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Posted: December 6, 2021
First Department Holds Issue Of Fact Concerning Release Precludes Dismissal
On October 6, 2021, in Slabakis v. Poyiadjis, 197 A.D.3d 1059 (1st Dep’t 2021), the First Department reversed a Decision and Order of Justice O. Peter Sherwood, which granted defendants’ motion to dismiss the amended complaint. The Court explained >> Read More
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Posted: December 3, 2021
Plaintiff Failed to Show Proof of Service Where It Delivered an Electronic Copy of the 809-page Complaint
On August 11, 2021, Justice Platkin of the Supreme Court, Albany County, issued a decision in Contractors Compensation Trust v. $49.99 Sewer Man, Inc., 2021 NY Slip Op 50787 (U), denying plaintiff’s motion for entry of a default judgment against numerous defendants for failing to appear in response to the complaint where plaintiff filed an electronic copy of the complaint. While recognizing the complaint with exhibits totaled over 1.5 million pages, the Court explained that>> Read More
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Posted: December 1, 2021
Former Minority Shareholders Barred from Suing Where They Unknowingly Signed Release on the Eve of Profitable Asset Sale
On October 5, 2021, the First Department issued a decision in Silver Point Capital Fund, L.P. v. Riviera Resources, Inc., 2021 NY Slip Op 05312, unanimously affirming Justice Borrok’s decision granting defendant’s motion to dismiss the amended complaint. The Court rejected the claim of former minority shareholders of defendant that defendant fraudulently induced them to sell it all of their shares in the corporation just three weeks before it announced an asset sale of its most valuable properties, after which sale prices soared and defendant made a substantial distribution to shareholders. Read More
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Posted: November 22, 2021
Summary Judgment on Breach of Contract Claim Not Appropriate Where Contract is Ambiguous
On October 1, 2021, the Fourth Department issued a decision in Dunn Auto Parts, Inc. v Wells, 2021 NY Slip Op 05185 holding that where a contract’s terms are ambiguous, it is not proper for the court to grant summary judgment because only a finder of fact can determine the intent of the parties. Read More
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Posted: November 19, 2021
Unchallenged, Independent Alternative Ground for Affirmance Moots Appeal
On September 29, 2021, the Second Department issued a decision in Dorce v. Family Dollar Stores of N.Y., Inc., 197 A.D.3d 1289, dismissing an appeal as academic when an unchallenged, independent alternative ground for affirmance existed, explaining: Read More
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Posted: November 18, 2021
Ruling Dismissing Individual Liability Under Lien Law Reversed Where Complaint Alleged Defendants Diverted Funds
On August 26, 2021, the Fourth Department issued a decision in Kulback's Inc. v Buffalo State Ventures, LLC, 2021 NY Slip Op 04813, holding that it was not proper to dismiss causes of action seeking to hold individuals acting as trustees under a trust for a commercial construction project governed by the Lien Law personally liable where the complaint alleged that the individual defendants expended and diverted trust funds. Read More
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Posted: November 17, 2021
Notice Required By C.P.L.R. 3215(g)(1) Limited to Applications for Entry of Default Judgment
On September 22, 2021, the Second Department issued a decision in 21st Mortgage Corp. v. Raghu, 197 A.D.3d 1212, holding that the notice required by C.P.L.R. 3215(g)(1) applies only to an application for entry of a default judgment and does not apply to a motion to confirm a referee's report and for judgment of foreclosure and sale. Read More
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Posted: November 15, 2021
Oral Objections Insufficient to Defeat Account Stated Claim
On October 26, 2021, the First Department issued a decision in Katsky Korins LLP v. Moskovits, 2021 N.Y. Slip Op. 05815, granting summary judgment to plaintiff law firm on its account stated claim and holding that defendant's oral objections to plaintiff's invoices were insufficient to raise a triable issue of fact, explaining: Read More
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Posted: November 12, 2021
Second Department Affirms Summary Judgment Dismissing Breach of Fiduciary Duty Claim Concerning Severance Package
On October 6, 2021, in Glaubach v. Slifkin, 2021 NY Slip Op 05322, Second Department Case Nos. 2018-12718, 2018-12720, and 2019-04182, the Second Department affirmed a Decision and Order of Justice Marguerite Grays, which granted summary judgment to defendants dismissing a breach of fiduciary duty claim concerning a severance package offered to one of the defendants. The Court explained: Read More
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Posted: November 10, 2021
Second Department Affirms Interlocutory Judgment Declaring Plaintiff, As Representative Of Estate, 50% Owner of Defendant
