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Posted: July 27, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerPreliminary Injunction Granted Restraining Defendant's Assets When Those Assets Were Subject to Perfected Security Interest
On June 12, 2023, Justice Margaret Chan of the New York County Commercial Division issued a decision in White Oak Commercial Finance, LLC v. EIA Inc., 2023 NY Slip Op 31973(U), granting a preliminary injunction restraining a defendant's assets (other than for "reasonable living expenses") and holding that the plaintiff satisfied the irreparable-harm requirement because it was a secured creditor and had a lien on the defendant's assets, explaining: Read More
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Posted: July 21, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerGuarantor's Testimony That Conflicted With Contemporaneous Communications Concerning Guaranty Does Not Create Triable Issue of Fact
On June 5, 2023, Justice Andrew Borrok of the New York County Commercial Division issued a decision … Read More
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Posted: July 19, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerGuaranty of Both Payment and Performance Did Not Qualify as Instrument for Payment of Money Only Under C.P.L.R. 3213
On May 26, 2023, Justice Margaret A. Chan of the New York County Commercial Division issued a decision in Itria Ventures LLC v. Singh Oil Corp., 2023 NY Slip Op 31809(U), denying a motion for summary judgment in lieu of complaint against guarantors on the ground that the guaranty was one of both payment and performance, and was thus not an obligation for the payment of money only, explaining: Read More
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Posted: July 17, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerAttorney Lacked Apparent Authority to Represent Client When All Representations Concerning Authority Came From Attorney, Rather Than Client
On June 5, 2023, Justice Robert R. Reed of the New York County Commercial Division issued a decision in Dragons 516 Ltd v. Knights Genesis Investment Ltd., Slip Op. 50541(U), holding that an attorney entering a stipulation on behalf of a party lacked apparent authority to do so because all representations concerning the attorney's authority came from the attorney (the agent), rather than the client (the principal), but also holding that the attorney may have had actual authority and setting a hearing to resolve the issue, explaining: Read More
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Posted: July 14, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Granted Default Judgment Against LLC That Failed to Retain Counsel
On June 7, 2023, Justice Joel M. Cohen of the New York County Commercial Division issued a decision and order on motion in Downtown Special Situations Holdings, LLC v. Mills Dental-Downtown Brooklyn, PLLC, 2023 NY Slip Op 31930(U), granting plaintiff’s motion for default judgment against defendants after they failed to retain new counsel following the withdrawal of their prior counsel and a 45-day stay. The Court explained: Read More
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Posted: July 12, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Extended Time to Oppose Motion Marked “Fully Submitted – No Opposition” and Rejected Cross-Motion for Fees and Costs
In an Opinion, dated June 5, 2023, in Amsterdam Capital Solutions, LLC v. WeWork Companies Inc., 2023 NY Slip Op 50543(U), Justice Robert R. Reed of the New York County Commercial Division granted plaintiff’s motion seeking an extension of time to file a partial opposition to defendant’s motion to dismiss and denied defendant’s cross-motion for costs and attorneys’ fees. The Court explained: Read More
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Posted: July 10, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerDefendants Not Required to Demonstrate Merit of Proposed Counterclaim on Motion for Leave to Amend Answer
In an Opinion, dated June 6, 2023, in Vertiv, Inc. v. Naithani, 2023 NY Slip Op 50548(U), Justice Robert R. Reed of the New York County Commercial Division granted defendants’ motion for leave to amend their answer to assert a counterclaim for breach of contract in the form annexed to the moving papers. The Court explained: Read More
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Posted: July 7, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerMotion to Hold Defendants in Civil Contempt Denied Where No Unequivocal Mandate
On June 5. 2023, Justice Robert R. Reed of the New York County Commercial Division issued a decision in Cortlandt St. Recovery Corp. v. TPG Cap. Mgmt., L.P., 2023 N.Y. Misc. LEXIS 2734. The Court denied the plaintiff’s motion to hold certain defendants in civil contempt for allegedly filing a court order permitting plaintiff jurisdictional discovery, holding that the court order plaintiff alleged these defendants had violated did not contain an “unequivocal mandate” required by “[l]ongstanding New York Court of Appeals precedent” to establish civil contempt. Read More
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Posted: July 5, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Declines to Vacate Note of Issue Where Remaining Issues Could Be Decided on Post-Discovery Motions Or Were Not Preserved
On May 31, 2023, Justice Robert R. Reed of the New York County Commercial Division issued a decision in Oldcastle Precast v. Steiner Bldg. N.Y. City LLC, 2023 N.Y. Misc. LEXIS 2675, denying defendants’ motion to vacate the note of issue. In the action, the parties had proceeded in discovery before a special referee, who had decided numerous discovery issues prior to the filing of the note of issue but left certain other issues relating to sanctions and the admissibility of certain expert reports for the Court to decide. The Court rejected defendants’ arguments that the special referee’s failure to decide these issues warranted vacating the note of issue, because those issues could still be addresses on summary judgment or motions in limine or were not preserved. Read More
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Posted: June 30, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerStrict, Rather than Substantial, Compliance With Notice-of-Claim Procedures in Public-Works Contract Required
On May 31, 2023, Justice Melissa Crane issued a decision in WDF, Inc. v. Dormitory Authority of the State of New York, 2023 NY Slip Op 31870(U), holding that a contractor's strict, rather than substantial, compliance with conditions precedent to payment for extra work in a public-works contract was required, explaining: Read More
