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Posted: March 30, 2022
Written by: Jeffrey M. Eilender, Samuel L. Butt, Joshua WurtzelCredit Agreement Does Not Qualify As Instrument for Payment of Money Only Under CPLR §3213
In a Decision and Order dated February 18, 2022, in Fisher v. Lovaro LLC, 2022 NY Slip. Op. 30565(U)… Read More
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Posted: March 27, 2022
Written by: Jeffrey M. Eilender, Samuel L. Butt, Joshua WurtzelCourt Should Have Granted Renewal Where Dismissal Was Based on Argument Raised for First Time in Reply
On March 3, 2022, in Mehra v. Morrison Cohen LLP, 2022 NY Slip. Op. 01396, the First Department reversed the Decision and Order of Justice O. Peter Sherwood, which granted defendant’s motion to dismiss a breach of fiduciary duty claim, and the Order of Justice Robert Reed, which denied Plaintiff’s motion for leave to renew. Read More
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Posted: March 25, 2022
Written by: Jeffrey M. Eilender, Samuel L. Butt, Joshua WurtzelSubpoena Quashed Where It Sought to Ascertain Existence of Evidence
In a Decision dated January 26, 2022, in Tsunis Gasparis LLP v Ring, 2022 NY Slip Op 50070(U), Justice Emerson of the New York Supreme Court, Suffolk County, granted in part defendants’ motion for a protective order and for an order quashing subpoenas served on a CPA firm and banks. Read More
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Posted: March 23, 2022
Dismissal of Breach of Contract Claim Decisive of Motion to Dismiss Complaint
In a Decision and Order dated January 11, 2022, in Misamore v Godfrey, 2022 NY Slip Op 00131, the First Department unanimously and summarily affirmed that where there was no breach of contract, the other claims for breach of implied covenant of good faith and fair dealing, tortious interference, and unjust enrichment had to be dismissed. Read More
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Posted: March 21, 2022
Information about Law Firm's Other Clients Irrelevant to Plaintiffs' Claim that Firm Fraudulently Induced Them into Bogus Tax Shelter Scheme
In a Decision and Order dated February 4, 2022, in Berman v. Holland & Knight, Index No. 652466/2015, Justice Cohen denied plaintiffs' motion to compel its former attorneys from identifying clients who were advised about the same tax shelter strategy as were plaintiffs. Plaintiffs alleged that Holland & Knight lured them and other clients into investing millions of dollars in a bogus tax shelter scheme by giving them knowingly false legal advice in opinion letters. Denying the motion, the Court found that the privileged information that was sought was not relevant to their fraud claim: Read More
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Posted: March 16, 2022
Piercing of Corporate Veil Adequately Pled Where Plaintiff Alleges Fraud
On February 14, 2022, Justice Borrok of the New York County Commercial Division issued a decision in Kostyatnikov v. HFZ Capital Grp. LLC, 2022 NY Slip Op 30486(U), holding that a party properly pleads a corporate veil piercing theory when the facts allege a fraud was perpetrated against defendants. Read More
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Posted: March 14, 2022
Commercial Lease Provision Exempting Party from Its Own Negligence Valid Where Parties Are Sophisticated
On February 3, 2022, Justice Gomez of the Bronx County Commercial Division issued a decision in Titumir v Barker Ave. Estates LLC, 2022 NY Slip Op 50073(U), holding that a provision in a commercial lease exempting a party for its own negligence was valid where the lease was entered into by sophisticated parties negotiating at arm’s length and the parties have agreed to allocate the risk of liability between themselves. Read More
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Posted: March 11, 2022
Assets In Which Judgment Debtor Has Beneficial Interest, Even if Not Legal Title, Are Subject to Levy
On February 9, 2022, Justice Barry R. Ostrager of the New York County Commercial Division issued a d… Read More
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Posted: 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
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Posted: 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
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Posted: March 4, 2022
Written by: Jeffrey M. Eilender, Samuel L. Butt, Joshua WurtzelPlaintiff Not Estopped from Disputing Defendant's Ownership Interest Based on K-1
In a Decision dated February 3, 2022, in Trademan Program Mgrs., LLC v. Doyle, Index No. 655520/18 and First Department Case Nos. 2020-04608, 2021-00319, and 2021-00320, 2022 N.Y. Slip. Op. 00747, the First Department affirmed an order of Justice Masley granting plaintiff’s motion for summary judgment declaring that defendant JCB Associates was not a member of plaintiff and thus not entitled to claim an interest in the entity. JCB argued that plaintiff was estopped from taking that position based on a Schedule K-1 distributed to members for the 2017 tax year showing JCB to have an 18.75% interest. Read More
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Posted: March 2, 2022
Written by: Joshua Wurtzel, Jeffrey M. Eilender, Samuel L. ButtExclusivity Fee in Term Sheet Constituted Liquidated Damages Provision and Barred Further Recovery
