradition was written in 1960, less than two years before his death, and was his last major work, representing his final thinking on the judicial process.(42)
There is a certain irony in the reasons Llewellyn gave for writing The Common Law Tradition, and in some of his conclusions. More contemporary legal scholars would consider Legal Realism's primary teaching to be that our appellate decisional process is nothing more than subjective indeterminacy. "Legal Realism produced the insight that case analysis cannot generate objective answers to legal problems".(43) Llewellyn, however, stated that his purpose in writing The Common Law Tradition was to dispel a "crisis in confidence" of the Bar in our appellate courts and the cynical view that appellate judges' decisions represent little more than naked will, later merely rationalized in the writing of the opinion.(44).
The Common Law Tradition was based upon Llewellyn's study of literally hundreds upon hundreds of high state court decisions handed down over some three decades.(45) Obviously, given Llewellyn's own field of scholarship, many of the decisions bore some relationship to commercial law. Llewellyn hero-worshiped Cardozo in his role as a common law judge sitting on the New York Court of Appeals.(46) He also held in high esteem other New York judges, lauding specifically the writings of Cuthbert Pound, and expressing respect for Judges John T. Loughren, Stanley H. Fuld and Charles D. Breitel, then on the Appellate Division, First Department.(47)
Llewellyn concluded from his intensive study of cases that the work of many modern competent appellate courts "is reckonable first, and on a relative scale, far beyond what any sane man has any business expecting from a machinery devoted to settling disputes self-selected for their toughness. It is reckonable second, and on an absolute scale, quite sufficiently for skilled craftsmen to make useable and valuable judgments about likelihoods".(48)
Llewellyn found that reckonability, subsuming clarity, predictability and stability, was achieved by judges who employed an appellate decisional process and practice he called the "Grand Style", used originally by the pre-Civil War judges generally acknowledged by both academic and practicing lawyers as the early giants of the law, notably England's Lord Mansfield, Chief Justice Marshall and Chancellor Kent of New York.(49) The Grand Style for Llewellyn was not at all a literary technique, and not only a manner of decision-writing, but also a manner of judicial decision-making.(50) Llewellyn contrasted the Grand Style in content and analysis with judicial Formalism, in vogue during the latter half of the 19th Century and early 20th Century, in which opinions did little more than intone legal propositions as though they inevitably dictated the result.(51)
What, then, are the elements of Llewellyn's Grand Style of adjudication and opinion-writing? Llewellyn suggests that it begins with respectful yet critical review of the full range of precedents to extract the governing principle for "bringing large-scale order into the rules", but also for achieving "a broad generalization which must yield patent sense as well as order".(52) Then the rule to come from the decision must be examined on a "policy" basis, for its prospective consequences in application.(53) The Grand Style is thus partly a process of refining, distilling and purifying the work of the past. It involves
"the constant questing for better and best law to guide the future, but the better and best law is to be built on and out of what the past can offer; the quest consists in a constant re-examination and reworking of a heritage, that the heritage may yield not only solidarity but comfort for the new day and for the morrow".(54)
The remaining key piece of the Grand Style process requires the appellate judge to identify the appropriate "situation sense" or situation "type" of the case at hand.(55) Llewellyn's concept of situation sense has been described as one of the more obscure and controversial teachings of The Common Law Tradition.(56) I read that phrase and related phrases used interchangeably, as referring to the truly operative facts, and the appropriate analytical framework in which to view those facts, on both of which the proper disposition of the case will turn.(57) A judge selects the "type-situation-facts"(58) through knowledge of, e.g., the social or commercial realities in which the parties conducted their affairs and the commonly held values in that milieu, and by immersing herself in the analogous factual and legal scenarios of the full range of earlier precedents.(59) In the Grand Style, the opinion will identify the situation sense of the case,(60) contrasted with the Formal style which abjured any extended recitation of the facts or of commercial realities.(61)
Using the teachings on the Grand Style of The Common Law Tradition as a basis for comment, I want to discuss some of our Court's current business and commercial law output insofar as it may illustrate Llewellyn's prescription for achieving the goal of "reckonability" in business and commercial law appellate decision-making. In doing so, I reiterate Llewellyn's own caveat on the use of the Grand Style, that it does not "guarantee an outcome or the use of a reason or the production of a rule of law which I like or agree with ***. What it reaches is the best reason the particular court can manage at the particular time for the particular question".(62) Therefore, no intimation on the merits of the opinions examined should be taken from the discussion that follows.
