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Posted: October 6, 2025
Written by: Jeffrey M. Eilender, Samuel L. Butt, Joshua Wurtzel, Thomas A. Kissane, Channing J. TurnerRule 25-a Relating To Virtual Evidence Courtrooms Added To Commercial Division Rules
By Administrative Order, dated September 30, 2025, Commercial Division Rule 25-a was added to the Commercial Division Rules, effective November 10, 2025. The new rule, relating to Virtual Evidence Courtrooms, reads as follows: Read More
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Posted: October 3, 2025
Written by: Thomas A. Kissane, Samuel L. Butt, Channing J. Turner, Jeffrey M. Eilender, Joshua WurtzelCourt Denies Motion To Disqualify Counsel Based On Alleged Concurrent Representation Where The First Representation Was “Effectively Over” Before The Second Commenced
On July 9, 2025, Justice Andrew Borrok denied a defendant’s motion to disqualify his prior counsel, Baker & Hostetler LLP, from representing the other side in a case against it. In AT&T Mobility LLC v. Harman Connected Services, Inc., Index No. 659609/2024, Baker previously represented Defendant Harman Connected Services in a lawsuit against a third party and had not yet formally received approval to withdraw from that lawsuit at the time it filed a lawsuit on AT&T’s behalf against Harman. Nevertheless, the Court noted that the prior case had been dismissed about eight months before the instant lawsuit had been filed. As a result, the Court concluded that the prior representation was “effectively over” long before. Read More
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Posted: October 1, 2025
Written by: Thomas A. Kissane, Jeffrey M. Eilender, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Denies Motion To Vacate Default Judgment Where Defendant Claims He Was Never Served With Process
On August 6, 2025, Justice Joel M. Cohen denied a defendant’s motion to vacate a default judgment based upon the jurisdictional objection of lack of service of process. In Francesco Marcello v. MK Cuisine Global LLC, et al., Index No. 654805/2022, defendant Matthew Kenney moved for an order vacating a default judgment entered against him because, among other things, he said he had never been served. However, the Court pointed to an affidavit of service stating that a process server had left the summons and complaint with a person of suitable age and discretion at Kenney’s place of business and mailed a copy pursuant to CPLR 308(2). The Court explained: Read More
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Posted: September 29, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Channing J. Turner, Joshua Wurtzel, Samuel L. ButtCourt Dismisses Tortious Interference Claim Brought Against Corporate Officer For Lack Of Allegations Supporting Malice
On July 28, 2025, Justice Margaret A. Chan dismissed a claim for tortious interference with contract brought against a corporate officer due to a lack of allegations suggesting the officer was motivated “solely by malice.” In EMC Presents Delphi LLC v. Delphi Studios LLC, et al., Index No. 655192/2024, Plaintiff EMC sued Delphi Studios in connection with the failed financing of an entertainment business venture. One of EMC’s claims alleged that Andrea Jacobs, a principal at Delphi Studios, tortiously interfered with EMC’s financing contract and relationship with a third party financer. The Court held, however, that EMC had failed to meet the “enhanced pleading standard” triggered by Jacobs’s status as a corporate officer at Delphi Studios. The Court explained: Read More
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Posted: September 26, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Channing J. Turner, Joshua WurtzelSummary Judgment In Lieu Of Complaint Granted Against Borrower And Guarantor As To Liability, Denied As to Attorneys’ Fees
On July 29, 2025, Justice Melissa A. Crane granted summary judgment in lieu of complaint on a $1 million loan agreement, and denied summary judgment as to attorneys’ fees. The case is Katragadda v. EIP Global Fund LLC, Index No. 655836. Read More
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Posted: September 24, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerSummary Judgment Denied Where Defendant Failed To Support Argument That Plaintiff Was Obliged To Exhaust Administrative Remedies
On July 23, 2025, Justice Joel M. Cohen denied a motion for summary judgment premised on defendant’s argument that plaintiff had failed to exhaust its administrative remedies. The case is 249 E. 62 St., LLC vs. Rafael Vinoly Architects, P.C., Index No. 655469/2020. Read More
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Posted: September 22, 2025
