Monthly Archives: September 2021

Posted: September 29, 2021

Summary Judgment for Mechanic’s Lien Inappropriate Where Defendant Failed to Account for All Items Listed in Lien Statement

On September 15, 2021, the Second Department issued a decision in J&M Indus., Inc. v Red Apple 180 Myrtle Ave. Dev., LLC, 2021 NY Slip Op 04966, holding that where a defendant moved for summary judgment on a mechanic’s lien on the grounds that the plaintiff executed a series of releases in connection with payments... Read more »

Posted: September 27, 2021

Conflicting Expert Opinions Sufficient to Defeat Summary Judgment in Medical Malpractice Case

On May 2, 2019,  Justice Jamieson of the Westchester County Commercial Division issued a decision in Casola v Northern Westchester Hosp. Assn., 2019 NY Slip Op 34199(U), holding that in a medical malpractice case competing expert opinions create a triable issue of fact sufficient to defeat a motion for summary judgment, explaining: It is well-settled... Read more »

Posted: September 24, 2021

Claim for Tortious Interference With Business Relations Fails Because Defendant Acted In Self Interest

On July 28, 2021, the Second Department issued a decision in Stuart’s LLC v. Edelman, 2021 N.Y. Slip Op. 04569, holding that the trial court erred in holding the defendant liable for tortious interference with business relations when the evidence at trial showed that the defendant’s conduct was motivated by self interest, explaining: “To prevail on... Read more »

Posted: September 22, 2021

Motion Court Erred in Considering Dismissal Motion Raised for First Time on Reply

On August 18, 2021, the Second Department issued a decision in Grocery Leasing Corp. v. P&C Merrick Realty Co., LLC, 2021 N.Y. Slip Op. 04701, holding that the motion court erred in granting the defendant’s motion to dismiss under C.P.L.R. 3211 when the defendant initially moved for summary judgment under C.P.L.R. 3212 and stated–for the first... Read more »

Posted: September 20, 2021

Attorneys’ Fees Improperly Awarded Because Plaintiffs Were Not Prevailing or Successful Parties

On August 25, 2021, the Second Department issued a decision in Kefalas v. Valiotis, 2021 NY Slip Op. 04750, modifying an award of attorneys’ fees and holding: [T]he Supreme Court should not have awarded attorneys’ fees to the plaintiffs under the terms of the 2012 Purchase Agreement. That provision only allows for an award of... Read more »

Posted: September 17, 2021

No-Action Provisions Did Not Mandate Dismissal Of Plaintiffs’ Claims

On August 16, 2021, Justice Joel M. Cohen issued a decision in Audax Credit Opportunities Offshore Ltd. v TMK Hawk Parent, Corp., 2021 NY Slip Op 50794(U), holding that No-Action provisions did not mandate dismissal of Plaintiffs’ claims.  The Court concluded: [N]o-action clauses typically are “not unenforceable as violative of public policy, given [their] salutary... Read more »

Posted: September 15, 2021

Guaranties For Payment And Performance Are Not Instruments For Payment Of Money Only And Therefore Do Not Provide A Basis For Summary Judgment In Lieu of Complaint Under CPLR § 3213

On September 3, 2021, in Bank of America, N.A. v. Filho et al., N.Y. Sup. Ct. Index No. 654603/2019, Justice Andrea Masley issued a Decision and Order granting the motion of certain defendants (“Guarantors”) to reargue and renew pursuant to CPLR 2221 and, upon reargument and renewal, denying Plaintiff’s motion for summary judgment in lieu... Read more »

Posted: September 13, 2021

Courts Will Not Imply a Contract When There Is an Express Written Agreement

On August 24, 2021, Justice Ostrager of the New York Commercial Division issued a decision in Tri-City ValleyCats, Inc. v. Houston Astros, Inc., 2021 NY Slip Op 50802(U), holding that while “New York law recognizes the concept of a binding agreement implied from the parties’ words and conduct”, none will be “implied in fact where... Read more »

Posted: September 10, 2021

RPAPL Broad Standing Rules Inapplicable Where Claim Really About Ownership of LLC

On August 26, 2021, the First Department issued a decision in FGP 1, LLC v Dubrovsky, 2021 NY Slip Op 04789, affirming dismissal of a counterclaim for lack of standing holding that counterclaim plaintiffs mischaracterize their claim as one for a declaration to quiet title when it really involves ownership of a Delaware LLC, explaining:... Read more »

Posted: September 3, 2021

Labor Law § 240 Imposes Absolute Liability Where a Violation of the Statute is a Proximate Cause of the Injury

On August 26, 2021, the Fourth Department issued a decision in Miller v. Rerob, LLC, 2021 NY Slip Op 04864, holding that New York Labor Law § 240 imposes absolute liability on a contractor or owner where a violation of the statute is the proximate cause of an accident, explaining: It is well settled that... Read more »