On October 6, 2021, the Second Department issued a decision in Matter of Coven v. Neptune Equities, Inc., 2021 NY Slip Op 05334, Second Department Case No. 2018-14172, affirming an order of Justice Timothy Driscoll, adjudging that Walter Coven was the owner of 50% of the shares of defendant at the time of his death and that the petitioner, as representative of Coven’s estate, had standing to maintain the action to dissolve. Read more>> Read More
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Posted: November 8, 2021
First Department Affirms Entitlement to Summary Judgment Against Guarantor of Commercial Lease On Liability But Determines Issues of Fact Remain As To Damages
On September 28, 2021, the First Department issued a decision in ALQ, LLC v. Peter Kane., 2021 NY Slip Op 05071, First Department Case No. 2020-02337, affirming an order of Justice Andrew Borrok granting summary judgment to plaintiff against defendant guarantor as to liability on a commercial lease, but modified the order to deny the motion as to the amount of damages. The Court explained: Read More
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Posted: November 5, 2021
New Commercial Division Rule to Permit Virtual Evidentiary Hearings and Bench Trials
On October 19, 2021, Chief Administrative Judge Lawrence K. Marks promulgated new Rule 36 of the Commercial Division Rules, which expressly permits evidentiary hearings and bench trials to be held virtually. The new rule, which becomes effective December 13, 2021, now expressly permits what most Commercial Division justices were already doing--holding hearings and bench trials virtually. The rule also permits the court to allow a witness or party to participate in an evidentiary hearing or bench trial virtually, even if the hearing or trial is otherwise being held in person. The rule is limited to instances in which all parties consent, and expressly does not address (one way or another) the issue of when all parties do not consent. The new rule is as follows: Read More
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Posted: November 1, 2021
Tortious Interference Claim Fails Against Party to Contract
On July 26, 2021, Justice Andrew Borrok of the New York County Commercial Division issued a decision in Schorsch v. Luxor Capital Partners, LP, 2021 N.Y. Slip Op. 50698(U), dismissing a claim for tortious interference brought against a party to the contract allegedly interfered with, explaining: Read More
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Posted: October 29, 2021
Third-Party Action Against Insurer Should Be Tried Separately From Underlying Liability Action
On March 30, 2021, Justice Grays of the Queens County Commercial Division issued a decision in Board of Mgrs. of the 44-15 Purves St. Condominium v 44-15 Purves St., LLC, 2021 Slip Op 32048 holding that an action against an insurer for denying an insurance claim should be severed pursuant to CPLR 603 from the underlying action to determine liability. Read More
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Posted: October 27, 2021
Clear and Unambiguous Language Trumps Claim for Breach of Covenant of Good Faith and Fair Dealing
On September 22, 2021, the Second Department issued a decision in Woodmere Rehabilitation v. Zafrin, 2021 NY Slip Op 05039, affirming Justice Stephen Bucaria's order dismissing the claims of the trustees, as landlord, for breach of the lease and the covenant of good faith and fair dealing with respect to the right to operate nursing home beds. The trustees claimed that a provision in the lease requiring the tenant, a nursing home operator, to deliver the facility as a licensed first class nursing home did not grant them an interest in the right to operate the nursing home. Read More
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Posted: October 20, 2021
Prior Decision in Minnesota Court Against Borrower Precluded Guarantor From Raising Issue in New York
On September 30, 2021, the First Department issued a decision in Gamma Lending Omega LLC v. Kaminski… Read More
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Posted: 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
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Posted: October 15, 2021
Minority Shareholders Could Not Claim Fraudulent Inducement Due To Letter Release
On October 5, 2021, the First Department issued a decision in Silver Point Capital Fund, L.P. v. Riv… Read More
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Posted: October 13, 2021
First Department Holds That Proposed Documentary Evidence Did Not Conclusively Establish That Fuel Oil Met Specifications In Purchase Contract And That General Warranty Disclaimer Is Ineffective As To Required Specifications For Fuel Oil In The Contract
On October 1, 2021, in Glencore Ltd. v Freepoint Commodities LLC., Index No. 653431/19 and First Dep… Read More
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Posted: October 8, 2021
Settlement Agreement Providing that Trustees to Distribute Shares as if "Subsequent Recovery" Ignored as "Gap Filler"
On August 19, 2021, in Matter of Wells Fargo Bank v Aegon USA Inv. Mgt., LLC, 2021 NY Slip Op 04740,… Read More
