On May 20, 2021, the First Department issued a decision Capin & Assoc., Inc. v. Herskovitz, 2021 NY Slip Op. 03249, holding that a broker was not entitled to a commission because it was not the procuring cause of a sale, explaining: Plaintiff and defendants LLCs never entered into any explicit written or oral brokerage... Read more »
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Commercial Division Blog
Posts Categorized: Commercial
Alleged Failure of Law Firm to Have a Written Engagement Letter Insufficient Basis to Vacate Arbitral Award in Fee Dispute
On May 20, 2021, the First Department issued a decision in Matter of Gibson, Dunn & Crutcher LLP v. World Class Capital Group, LLC, 2021 NY Slip Op. 03252, holding that the alleged failure to have a written engagement letter was an insufficient basis to vacate an abritral award in a legal fee dispute, explaining:... Read more »
Unjust Enrichment and Breach of Contract Claims Not Duplicative When There is a Question of Fact Regarding the Existence of a Contract
On May 27, 2021, the First Department issued a decision in CIP GP 2018, LLC v. Koplewicz, 2021 NY Slip Op. 03370, holding that unjust enrichment and breach of contract claims are not duplicative when there is a question of fact regarding the existence of a contract, explaining: With respect to the unjust enrichment claim,... Read more »
Party Not Entitled to Rescission of Contract When it Had An Adequate Remedy at Law
On May 20, 2021, the First Department issued a decision in Sky Coverage Inc. v. Alwex Inc., 2021 NY Slip Op. 03271, holding that a plaintiff was not entitled to rescission when it had an adequate remedy at law, explaining: Although the motion court properly denied plaintiffs’ motion for summary judgment on plaintiffs’ rescission claim,... Read more »
Action Dismissed As Impermissible Duplicative Foreclosure Action
On May 5, 2021, Justice Knipel of the Kings County Commercial Division issued a decision in Flushing Bank v. 609 Kent Ave. Realty, Inc., 2021 NY Slip Op. 31633(U), dismissing a duplicative foreclosure action, explaining: RPAPL 1301(3) prohibits a party from commencing an action at law to recover any part of the mortgage debt while... Read more »
Theft of Funds in Lawyer’s Trust Account Insufficient Basis for a Claim for Conversion
On June 1, 2021, the First Department issued a decision in SH575 Holdings LLC v. Reliable Abstract Co., L.L.C., 2021 NY Slip Op. 03427, holding that the theft of funds from a lawyer’s trust account was an insufficient basis for a conversion claim, explaining: The court properly dismissed the claims for conversion. Where a conversion... Read more »
Allegations of Plaintiff’s Due Diligence Sufficient to Establish its Reasonable Reliance Necessary to State Fraud Claim
On May 27, 2021, the First Department issued a decision in Bullen v. CohnReznick, LLP, 2021 NY Slip Op. 03369, holding that allegations of the plaintiff’s due diligence were sufficient to establish that the plaintiff’s reliance on the defendant’s misrepresentations was reasonable, explaining: Plaintiffs also sufficiently alleged the element of reasonable reliance. They allegedly took... Read more »
First Department Upholds Forum Non Conveniens Dismissal
On May 27, 2021, the First Department issued a decision in EPK Brand, Inc. v. Leret, 2021 NY Slip Op. 03374, upholding a forum non conveniens dismissal, explaining: Supreme Court did not improvidently exercise its discretion in dismissing the complaint on forum non conveniens grounds. The factors considered by Supreme Court were the burden on... Read more »
Brokers Not Transferees for Purposes of Fraudulent Conveyance Claim
On June 1, 2021, the First Department issued a decision in McCormack Family Charitable Found. v. Fidelity Brokerage Servs., LLC, 2021 NY Slip Op. 03414, holding that brokers were not transferees for purposes of a fraudulent conveyance claim, explaining: The brokers were not transferees as contemplated by Debtor and Creditor Law § 276. A defendant... Read more »
Summary Judgment of Foreclosure Denied Because of Lack of Admissible Evidence of Payment Default
On May 7, 2021, Justice Knipel of the Kings County Commercial Division issued a decision in Majestic Crown NY LLC v. Archstone Acquisition Partners LLC, 2021 NY Slip Op. 31627(U), denying summary judgment on a foreclosure claim because of a lack of admissible evidence of a payment default, explaining: Generally, to establish prima facie entitlement... Read more »