In a Decision and Order dated February 9, 2022, in Parkmerced Invs. v. WeWork Cos. LLC, Index No. 652094/2020, Justice Andrea Masley granted defendant WeWork’s motion to dismiss. Plaintiff alleged breach of contract, breach of the covenant and good faith and fair dealing, and promissory estoppel arising out a redevelopment in San Francisco with respect to which plaintiff and WeWork had signed a non-binding term sheet containing the material terms of WeWork’s investment in the project, including an exclusivity clause and a $20 million exclusivity fee. Ultimately, WeWork did not participate in the redevelopment project. In granting dismissal, Justice Masley read the exclusivity fee as a liquidated damages provision. Read More
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Posted: February 28, 2022
Written by: Jeffrey M. Eilender, Samuel L. Butt, Joshua WurtzelClaims of Potential Personal Civil and Criminal Liability Are Not Duplicative of Derivative Claims of Corporation
On February 3, 2022, in Newman v. Newman, 2022 NY Slip. Op. 00731, the First Department affirmed the Decision and Order of Justice Barry R. Ostrager, denying plaintiff’s motion to dismiss plaintiff’s individual causes of actions. Read More
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Posted: February 25, 2022
Lack of Due Diligence and Awareness of Risks Irrelevant Where Claim is for Fraudulent Inducement
On January 5, 2022, Justice Masley of the New York County Commercial Division issued a decision in BRL Hampton Rd. LLC v. Heather, 2022 NY Slip Op 30039(U), granting plaintiff summary judgment even though it failed to conduct due diligence, was aware of the risks with a startup and was the one who had the idea to lend $1 million to defendant to get the construction project moving. The Court explained: Read More
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Posted: February 23, 2022
Plaintiff Cannot Claim Fraud Despite Concealment Where Party’s Action Was Consistent with SLA
On January 27, 2022, Justice Borrok of the New York County Commercial Division issued a decision in HOV Servs., Inc. v ASG Tech. Group, Inc., 2022 NY Slip Op 30299(U), granting defendant’s motion to dismiss claims for fraudulent inducement and violation of GBL § 349 and denying plaintiff’s affirmative defense of fraud where plaintiff alleged, among other things, that defendant concealed its belief that plaintiff was in violation of the Overlapping Customer Restriction: Read More
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Posted: February 18, 2022
Lender Has No Obligation to Perform Due Diligence to Determine if Signature on Loan Documents Was Fraudulent
On February 9, 2022, Justice Borrock of the New York County Commercial Division issued a decision in Donald Jaffe Inc. v. REEC 137 Franklin St. LLC, 2022 NYLJ LEXIS 85, holding that even where a notarized signature on loan documents was proven to be fraudulent, the lender had no obligation to perform due diligence to discover the fraud where the documents were facially valid and notarized. Read More
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Posted: February 14, 2022
Party Not in Compliance with Lien Law Where Party Failed to Identify With Specificity Which Items Had Already Been Paid
On January 16, 2022, Justice Masley of the New York County Commercial Division issued a decision in Matter of FPG Maiden Lane, LLC v. Pizzarotti, LLC, 2021 NY Slip Op 30098(U), holding that a party was not in compliance with Lien Law § 38 where the party failed to distinguish between charges already paid and charges not paid. Read More
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Posted: February 11, 2022
Summary Judgment in Lieu of Complaint Based on Guaranty Appropriate Even When Court Must Also Look to Underlying Loan Agreement
On December 23, 2021, Justice Margaret Chan of the New York County Commercial Division issued a decision in BSP Agency LLC v. Katzoff, 2021 NYLJ LEXIS 1310, granting the plaintiff's motion for summary judgment in lieu of complaint on a guaranty, and rejecting the defendant's argument that summary judgment in lieu of complaint was unavailable because the court had to look to the underlying loan agreement to determine liability, holding: Read More
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Posted: February 9, 2022
Confidentiality Clause in Agreement Insufficient to Allow Agreement To Be Filed Under Seal
On January 21, 2022, Justice Joel M. Cohen of the New York County Commercial Division issued a decision in Coronado Coal II LLC v. Kinder Morgan Operating L.P., 2022 N.Y. Slip Op. 30253(U), holding that the presence of a confidentiality clause in an agreement is not, without more, sufficient to show that that agreement may be filed under seal, explaining: Read More
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Posted: February 7, 2022
Expert May Not Opine on Party's Intent
On January 20, 2022, Justice Andrea Masley of the New York County Commercial Division issued a decision in Line Design LLC v. Pro Design, Inc., 2022 N.Y. Slip Op. 30214(U), striking portions of an expert's report that purported to opine on a party's intent but refusing to strike other portions that were challenged on the ground that the expert conducted an inadequate investigation, explaining: Read More