Written by: Thomas A. Kissane, Jeffrey M. Eilender, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerPlaintiffs’ Motion To Compel Granted In Part, Defendants’ In Full
On August 7, 2025, Justice Andrew Borrok resolved motions to compel brought by both sides in a dispute concerning a contemplated assignment of a bankruptcy claim. The case is Ceratosaurus Investors, LLC v. B2C Alternative Equity, LLC, Index No. 653758/2024. Read More
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Posted: September 19, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerRMBS Trust Suit Dismissed Under No-Action Clause Because Plaintiff Failed to Adequately Allege Futility of Demand on Trustee
On July 30, 2025, Justice Melissa A. Crane of the New York County Commercial Division issued a decision in Finkelstein v. U.S. Bank, National Association, as Trustee, et al., Index No. 651317/2023, dismissing plaintiff's claim that it was underpaid by the servicer on the ground that, under the no-action clause in the pooling and servicing agreement (PSA), plaintiff failed to first demand that the trustee bring suit and also failed to adequately allege that demand would have been futile, explaining: Read More
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Posted: September 17, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerBorrower Liable to Guarantor for Losses Caused by Borrower's Default Under Loan
On July 29, 2025, Justice Joel M. Cohen issued a decision in Ader v. Ader, et al., Index No. 653917/2024, granting summary judgment against defendant borrower for breach of an agreement between borrower and plaintiff guarantor under which borrower gave guarantor the right to sell borrower's real property if borrower defaulted on the underlying loan guaranteed by guarantor, explaining: Read More
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Posted: September 12, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Denies Motion To Vacate Decision Granting Motion To Dismiss Based On Law Office Failure
On July 17, 2025, Justice Joel M. Cohen denied defendant’s motion to vacate the Court’s order granting plaintiffs’ motion to dismiss the Third Amended Counterclaims in JG Group Holdings LLC v. Kahlon, Index No. 6521966/2020. Defendant sought to vacate the Court’s decision, arguing that the motion was unopposed due to excusable law office failure – specifically, mis-calendaring the filing deadline. The Court explained: Read More
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Posted: September 10, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Denies Motion To Lift Restraining Notices
On August 1, 2025, in Manorhaven Capital LLC v. Marc J. Bern & Partners, LLP, Index No. 654869/2022, Justice Andrew Borrok denied the motion of non-parties to vacate restraining notices served by the Judgment Creditor Plaintiff so the non-parties could pay lawyers and operate the Defendant’s business but not pay their own loan down or otherwise facilitate a foreclosure sale. The Court explained: Read More
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Posted: September 8, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Requires Withdrawal Of Claims Filed In Another Jurisdiction
On August 4, 2025, Justice Andrew Borrok required defendant to withdraw all claims filed in Philadelphia that arose out of the License Agreement at issue or be held in contempt in Orphion Therapeutics, Inc. v. The Children’s Hospital of Philadelphia et al., Index No. 655222/2024. The Court explained: Read More
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Posted: September 5, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Orders Referee To Determine Whether Party Has Sufficient Cash To Comply With Order Requiring Deposit Into Escrow Or Should Be Held In Contempt
On July 10, 2025, Justice Andrea Masley ordered a referee to conduct hearings into whether a party who had been ordered to deliver $54,205.53 to his attorney to be held in escrow during post-judgment proceedings could be held in contempt despite allegedly lacking the funds to comply. In Raza Khan v. Vishal Garg, et al., Index No. 65233/2013, a judgment had been entered against Khan but it needed to be corrected to reflect the amount that would be paid to each Defendant. Until that issue was decided, the Court ordered Khan to deliver the judgment amount to his attorney to be held in escrow. Khan failed to do so and claimed he did not have sufficient funds. Read More
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Posted: September 3, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Prohibits Defendant From Using The Terms “Stray” And “Handful” To Describe The Number Of Allegedly Fraudulent Telemarketing Calls As Punishment For Destroying Evidence
