-
Posted: June 16, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Permits Belated Summary Judgment Motion
On June 6, 2025, Justice Joel M. Cohen granted Plaintiff’s motion for leave to file a belated summary judgment motion in J.T. Magen & Company Inc. v. Nissan North America, Inc. et al., Index No. 160497/2017. The Court explained: Read More
-
Posted: June 13, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Upholds Defense Based On The Frustration-Of-Purpose Doctrine Due To Covid 19 Pandemic Preventing Access To Public Events
On May 15, 2025, Justice Joel M. Cohen denied a summary judgment motion seeking dismissal of a defense based on the frustration-of-purpose doctrine after the Covid 19 pandemic prevented the party from fulfilling its contractual obligation to provide access to high-profile performances and live events. In Penske Media Corp. v. Shutterstock, Inc., Index No. 652761/2024, Penske Media Corporation (PMC) and Shutterstock had entered into an agreement whereby PMC granted Shutterstock access to high-profile live events like the Academy Awards and Tony Awards ceremonies in exchange for a cut of royalties. The Covid 19 pandemic disrupted this arrangement by canceling many such events, leading to a declaration of default for failing to provide access to live events. The Court denied summary judgment on the doctrine, explaining: Read More
-
Posted: June 11, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Grants Reargument/Reconsideration Of Dismissal Of Claim Under The New York State False Claims Act To Allow Liquidated Civil Penalties
On May 15, 2025, Justice Andrew Borrok granted a plaintiff’s motion for reargument/reconsideration of complete dismissal of its claim under the New York State False Claims Act (NYSFCA), holding that although the claim for actual damages was properly dismissed, the plaintiff could still pursue liability for civil penalties. In State of New York ex rel. Edelweiss Fund, LLC, v. JPMorgan Chase & Co., et al., Index No. 100559/2014, the Court had previously granted a motion to dismiss the NYSFCA claim based on the failure to show actual damages. However, the Court reversed its prior ruling for “overlook[ing] or misapprehend[ing]” that the NYSFCA also allowed plaintiffs to seek a liquidated civil penalty against a defendant. The Court explained: Read More
-
Posted: June 9, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Dismisses Contract Claim For Lack Of Jurisdiction Where Claim Lacked A “Nexus” To New York Despite The Defendant Contracting To Supply PPE To New York City
On May 14, 2025, Justice Joel M. Cohen granted a motion to dismiss an action brought by a plaintiff who contracted to assist the defendant company with securing PPE manufactured in China that was later resold to New York City. In David Zeng v. HH Fairchild Holdings, LLC, et al., Index No. 651864/2024, the plaintiff sued for breach of contract, but the Court ruled that it lacked long-arm jurisdiction over the defendant, despite the defendant’s sale of PPE to New York City, because that sale lacked a sufficient nexus with the plaintiff’s cause of action. The Court explained: Read More
-
Posted: June 6, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerOrders Of Contempt Entered Against Spouse of Judgment Debtor And Her LLC For Failure To Provide Post-Judgment Discovery Concerning Transfer By Judgment Debtor
On March 27, 2025, Justice Melissa A. Crane held two non-parties in contempt of court based on their failure to respond to discovery demands concerning a real property transfer. The case is TH Holdco LLC v. Rubin, Index No. 650955/2023. Read More
-
Posted: June 4, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerSummary Judgment Granted To Plaintiffs Against Borrowers, Denied As To Peripheral Defendants
On April 26, 2025, Justice Andrea Masley granted summary judgment to plaintiff banks on claims against certain borrowers, and denied relief as to peripheral defendants against whom no claims were asserted. The case is Shanghai Commercial Bank Ltd. v. New Tent, LLC, Index No. 850240/2024. Read More
-
Posted: June 2, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerSummary Judgment Granted Under CPLR 3212 And 3213, Under Guaranties Of Debts Established By Foreign Judgment
On April 30, 2025, Justice Joel M. Cohen granted summary judgment under CPLR 3212 and 3213 (instrument for the payment of money only), compelling payment under guaranties for a debt of non-party HYLA UK Holdco Limited (“HYLA UK”). The case is White Matter Holding Limited v. Abubaker, Index No. 653658/2023. Read More
-
Posted: May 30, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerFraud Claim Dismissed, and Plaintiffs Sanctioned, When Contemporaneous Communications Showed Plaintiffs Did Not Rely on Alleged Misrepresentation
On April 25, 2025, Justice Joel M. Cohen of the New York County Commercial Division issued a decision in Landau v. DGital Media LLC, Index No. 654067/2019, granting summary judgment dismissing plaintiffs' fraud claim and awarding attorneys' fees and costs against plaintiffs, because plaintiffs' own contemporaneous communications showed that they did not rely on defendants' alleged misrepresentation, holding: Read More
-
Posted: May 29, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCommercial Division Rules Amended to Require Parties to Make Initial Disclosures
On May 6, 2025, the Chief Administrative Judge of the Courts signed an administrative order adding a new Rule 11-h to the Commercial Division Rules, requiring that, at the outset of a case, parties serve initial discovery disclosures, similar to what is currently required in federal practice. Read More
-
Posted: May 23, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Grants Motion To Compel Arbitration
On May 5, 2025, Justice Andrew Borrok granted defendants’ motion to compel arbitration in Suncroft Capital, LLC v. Local.House International, Inc., Index No. 659060/2024. The Court explained: Read More
-
