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October 17, 2022
Yellowstone Injunction Motion Denied Because Tenant Failed to Show Ability to Cure
Written by:
Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. Turner
On September 28, 2022, Justice Andrea Masley of the New York County Commercial Division issued a decision in Urban Commons 2 W. LLC v. Battery Park City Authority, 2022 N.Y. Slip Op. 33268(U), denying a commercial tenant's motion for a Yellowstone inunction on the ground that the tenant failed to show that it had funds available to cure its default in the payment of rent if the landlord prevailed in the action, explaining: Read More
July 27, 2022
Commercial Lease Requiring Tenant to Maintain $2 Million of Insurance Coverage in a "Single Limit" Was Not the Same as Requiring this Coverage "Per Incident"
Written by:
Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. Turner
On June 27, 2022, Justice Margaret Chan of the New York County Commercial Division issued a decision in Booston LLC v. 35 West Realty Co., LLC, Index No. 654308/2019, holding that a commercial lease that required tenant to maintain $2 million of general-liability coverage in a "single limit" permitted tenant to maintain $2 million of coverage in the aggregate, rather than $2 million "per incident," explaining: Read More
July 18, 2022
Allegations that Defendant Encumbered Its Interests in Development Project to Obtain Financing States Breach of Contract Claim
Written by:
Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. Turner
On May 9, 2022, in a decision and order in AmBase Corp. v. 111 W. 57th Sponsor LLC, 2022 NY Slip. Op. 31503(U), Justice Joel M. Cohen denied Defendant’s motion to dismiss a breach of contract cause of action premised on Defendant’s obtaining financing for a development project to fund capital calls that allegedly encumbered Defendant’s interest in the project. Read More
April 18, 2022
Estate of Deceased Partner Could Not Bring Action Regarding Forged Deed Owned by the Partnership
Written by:
Jeffrey M. Eilender, Samuel L. Butt, Joshua Wurtzel,
In a decision dated January 12, 2022, the Second Department in Abruzzi v. Bond Realty, Inc., 2022 NY Slip Op 00156, held, inter alia, that that portion of the complaint seeking a judgment declaring a deed to certain real property to be void and to recover damages for fraudulent concealment and unjust enrichment was properly dismissed on summary judgment. The property at issue was held by a partnership and the deed which purported to transfer the property from the partnership to a corporation included the signature of one partner who had been dead for approximately 23 years. The Court explained: Read More
April 5, 2022
One-Action Rule Does Not Bar Simultaneous U.C.C. Foreclosure and Action to Foreclose on Mortgage and Recover Deficiency Judgment from Guarantors
On February 28, 2022, Justice Elizabeth H. Emerson of the Suffolk County Commercial Division issued a decision in Nebari Natural Resources Credit Fund I, LP v. Speyside Holdings, LLC, 2022 N.Y. Slip Op. 50164(U), holding that New York's one-action rule does not bar a lender from conducting a U.C.C. foreclosure while simultaneously bringing an action to foreclose on a mortgage and recover a deficiency judgment under various "bad boy" guaranties, explaining: Read More
March 9, 2022
Mezzanine Lender Cannot Prevent Mortgage Lender From Foreclosing on Real Property
On February 14, 2022, Justice Andrew Borrok of the New York County Commercial Division issued a decision in U.S. Bank N.A. v. 342 Prop. LLC, 2022 N.Y. Slip Op. 30488(U), holding that, absent a controlling clause in an intercreditor agreement, a mezzanine lender had no basis to contest the mortgage lender's right to foreclose on the real property securing the mortgage loan, explaining: Read More
March 7, 2022
Ambiguous Lease Clause Could Entitle Commercial Tenant to Rent Abatement During COVID Period
On February 24, 2022, the First Department issued a decision in Schulte Roth & Zabel LLP v. Metropolitan 919 3rd Avenue LLC, 2022 N.Y. Slip Op. 01261, holding that a clause in tenant-law firm Schulte Roth & Zabel's commercial lease entitling the tenant to a rent abatement under designated circumstances was ambiguous, and so the landlord's motion to dismiss the tenant's complaint for a rent abatement during the COVID period when most of the tenant's employees were working remotely was properly denied, explaining: Read More
December 15, 2021
U.C.C. Foreclosure Sale Held During December Holiday Season Not Commercially Unreasonable
On December 8, 2021, Justice Leon Ruchelsman of the Kings County Commercial Division issued a decision in Lincoln Street Mezz II, LLC v. One Lincoln Mezz 2 LLC, Index No. 530492/2021, denying a mezz borrower's motion for a preliminary injunction staying a U.C.C. foreclosure sale scheduled for December 20, 2021, and rejecting the mezz borrower's arguments that the sale was commercially unreasonable because, among other things, it was "scheduled to take place right before and indeed during the holiday season," and thus gave prospective buyers "insufficient time" to "obtain the necessary financing," explaining: Read More
October 18, 2021
Failure to Challenge All Grounds of Summary Judgment Motion Made Appeal Academic
On September 29, 2021, the Second Department issued a decision in Dorce v Family Dollar Stores of N.… Read More
August 27, 2021
Co-Op Owner Required to Pay Use and Occupancy For Maintenance Pendente Lite
On August 11, 2021, the Second Department issued a decision in Tavor v. Lane Towers Owners, Inc., 20… Read More
August 25, 2021
Owners of Residential Units in Luxury Condominium Were Third-Party Beneficiaries of Clause in Ground Lease Concerning Quality of Hotel To Be Operated on Lower Floors of Building
On August 5, 2021, the First Department issued a decision in Residential Board of Millennium Point v… Read More
June 16, 2021
Statute Barring Lease Provisions That Prohibit Tenants from Seeking a Yellowstone Injunction Does Not Apply to Leases Effective Before the Statute was Enacted
On April 9, 2021, Justice Knipel of the Kings County Commercial Division issued a decision in 159 MP… Read More
June 15, 2021
Liquidated Damages Provision Based on Notice of Intention to Redevelop Property Not Enforceable When Tenancy Not Terminated
On May 25, 2021, Justice Borrok of the New York County Commercial Division issued a decision in Prad… Read More
June 13, 2021
Broker Not Entitled to Commission Because it was not the Procuring Cause of the Sale
On May 20, 2021, the First Department issued a decision Capin & Assoc., Inc. v. Herskovitz, 2021… Read More
June 9, 2021
Action Dismissed As Impermissible Duplicative Foreclosure Action
On May 5, 2021, Justice Knipel of the Kings County Commercial Division issued a decision in Flushing… Read More
June 4, 2021
Summary Judgment of Foreclosure Denied Because of Lack of Admissible Evidence of Payment Default
On May 7, 2021, Justice Knipel of the Kings County Commercial Division issued a decision in Majestic… Read More
May 29, 2021
Yellowstone Injunction Undertaking Cannot Be Used to Pay Use and Occupancy
On May 25, 2021, the First Department issued a decision in Booston LLC v. 35 W. Realty Co., LLC, 202… Read More
May 27, 2021
Pandemic Does Not Excuse Commercial Tenant's Obligations Under Lease
On May 19, 2021, Justice Cohen of the New York County Commercial Division issued a decision in Hugo … Read More
May 20, 2021
Deficiencies in Notice and Demand to Cure Bar Eviction
On April 2, 2021, Justice Walker of the Erie County Commercial Division issued a decision in Ronald … Read More
April 27, 2021
Party Asserting Unclean Hands Defense Must Have Been Injured by the Plaintiff's Misconduct
On April 7, 2021, the Second Department issued a decision in Toobian v. Golzad, 2021 NY Slip Op. 021… Read More
