Commercial Division Blog: Current Developments in the Commercial Divisions of the New York State Courts

On January 27, 2024, Justice Andrew Borrok of the New York County Commercial Division, issued a decision in Prosight Specialty Management Company v. Altruis Group, LLC, Index No. 653775/2023, granting plaintiff’s motion to dismiss the defendant’s counterclaims, including defendant’s counterclaim for breach of the implied covenant of good faith and fair dealing as duplicative of the defendant’s counterclaim for breach of contract. The Court explained: Read More

On January 26, 2024, Justice Melissa A. Crane granted plaintiffs’ motion for summary judgment regarding, inter alia, their breach of contract claim. The decision in Regions Bank v. VativoRX, LLC, Index No. 654741/20229, rejected defendant’s argument that the breach of certain terms in the credit agreement at issue requiring the provision of annual audited financial statements, along with related certifications and accompany documentation, and the transfer of accounts to plaintiffs were not material breaches. The Court disagreed: Read More

On December 30, 2023, Justice Joel M. Cohen of the New York County Commercial Division issued a decision in U.S. Bank, N.A., v. DLJ Mortgage Capital, Inc., et al., Index No. 653140/2015, dismissing claims, brought by the trustee of an RMBS trust, alleging that defendants failed to repurchase loans in the trust following the trustee's provision of notice of breaches of representations and warranties concerning loans in the trust, explaining: Read More

On December 29, 2023, Justice Joel M. Cohen found in favor of Plaintiff Brad Kruchten against Defendants Eastman Kodak Company Computershare, Inc., and Computershare Trust Company, N.A. in the amount of $1,293,916.88 on claims for damages Kruchten incurred when he was unable to exercise his Kodak stock options due to corporate errors. In its Decision after Non-Jury Trial, in Kruchten v. Eastman Kodak Co. et al., Index No. 656302/2020, the Court explained: Read More

On November 27, 2023, Justice Joel M. Cohen denied a motion brought by the defendant to amend its pleadings to add a new fraudulent inducement defense before renewing its motion for summary judgment in light of that new defense. The decision in Thomas O’Connor et al. v. Society Pass Incorporated, Index No. 656938/2019, indicated openness to the general procedure for amendment and renewal but found that the defendant had not made the required prima facie showing that its defense met the heightened pleading standard for fraud. The Court explained: Read More

On December 19, 2023, Justice Melissa A. Crane, of the New York County Commercial Division, issued a decision in Samsung Electronics Co. Ltd. v. MPEG LA, L.L.C., Index No. 656312/2022, granting plaintiff’s motion for summary judgment on its claim for breach of contract while denying defendant’s cross-motion to dismiss that claim. The court held that plaintiff’s claim was supported by the unambiguous language of the relevant agreement, and rejected the defendant’s argument that the parties’ agreement had been amended to reduce royalty payments to the plaintiff, explaining: Read More

On December 14, 2023, Justice Andrew Borrok of the New York County Commercial Division issued a decision in JDS Fourth Avenue JC II LLC, et al. v. Largo 613 Baltic Street Partners LLC, Index No. 651948/2020, granting defendants' motion for summary judgment and dismissing plaintiffs' claim for breach of an oral loan agreement, explaining: Read More

On September 28, 2023, Justice Andrew Borrok of the New York County Commercial Division issued a decision in Curia Global, Inc. v. Eagle Pharmaceuticals, Inc., Index No. 651064/2023, denying defendant’s motion to dismiss in its entirety. In relevant part, the Court rejected the defendant’s argument that a the contract’s liquidated damages provision was an unenforceable penalty where the contract required the defendant to pay, as liquidated damages, a set amount per batch of product that defendant firmly forecasted they would purchase from plaintiff, but did not ultimately purchase. The Court explained: Read More