I have chosen two cases from the Court's 1996 term, NBT Bancorp v Fleet/Norstar Financial Group,(63) decided a few months before the beginning of the annul survey year, and MRF Resources Ltd. v Merchants Bank of New York,(64) decided in the survey year, each having personal advantages for my discussion here -- I did not sit on NBT Bancorp, having written a partial dissent on the merits of that litigation at an earlier stage as a justice of the Appellate Division, Third Department(65), and the opinion in MRF Resources Ltd. was written by then Judge Richard D. Simons who, having retired at the end of the 1996 term, is not a present colleague on the Court.
NBT Bancorp v Fleet/Norstar Financial Group involved application of existing business tort doctrine in the modern mergers-acquisitions context. NBT Bancorp and Fleet/Norstar were rival suitors for a friendly takeover of upstate Central National Bank. NBT won the first round, convincing Central National's management and a bare majority of its Board of Directors that it was the better merger partner.(66) A merger agreement between NBT and Central National was entered into, conditional upon obtaining the statutorily required approval of the holders of 2/3 of the outstanding Central National shares, and obligating that bank and its management to use best efforts to obtain approval.(67) Undaunted, Fleet/Norstar joined with the dissenting minority Directors to wage a proxy contest to defeat approval.(68) The merger deal with NBT unraveled even before the shareholders meeting, when it became clear that Central National could obtain better terms from Fleet/Norstar than the merger agreement had provided.(69) NBT then brought suit in tort for the lost profits it would have achieved had the merger with Central National Bank been consummated. It relied on three theories of recovery: Fleet/Norstar's alleged inducement of a breach of the merger agreement, intentional interference with contractual relations and interference with prospective business relations.(70)
There was no dispute that Fleet/Norstar intentionally acted to defeat shareholder approval of the NBT-Central National merger. However, NBT was unable to produce evidence of any actual breach of the merger agreement by Central National or its management, both having actively promoted shareholder approval of the agreement.(71) NBT was also unable to point to evidence (to defeat a motion for summary judgment) that Fleet/Norstar employed "wrongful means" to defeat shareholder approval.(72) These failures of proof effectively disposed of NBT's claims under its first and third theories of recovery.(73) That left remaining before the Court of Appeals the principal issue of whether, without proof of wrongful means used by Fleet/Norstar to block the merger, establishment of an actual breach of the merger agreement was necessary to sustain a cause of action for tortious interference with contractual relations as applied in this contemporary setting of a competition between two corporations for the acquisition of a third.
The Court in NBT Bancorp v Fleet/Norstar Financial Group concluded that proof of an actual breach of the merger agreement was required for
NBT to recover for interference with its Central National contractual relations, unless Fleet/Norstar had employed wrongful means in doing so.(74) In its decision, the Court's initial approach was consistent with Llewellyn's guidance to comprehensively "rework the heritage" of past New York precedents, particularly in reanalyzing the holding and rationale of the seminal case of Guard-Life Corp. v Parker Hardware Manufacturing Corp.(75) The NBT Bancorp opinion also identifies the appropriate situation sense in the analytical framework of a tortious interference with contractual relations claim, namely, that the operative facts for resolving the case were that the plaintiff and defendant were in legitimate competition for the acquisition of Central National and that, as to the aborted merger deal for which NBT sought recovery, NBT had nothing more than an expectancy of success, entirely contingent upon shareholder approval.(76) As Llewellyn further suggested, the Court then considered its ruling from a "policy" standpoint, in terms of its prospective consequences in application. It concluded that the rule of the case struck the proper balance between the values of protection of enforceable contractual rights and lawful competition. It found that the rule as applied "promotes the integrity of contract as well as integrity of the marketplace".(77) Additionally, in the modern merger acquisition context, the holding was deemed particularly consistent with the fiduciary duty of corporate managers and directors to present all higher offers for shareholder consideration.(78)
