Blogs

Monthly Archives: September 2019

Posted: September 28, 2019

Tenant Could Not Bring and Then Consolidate Two Actions to Avoid No Counterclaims Provision in Lease

On September 20, 2019, Justice Borrok of the New York County Commercial Division issued a decision in W.J. Enterprise, Inc. v. Nomad 28th St. LLC, 2019 NY Slip Op. 32761(U), holding that a tenant could not bring and then consolidate two actions to avoid a no counterclaims provision in a lease, explaining: WJ argues that,... Read more »

Posted: September 27, 2019

Yellowstone Injunction Denied Because Failure to Have Insurance Was Not Curable

On September 12, 2019. Justice Borrok of the New York County Commercial Division issued a decision in Booston LLC v. 35 W. Realty Co., LLC, 2019 NY Slip Op. 32716(U), denying a Yellowstone injunction because a failure to have insurance coverage was not curable, explaining: In addition, putting aside the No Waiver clause that dictates... Read more »

Posted: September 26, 2019

Lender – Borrower Relationship Does Not Give Rise to Fiduciary Duty

On September 11, 2019, Justice Cohen of the New York County Commercial Division issued a decision in PDL Biopharma, Inc. v. Wohlstadter, 2019 NY Slip Op. 32693(U), holding that a lender – borrower relationship did not give rise to a fiduciary duty, explaining: Defendants’ third and fourth counterclaims for breach of fiduciary duty and tortious... Read more »

Posted: September 25, 2019

Corporate Officer Liable for Business Tort Only to Extent of Personal Participation in and Knowledge of It

On September 9, 2019, Justice Borrok of the New York County Commercial Division issued a decision in Itria Ventures LLC v. Provident Bank, 2019 NY Slip Op. 32695(U), holding that a corporate officer could be held liable for a business tort only to the extent of the officer’s personal participation in, and knowledge of, the... Read more »

Posted: September 24, 2019

Additional Notices of Claim Related Back to Original Summons With Notice

On September 17, 2019, the First Department issued a decision in HSBC Bank USA v. Merrill Lynch Mtge. Lending, Inc., 2019 NY Slip Op. 06567, holding in an RMBS put-back action that additional notices of claim related back to the date the action was brought, explaining: Contrary to the court’s conclusion, claims involving the loans... Read more »

Posted: September 23, 2019

Issues of Fact Preclude Summary Judgment on Insured’s Breach of Duty to Cooperate

On September 13, 2019, Justice Borrok of the New York County Commercial Division issued a decision in Colony Ins. Co. v. International Contr. Servs., LLC, 2019 NY Slip Op 32717(U), holding that issues of fact precluded summary judgment on a liability insurer’s disclaimer based on the insured’s failure to cooperate with the defense. In the... Read more »

Posted: September 23, 2019

First Department Recognizes Narrow Exception to Rule that Privilege Rules Applied to Evidence Are Those of Forum in Which Evidence Will Be Used

On September 17, 2019, the First Department issued a decision in Ambac Assur. Corp. v. Nomura Credit & Capital, Inc., 2019 NY Slip Op. 06574, recognizing a narrow exception to the rule that the law regarding the attorney-client privilege applied to evidence is that of the forum in which the evidence will be used, explaining:... Read more »

Posted: September 21, 2019

Court Erred in Vacating Default When There Was No Reasonable Excuse for the Default

On September 11, 2019, the Second Department issued a decision in EMC Mtge. Corp. v. Walker, 2019 NY Slip Op. 06474, holding that it was error to vacate a default when there was no reasonable excuse for the default, explaining: In order to vacate a default in appearing at a scheduled court conference, a plaintiff... Read more »