On June 30, 2023, Justice Margaret Chan of the New York County Commercial Division issued a decision in Murphy v. PHG Funding LLC, 2023 N.Y. Misc. LEXIS 3327, denying the defendants’ motion to dismiss on statute of limitations grounds. Specifically, the Court rejected the defendants’ argument that the three-year statute of limitations found in the recently enacted Consumer Credit Fairness Act (“CCFA”) applied, holding that because the action was brought before the passing of the CCFA and there was no showing that the New York legislature intended the CCFA to apply retroactively, the standard six-year statute of limitations for a breach of contract action applied. The Court explained: Read More

On July 12, 2023, Justice Andrea Masley of the New York County Commercial Division issued a decision in 600-602 10th Ave. Realty Corp. v. Estate of Nusimow, 2023 N.Y. Misc. LEXIS 3465. The Court denied the Plaintiff’s motion for summary judgment, primarily on the basis that the same Plaintiff had moved for summary judgment on the same claims six years prior, which the Court had denied, finding issues of fact existed. The Court explained: Read More

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

In an Opinion, dated May 1, 2023, in Richmond Global Compass Fund Mgt., GP, LLC v. Nascimento, 2023 NY Slip Op 31448(U), Justice Andrew Borrok granted in part defendant’s motion to dismiss. The matter concerned, inter alia, claims for breach of an agreement’s non-competition and non-solicitation provisions. The Court explained: Read More

In a decision dated April 27, 2023, in ROAM Capital, Inc. v. Asia Alternative Management, LLC, Index No. 651728/2019, First Department Case No. 2022-01318, the First Department unanimously reversed, on the law, the decision of the Motion Court (Jennifer Schecter, J.), which dismissed the supplemental amended complaint (SAC) with prejudice pursuant to CPLR 3211. In reversing the Motion Court’s decision as to the SAC’s claim for breach of contract and other arising out of a “right of first refusal” provision in the applicable agreement, the First Department explained: Read More

In a Decision and Order, dated January 30, 2023, in UniLoeb Holdings LLC v. Shamus, Index No. 651136/2022, Justice Andrew Borrok of the New York County Commercial Division denied defendants’ argument that the claims for breach of the Operating Agreement and for an equitable accounting were moot and that it was not required to comply with certain discovery orders because a stay of discovery from non-parties was in place. The Court explained: Read More

On December 20, 2023, Justice Andrew Borrok of the New York County Commercial Division issued a case in Ametek, Inc. v. Goldfarb, 2022 N.Y. Misc. LEXIS 7917, dismissing the defendants’ counterclaim for rescission but denying the motion to dismiss the counterclaim for reformation where the defendants did not dispute that there was a meeting of the minds as to the relevant contract provision but disputed whether the provision in the written contract reflected the agreement of the parties, explaining: Read More

On December 28, 2023, Justice Melissa A. Crane of the New York County Commercial Division issued a case in NW Media Holdings Corp. v. IBT Media Inc., 2022 N.Y. Misc. LEXIS 8386, holding that where a closely held company’s by-laws require approval by a majority of the board or shareholders to bring litigation, the president of that corporation does not have the authority to bring litigation in the name of the corporation absent such a vote, explaining: Read More

In an Amended Decision and Order, dated December 3, 2022, in EarthLink, LLC v. Charter Commc’ns Operating, LLC., Index No. 654332/2020, Justice Andrea Masley granted in part and denied in part Defendant’s motion to dismiss Plaintiff’s claim for breach of the implied covenant of good faith and fair dealing based on Defendant’s making false representations to EarthLink’s subscribers and by wrongfully increasing the price of EarthLink’s service to its subscribers.  The Court explained: Read More

In a Decision and Order, dated August 22, 2022, in 57th & 60th St. Lender LLC v. State Bank of Tex., Index No. 654007/2018, Justice Jennifer Schecter of the New York County Commercial Division found the phrase “repaid in full” in a mortgage loan sale agreement to be ambiguous and, after holding a bench trial, resolved that ambiguity in favor of plaintiff and awarded damages in the amount plaintiff would have recovered on the loans had the agreement not been breached plus interest and attorneys’ fees. The Court explained: Read More