MRF Resources Ltd. v Merchants Bank of New York involved interpretation of articles 4 and 4-a of the Uniform Commercial Code in a case of first impression.(79) Llewellyn's approach to statutory construction cases, with the overriding aim of achieving reckonability, essentially prescribed the same uses of Grand Style techniques as he would have employed in common-law adjudications. Llewellyn urged that courts defer to the legislative prerogative to set policy, and that judges should "freely" construe the statute to implement legislative purpose.(80) Again, Llewellyn contrasted this use of the Grand Style with the Formal period where "statutes tended to be limited or even eviscerated by wooden and literal reading, in a sort of long-drawn battle between a balky, stiff-necked, wrong-headed court and a legislature which had only words with which to drive that court".(81) Llewellyn advocated special attention to language and basic design of the legislation, "to quarry out of a legislative text the best sense which the text permits".(82)
The statutory text at issue in MRF Resources Ltd. v Merchants Bank of New York was, of course, portions of Llewellyn's own Uniform Commercial Code. A diamond dealer named Galit Diamond Inc., a third-party defendant in the case, asserted a counterclaim against defendant Merchants Bank, where both Galit and plaintiff MRF Resources Limited had accounts. The pertinent facts were undisputed. Galit presented to the bank for payment an MRF Resources check for some $58,000, certified by the bank. The bank promptly posted the check to Galit's account. MRF Resources then notified the bank of its claim that the check was a forgery. In response, the bank, concededly without legal authority, placed a temporary hold on Galit's account for a period of four days, without notifying its customer. In the meantime, Galit initiated a funds transfer to its Israeli diamond supplier out of that account. The transfer was delayed one week because of the bank's hold on the Galit account. As a result of the delay, Galit lost its valuable business relationship with the Israeli supplier thereby seriously damaging its ability to stay in business.(83) It sued the bank for those consequential damages.
In MRF Resources Ltd. v Merchants Bank of New York, there was no dispute that the delay in the bank's execution of the wire transfer to Galit's supplier violated UCC 4-A-305(3). However, that section only permits recovery of consequential damages in the event of a prior express written agreement of the bank, absent here.(84) Galit therefore urged that in freezing its account, the bank's wrongful conduct was more than a mere delay in funds transfer, rather, it was, in effect, a wrongful dishonor of an "item" which, as a customer of the bank, permitted Galit to recover its consequential damages under UCC 4-402.(85) The Court of Appeals rejected Galit's theory. Factually, the record did not establish a wrongful dishonor based upon the supposition that the bank somehow decertified the $58,000 certified check deposited in the Galit account. The check was duly paid by the bank, which never attempted later to debit the Galit account in that amount, or otherwise to withdraw the proceeds of the check. The Court pointed out that the hold on the Galit account temporarily deprived Galit of use of all of the funds in the account, not merely the proceeds of the check.(86)
Similarly, the Court concluded that the wrongful hold on the Galit account was by itself not the dishonor of an item since, under the language of articles 3 and 4 of the Code, a bank account simply cannot constitute an "instrument" or an "item".(87) Hence, Galit's remedy if any, remained under UCC article 4-A and, because there was no prior express written agreement of the bank subjecting it to a claim for consequential damages, no remedy was available for Galit's serious loss resulting from the bank's illegal hold on its account.
In MRF Resources Ltd. v Merchants Bank of New York, the Court once more satisfied the requirements of Llewellyn's prescription for reckonability. It precisely identified the situation type under which the Galit claim fell, based upon a careful review of the operative facts and an analysis of the relevant statutory language. The Court refused to be swayed by the emotional pull for fairness in Galit's favor, to bend or twist the text of the Code provisions in order to satisfy the "fireside equities", as Llewellyn warned against.(88) Implicitly in the decision, the Court recognized the superior value, articulated by Judge Simons (in a decision handed down at the end of the 1995 term), of preserving the certainty and predictability of application of the Code's commercial paper and banking provisions: "If the policies and banking practices sought to be achieved by article 4 of the Uniform Commercial Code are to be satisfied, they cannot be subordinated to equitable arguments that might be persuasive in other circumstances".(89)
Whether or not the members of the Court were directly influenced by Llewellyn's prescribed Grand Style in the two sample cases is unknown to me and essentially immaterial. What is important is that, in fact, the Court was striving for reckonability in the commercial and business law appellate process through techniques which Llewellyn would have approved of -- incisive distillation of the precedents, identification of the critical factual circumstances of the events giving rise to the disputes, and a candid weighing of competing values and considerations of probable results in future application of the Court's holdings.