On July 8, 2025, Justice Andrea Masley clarified an earlier decision imposing sanctions for spoliation that included prohibiting a defendant from using the terms “stray” and “handful” during trial to describe the number of allegedly fraudulent telemarketing calls. In Earthlink, LLC v. Charter Communications Operating LLC, Index No. 654332/2020, Charter Communications was found to have destroyed evidence including recordings of calls that its call center employees made to Earthlink customers, allegedly falsely informing those customers that Earthlink was out of business. In response to a motion for reargument, the Court clarified that it would allow Charter Communications to use the terms “stray” and “handful” during closing argument but would not allow it to use them during presentation of evidence to the jury. The Court explained: Read More
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Posted: August 29, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerDefault Judgment Granted, Inadequate Proof Of Damages Requires Referral To Referee
On June 30, 2025, Justice Andrea Masley granted plaintiffs’ unopposed motion for entry of a default judgment against a corporate defendant that had failed to replace its withdrawn counsel, but declined to enter judgment fixing damages as plaintiffs’ proof was insufficient. The court therefore referred the damages issue to a referee for a hearing. The case is Rhythm Energy, Inc. v. V3 Capital Group, LLC, Index No. 653122/2023: Read More
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Posted: August 27, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerUnder Liberal Construction Afforded Notices Of Insurance Claims, Dispute Regarding Whether Plaintiffs’ Notice Included Earlier Insurance Policy Fails To Render Amendment “Palpably Insufficient”
On July 3, 2025, Justice Joel M. Cohen granted leave to amend the complaint to include an earlier insurance policy covering the aircraft for which Plaintiffs sought coverage. The case is Greylag Goose Leasing 1410 Designated Activity Company v. Chubb European Group, Index No. 654784/2023. Read More
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Posted: August 25, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerSummary Judgment In Lieu Of Complaint Granted Upon Renewal
On July 14, 2025, Justice Margaret A. Chan granted summary judgment upon renewal of plaintiff’s application to enforce a $10,000,000 promise of payment by defendant Joseph S. Cohen as an instrument for the payment of money only under CPLR 3213. The case is DKSJ, LLC v. Cohen, Index No. 653100/2024. Read More
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Posted: August 22, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerSummary Judgment in Lieu of Complaint Denied When Amounts Due Under Guaranty Could Not Be Computed Without Consulting Other Materials
On July 2, 2025, Justice Andrew Borrok of the New York County Commercial Division issued a decision in Ally Bank, et al. v. Rybner, et al., Index No. 652277/2025, denying a motion under C.P.L.R. 3213 for summary judgment in lieu of complaint on a guaranty, explaining: Read More
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Posted: August 15, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Concludes Defendant Purged Himself Of Criminal Contempt
On July 1, 2025, Justice Joel M. Cohen determined that Defendant purged himself of criminal contempt in Valley National Bank v. Tarzan Cab Corp., Index No. 655249/2020. In March, the Court granted plaintiff’s motion for civil contempt and provisionally granted the motion for criminal contempt against Defendant Sami Itshaik. The Court provided Defendant leave to purge himself of criminal contempt by making a filing that complied with the Court’s prior order. In concluding Itshaik had purged the criminal contempt, the Court explained: Read More
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Posted: August 13, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Grants In Part Motion To Dismiss Against Accounting And Auditing Firm Based On Engagement Letter Clause Permitting Firm To Resign At Any Time
On July 3, 2025, Justice Andrea Masley granted, in part, Defendant Marcum, LLP’s motion to dismiss the complaint in Hyros, Inc. v. Marcum, LLP, Index No. 653718/2023. Plaintiff asserted a claim for breach of contract against Marcum based on Marcum’s resignation from the engagement prior to completion, claiming Marcum failed to provide a valid explanation as to why, in its professional judgment, the circumstances required March to resign. Marcum argued it had the right to resign at any time without limitation. The Court agreed with Marcum on this claim, explaining: Read More