In a Decision, dated October 27, 2022, in 34-06 73, LLC v. Seneca Ins. Co. (2022 NY Slip Op 06029), the Court of Appeals held that the lower court abused its discretion as a matter of law when it granted plaintiffs’ motion to amend to include a time-barred claim. The Court explained: Read More

On April 8, 2022, in AFL Constr. Co., Inc. v. Roosevelt Is. Operating Corp., Index No. 656072/2021, Justice Ostrager of the New York County Commercial Division denied defendant’s pre-answer motion to dismiss plaintiff’s breach of contract claim rejecting defendant’s argument that dismissal was proper where plaintiff did not provide its “notice of claims” in accordance with the literal language of the contract.  The Court held that it was premature to dismiss the breach of contract claim at the pre-answer motion to dismiss stage because a dispute exists as to whether plaintiff’s notices were sufficient to comply with the meaning, purpose, and intent of the contract. Read More

In a Decision and Order dated May 5, 2022, in Coulter v. Sorenson, 2022 NY Slip. Op. 31480(U), Justice Barry R. Ostrager granted defendants’ motion to dismiss plaintiff’s fraud claim as duplicative of plaintiff’s surviving breach of contract claim. Read More

In a Decision and Order dated May 11, 2022, in MacDonald v. GuarantR, Inc.., 2022 NY Slip. Op. 31525(U), Justice Joel M. Cohen granted defendant’s motion for summary judgment on Plaintiff’s claim for breach of contract stemming from defendant’s refusal to issue shares to plaintiff pursuant to a stock option provision in a consulting agreement between plaintiff and defendant.  To be entitled to the shares, plaintiff had to exercise the option within three months of the termination of his service relationship with defendant.  Service relationship was defined, in turn, as “the continuous period during which” plaintiff was “engaged as a consultant by and/or [is] engaged in another service relationship with, the Company”. Read More

On May 9, 2022, in a decision and order in AmBase Corp. v. 111 W. 57th Sponsor LLC, 2022 NY Slip. Op. 31503(U), Justice Joel M. Cohen denied Defendant’s motion to dismiss a breach of contract cause of action premised on Defendant’s obtaining financing for a development project to fund capital calls that allegedly encumbered Defendant’s interest in the project. Read More

On March 29, 2022, in Board of Mgrs. of the St. Tropez Condominium v. JMA Consultants, Inc., INDEX NO. 656079/2018, Third-Party Index No. 596075/2019, Justice Andrew Borrok of the New York County Commercial Division denied those portions of third party defendant contractor’s motion to dismiss the amended third party complaint alleging breach of contract and contractual indemnification because the contractual language is clear that the third party plaintiff architect/engineer was an intended beneficiary of the contract. Read More

On March 3, 2022, in Zhang Chang v. Phillips Auctioneers LLC, 2022 NY Slip. Op. 01383, the First Department affirmed an Order of Justice Jennifer G. Schecter, which granted defendant’s motion to dismiss causes of action for breach of contract and unjust enrichment.  In affirming, the First Department rejected the plaintiff’s argument that an acknowledgement of the debt was voidable because it had been signed under duress.  Read More

On April 21, 2022, in Anexia, Inc. v. Horizon Data Solutions Ctr., LLC, Index No. 657444/2019, Justice Robert R. Reed of the New York County Commercial Division, among other things, granted plaintiff’s motion to dismiss defendant’s counterclaim for tortious interference but denied its motion to dismiss the counterclaim for breach of the implied duty of good faith and fair dealing. The Court explained that while a tortious interference claim grounded on the same conduct as a breach of contract claim are duplicative, under certain circumstances New York recognizes the implied duty of good faith and fair dealing as an independent cause of action. Read More

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