Thus, in my view, in commercial and business law cases "self-selected for their toughness",(90) the Court fulfilled its function of providing "skilled craftsman [with the tools] to make useable and valuable judgments about likelihoods."(91) These goals are especially important in decisions that affect the commercial and business community, where the law must of necessity be readily available as a practical code of behavior guiding everyday economic transactions. Viewed in this context, the Court of Appeals' contribution in the business and commercial arena during this survey year was, indeed, significant.
1. Associate Judge, New York Court of Appeals, State of New York. I wish to acknowledge with deep appreciation the invaluable assistance of my former and present law clerks, Laura Etlinger and Tim O'Neal Lorah, in the preparation of this Forward.
2. Brown v State of New York, 89 NY2d 172 (1976).
3. 89 NY2d 283 (1996), cert. granted, ____US____, 117 S Ct 1817 (1997) (decision pending) (Privileges and Immunities Clause, US Const. Art. IV, ?2).
4. 90 NY2d 57 (1997) (Establishment Clause, US Const. Amend I).
5. 90 NY2d 1 (1997) (Takings Clause, US Const. Amend V), cert. denied, __ US __, 118 S Ct 50, reh'g denied, __ US __, 66 USLW 3386 (1997).
6. 89 NY2d 535 (1997) (same), cert. dismissed, __ US __, 118 S Ct 2 (1997).
7. 90 NY2d 153 (1997) (Commerce Clause, US Const. Amend XIV).
8. 89 NY2d 692 (1997) (Free Speech Clause, US Const. Amend I).
9. 89 NY2d 380 (1996) (Home Rule Provision, New York Const., Article IX).
10. Morgan v State of New York, 90 NY2d 471 (1997), rearg denied sub nom. Chimerine v World Champion John Chung Tae, 90 NY2d 936 (1997).
11. Matter of Janes [Lincoln First Bank], 90 NY2d 41 (1997), rearg denied, 90 NY2d 885 (1997).
12. 89 NY2d 472 (1997).
13. Ceremony Marking Retirement of Chief Judge Charles D. Breitel, 45 NY2d vii, ix (1978).
14. Judith S. Kaye, Introduction to Commercial Litigation in New York State Courts 1, 6-8 (Robert L. Haig ed., West 1995).
15. 87 NY2d 614 (1996).
16. 87 NY2d 744 (1996).
17. 89 NY2d 257 (1996).
18. 90 NY2d 266 (1997).
19. 89 NY2d 530 (1996), reh'g denied, 89 NY2d 917 (1996).
20. 89 NY2d 244 (1996).
21. UCC 4-A-305(3).
22. 90 NY2d 322 (1997), rearg denied, 90 NY2d 937 (1997).
23. Matter of New York Agency of Bank of Credit & Commerce International, S.A., 90 NY2d 410 (1997).
24. 89 NY2d 31 (1996), cert. denied, __ US __, 117 S Ct 1250 (1997).
25. See, Dawson v White & Case, 88 NY2d 666 (1996) (establishing that the valuation of a law partnership may include goodwill upon dissolution or partner withdrawal).
26. See, Standard Funding Corp. v Lewitt, 89 NY2d 546 (1997) (holding that authority granted an insurance agent to write insurer's policies and collect premiums did not confer either actual or apparent authority to enter into premium financing agreements on behalf of the insurer).
27. See, Matter of Primax Intl. Corp. v Wal-Mart Stores, 89 NY2d 594 (1997)(holding that a broad arbitration clause in a prior contract survives the expiration of the contract, as to disputes subsequently arising thereunder, and is not affected by a general merger clause in a subsequent contract between the parties).
28. See, Northville Indus. Corp. v National Union Fire Ins. Co., 89 NY2d 621 (holding that an unknown, gradual, protracted discharge of a pollutant does not qualify for the "sudden and accidental discharge" exception to the pollution exclusion clause of a standard commercial general liability policy)
29. See, Itri Brick & Concrete Corp. v Aetna Cas. & Sur. Co., 89 NY2d 786 (1997) (holding that when a general contractor and a subcontractor are both contributorily at fault in causing an accident, an indemnification agreement between them holding the general contractor harmless irrespective of fault is unenforceable under General Obligations Law ?-322.1(1), even as to the portion of liability attributable to the subcontractor's wrongdoing), rearg denied, __ NY2d __, 1997 NY LEXIS 3254 (1997) and rearg denied sub nom. Stottlar v Ginsburg Dev. Corp., __ NY2d __, 1997 NY LEXIS 3270 (1997).