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Posted: June 28, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerPotential Problems With Retrieval of Proceeds Not Irreparable Harm
On June 5, 2023, Justice Margaret A. Chan of the New York County Commercial Division issued a decision in Edgepwr LLC v. Edgepwr Holdings LLC, 2023 NY Slip Op 31893(U), denying a motion for a preliminary injunction in aid of arbitration for lack of irreparable harm, since the petitioner's claims of irreparable harm were based on the "possible problematic retrieval of proceedings," which "goes to monetary relief," explaining: Read More
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Posted: June 27, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerNegligent-Misrepresentation Claim Dismissed For Failure to Plead Special or Privity-Like Relationship
On June 6, 2023, Justice Robert R. Reed of the New York County Commercial Division issued a decision in dMY Sponsor, LLC v. Glatt, 2023 NY Slip Op 50547(U), dismissing a negligent-misrepresentation counterclaim on the ground that allegations that the parties had known each other for decades and that the counterclaim defendant was a trusted friend of the counterclaim plaintiff's father were insufficient to give rise to a "special or privity-like relationship imposing a duty on the [counterclaim] defendant to impart correct information to the [counterclaim] plaintiff," explaining: Read More
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Posted: June 23, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Dismisses Claims That Parties Entered Into Partnership
In an Opinion, dated May 24, 2023, in Offshore Exploration & Prod., LLC v. De Jong Capital, LLC., 2023 NY Slip Op 50502(U), Justice Robert R. Reed granted defendant’s motion to dismiss the plaintiff’s causes of action for: (1) a declaratory judgment that the parties entered into a partnership; (2) breach of the partnership agreement; and (3) for breach of fiduciary duty that partners owe to each other. After determining that Texas law applied based on having more contacts with the action that New York, the Court explained: Read More
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Posted: June 21, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Determines Non-Solicitation Clauses Enforceable
In an Opinion, dated May 24, 2023, in Perella Weinberg Partners LLC v. Kramer, 2023 NY Slip Op 50501(U), Justice Robert R. Reed determined that non-solicitation clauses, which barred the solicitation of both employees and clients of plaintiff, in the parties’ agreements were enforceable. Defendants argued that the restrictive covenants were unenforceable insofar as they purported to bar defendants from communicating with persons with which they had relationships prior to their tenure at plaintiff and that each restrictive covenant was void as a matter of law. Plaintiffs argued the converse. The Court agreed with Plaintiffs, explaining: Read More
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Posted: June 16, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerMotion for Default Judgment Based on “Nail and Mail” Service Denied For Failure to Complete “Due Diligence”
In a Decision and Order, dated May 19, 2023, in McGuigan v. Gendell, Index No. 650294/2021, Justice Joel M. Cohen denied plaintiffs’ motion for a default judgment finding that plaintiffs did not sustain their burden to establish proper service under CPLR 3215(f). The Court explained: Read More
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Posted: June 14, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerSale of Co-Op’s Air Rights Triggered BCL §909(a) Requirement of Shareholder Approval
In a Decision and Order, dated May 19, 2023, in Cogan v. Lei, Index No. 653221/2022, Justice Andrew Borrok held that the Purchase and Sale Agreement to sell a Co-op’s air rights was void for, among other reasons, failure to obtain shareholder approval. The Court explained: Read More
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Posted: June 12, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerPlaintiff Entitled to Pursue Lost Profits on $830 Million Hotel Casino Project
In an Opinion, dated May 25, 2023, in BML Properties Ltd. V. China Construction America, Inc., Index No. 657550/2017, Justice Andrew Borrok denied defendants’ motion for summary judgment. The Court previously found that the fraud claims were not duplicative of the breach of contract claims because they relied on misrepresentations of then-current facts regarding the project. In this Opinion, the Court, among other things, refused to preclude plaintiffs, at this stage, from seeking lost damages. The Court explained: Read More
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Posted: June 9, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerMotion for Leave to Amend Granted in Part and Denied in Part Following Appellate Division Decision
On May 19, 2023, Justice Joel M. Cohen, of the New York County Commercial Division, issued a decision in in Homapour v. 3M Props., LLC, 2023 N.Y. Misc. LEXIS 2496. The Court granted in part and denied in part the plaintiff’s motion for leave to amend the complaint, which was made following decisions made by the First Department and Second Department in the underlying action and related actions relevant to the motion. The Court denied the motion as to one specific claim which was barred by the prior First Department order, but otherwise granted the motion for leave to amend. Read More
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Posted: June 7, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerSummary Judgment Denied Where Plaintiff’s Demand Conflicted with Parties’ Course of Dealing and Express Terms of Contract
On May 23, 2023, Justice Andrew Borrok of the New York County Commercial Division issued a decision in GalaxE.Healthcare Sols., Inc. v. RxSense, LLC, 2023 N.Y. Misc. LEXIS 2568. The Court denied the plaintiff’s motion for summary judgment, finding that the plaintiff’s claim was contradicted by the parties’ prior course of dealing and the express terms of the parties’ agreement. The Court explained: Read More
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Posted: June 5, 2023
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerLate Response to Discovery Demands Does Not Waive Objections to Palpably Improper Demands
On May 22, 2023, Jennifer G. Schecter of the New York County Commercial Division issued a decision in LI v. Satsuma USA LLC, 2023 N.Y. Misc. LEXIS 2530. Ruling on multiple discovery-related motions, the Court ruled in relevant part that, while the plaintiff’s response to defendants’ post-deposition demands was untimely, a late response to discovery demands does not result in waiver of objections to palpably improper demands. Read More