Posted: May 21, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerScrivener’s Error Does Not Preclude Summary Judgment In Lieu Of Complaint
On April 28, 2025, Justice Joel M. Cohen granted plaintiff’s motion for summary judgment against the borrower and guarantor in PFNGT LLC v. Liquid Capital LLC, Index No. 654595/2024. The Court explained: Read More
-
Posted: May 19, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Denies Motion To Dismiss Breach Of Fiduciary Duty Claims As Duplicative Of Breach Of Contract Claims
On March 31, 2025, Justice Melissa A. Crane denied defendants’ motion to dismiss plaintiff’s breach of fiduciary claims in G.O.C. Invs. Co. Inc. v. Boaz Bagbag, Index No. 650785/2024. Plaintiff claimed, in essence, that defendants fraudulently induced G.O.C. to invest millions of dollars to create two jointly owned companies but defendants improperly took funds belonging to or owed to the companies. As to the plaintiff’s breach of fiduciary duty claims, the Court explained: Read More
-
Posted: May 16, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Rules A Federal Court’s Summary Judgment Order Could Not Support Res Judicata Until The Entry Of A Final Non-Appealable Judgment
On April 4, 2025, Justice Joel M. Cohen ruled that a defendant seeking to dismiss claims against him on grounds of res judicata could not rely on a federal court’s summary judgment order because the order was not a “final conclusion” to the claim. In Raistone Purchasing LLC-Series XXXVII v. Gustavo Andres Patino Ocampo, et al., Index No. 654931/2024, defendant Gustavo Patino Ocampo argued that a federal court’s order on summary judgment in a federal action precluded the claim against him in state court. The Court denied his motion to dismiss, explaining: Read More
-
Posted: May 14, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerReference To “Other Obligations” In Payment Guarantees Does Not Prevent The Use Of CPLR 3213’s Accelerated Judgment Procedure
On March 25, 2025, Justice Melissa A. Crane granted a bank plaintiff’s motion for summary judgment in lieu of complaint under CPLR 3213 over the objection of defendants that the guarantee agreements referenced “other obligations” and therefore were not “instrument[s] for the payment of money only” under the rule. In Flagstar Bank, N.A. v. Olive Tree Asset Management LLC, et al., Index No. 653863/2024, three guaranteeing defendants pointed to language in their guarantee agreements referencing other obligations in an effort to show that the agreement concerned more than just a simple guarantee of payment that would allow accelerated judgment. The Court disagreed, explaining: Read More
-
Posted: May 12, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Dismisses Action Brought By Real Estate Lenders and Lien Holders Concerning Allocation Of Building Expenses For Lack Of Standing
On April 11, 2025, Justice Andrea Masley granted a motion to dismiss an action brought by several lenders and lien holders on real property because their interest in the retail share of the property as collateral, even after a foreclosure and with power of attorney, did not suffice to give them standing. In Wilmington Trust, National Association, et al., v. Board of Managers 229 West 43rd Street Condominium, et al., Index No. 154811/2023, the lender plaintiffs sought a declaratory judgment declaring the allocation of expenses on façade work improper, as well as damages resulting from the allegedly improper allocation. The defendant board of managers moved to dismiss, arguing that the mere holding of promissory notes secured by a mortgage on parts of the property did not give the lenders standing to sue over expense allocation at the time it occurred, even if the lenders had since foreclosed on the collateral and secured power of attorney. The Court granted the motion to dismiss, explaining Read More
-
Posted: May 9, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerSummary Judgment Denied Where Fact Issues Remain Concerning Existence Of And Relationship Among Alleged Contracts
On March 30, 2025, Justice Joel M. Cohen denied summary judgment to defendant in an action asserting claims for breach of contract and quasi-contract arising from plaintiff’s employment. The case is Owen v. Array US, Inc., Index No. 651471/2022. Read More
-
Posted: May 7, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerLeave To Amend Claims Against Directors Not Barred By Corporate Bankruptcy Filing
On March 31, 2025, Justice Margaret A. Chan granted leave for plaintiff Hassan Ragab to file an amended complaint in an action alleging that the management of defendant SHR Capital Partners LLC had taken actions in bad faith that undervalued Ragab’s equity after he was removed as SHR’s Chief Executive Officer. The case is Ragab v. SHR Capital Partners LLC, Index No. 653527/2022. Read More
-
Posted: May 5, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerSummary Judgment Denied In Light Of Plaintiff’s Role In Defendant’s Delayed Performance
On April 11, 2025, in Seymour v. Hovnanian, Index No. 154579/2016, Justice Melissa A. Crane denied plaintiff’s motion for summary judgment seeking an order directing defendants (the “Hovnanians”) to immediately repair and remediate personal property damaged by repairs the Hovnanians had made to an adjoining property. Read More
-
Posted: April 25, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Denies Motion For Alternative Service
On April 8, 2025, Justice Margaret A. Chan denied plaintiff’s motion for alternative service pursuant to CPLR 308(5) in Yolanda Mgt. Corp. v. MicroAlgo, Inc., Index No. 650956/2024. The Court explained: Read More
-
Posted: April 23, 2025
Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. TurnerCourt Grants Motion To Dismiss Fraudulent Inducement Counterclaim As Contradicted By A Negotiated Representation In Agreement
On April 1, 2025, Justice Joel M. Cohen granted plaintiff’s motion to dismiss certain counterclaims, including one for fraudulent inducement. World Host Group US, Inc. v. O’Cloud Ventures, LLC, Index No. 654128/2023. The Court explained: Read More