30. The 1996-1997 survey year includes decisions handed down between August 1996 and July 1997, while the Court's 1996 Term runs from January to December 1996.
31. Ronnen v Ajax Elec. Motor Corp., 88 NY2d 582 (1996).
32. Lama Holding Co. v Smith Barney, Inc., 88 NY2d 413 (1996).
33. Marx v Akers, 88 NY2d 189 (1996).
34. Hanna v First Nat'l Bank of Rochester, 87 NY2d 107 (1995).
35. NBT Bancorp v Fleet/Norstar Financial Group, 87 NY2d 614 (1996).
36. Parma Tile Mosaic & Marble Co. v Estate of Fred Short, 87 NY2d 524 (1996), mot. to amend remittitur denied, 88 NY2d 872 (1996).
37. Foster v Churchill, 87 NY2d 744 (1996).
38. A.J. Temple Marble & Tile, Inc. v Union Carbide Marble Care, Inc., 87 NY2d 574 (1996).
39. Brooke Group Ltd. v JCH Syndicate 488, 87 NY2d 530 (1996); Matter of Beckman v Greentree Securities, Inc., 87 NY2d 566 (1996), reh'g denied, 87 NY2d 1056 (1996).
40. See, Grant Gilmore, The Ages of American Law 81-85 (1974).
41. Id., at 78.
42. See, William Twining, Karl Llewellyn and The Realist Movement 204, 266 (1973).
43. Mark Tushnet, Legal Scholarship: Its Causes and Cure, 90 Yale L.J. 1205, 1210 (1981).
44. Karl N. Llewellyn, The Common Law Tradition 3-4, 13 (1960).
45. Id., at 508.
46. Lord Mansfield and Cardozo are the only judges to whom separate sections of the Common Law Tradition are devoted (see, id., at 404-445).
47. Id., at 49, 207, 139, 371-371.
48. Id., at 4.
49. See, id.,at 36.
50. Id., at 5, 36; see, Gilmore, op. cit., at 12; Twining, op. cit., at 210.
51. The Common Law Tradition, op. cit., at 5-6, 38, 186; see also, Twining, op. cit., at 211-212.
52. The Common Law Tradition, op. cit., at 36.
55. Id. at 121-122.
56. Twining, op. cit., at 217-226.
57. See, The Common Law Tradition, op. cit., at 122.
59. See, e.g., id., at 123-4, 127.
60. Id., at 135-136; see, id., at 123 n158, 126.
61. Id., at 38-39.
62. Id., at 139.
63. 87 NY2d 614 (1996).
64. 89 NY2d 244 (1996).
65. See, 159 AD2d 902, 911 (3d Dept 1990) (Levine, J., concurring in part and dissenting in part), appeal dismissed, 76 NY2d 866 (1990) and appeal dismissed, 76 NY2d 982 (1990), recons. denied, 77 NY2d 874 (1991).
66. 87 NY2d, at 618.
68. Id., at 618-619.
69. Id., at 619.
71. See, id., at 620.
72. Id., at 624-625.
73. See, id., at 620 (NBT did not challenge dismissal of inducement to breach claim because it conceded there had been no breach of the merger agreement), 621 (tortious interference with prospective business relations requires culpable conduct).
74. 87 NY2d, at 620-624.
75. 50 NY2d 183 (1980); see, 87 NY2d, at 621-622.
76. See, id., at 622-623.
77. Id., at 623.
79. 89 NY2d 244 (1996).
80. The Common Law Tradition, op. cit., at 372-373.
81. Id., at 374.
82. Id., at 381-382.
83. 89 NY2d, at 247.
84. UCC 4-A-305(3); see, 89 NY2d, at 247.
85. 89 NY2d, at 248.
88. See, The Common Law Tradition, op. cit., at 245, 268.
89. Hanna v First Nat'l Bank of Rochester, 87 NY2d 107, 122 (1995).
90. See, accompanying text, supra, at n47.