On September 25, 2019, the Second Department issued a decision in Redbridge Bedford, LLC v 159 N. 3rd St. Realty Holding Corp., 2019 NY Slip Op 06809, holding that a defendant had failed to provide an adequate basis for vacating its default, explaining: In order to be entitled to enter a default judgment upon a... Read more »
Blogs
Monthly Archives: September 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 »
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 »
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 »
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 »
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 »
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 »
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 »
Senior Lender Did Not Have Special Duty to Subordinated Junior Lender
On September 9, 2019, Justice Emerson of the Suffolk County Commercial Division issued a decision in Saltini v. North Sea Dev. LLC, 2019 NY Slip Op. 51456(U), holding that a senior lender did not have a special duty to a subordinated lender, explaining: In support of the ninth cause of action for breach of fiduciary... Read more »
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 »