Commercial Division Blog

Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP

Posts Categorized: Commercial

Posted: January 12, 2020

Alleged Lack of Documentary Evidence Referring to an Oral Contract Insufficient Basis for Dismissing Claim Alleging Such a Contract

On December 19, 2019, Justice Schecter of the New York County Commercial Division issued a decision in Ripka v. Stenzler, 2019 NY Slip Op. 33688(U), holding that an alleged absence of documentary referring to an oral contract was an insufficient basis for finding that no such contract existed, explaining: Defendants seek dismissal of the declaratory... Read more »

Posted: January 11, 2020

Three Year Statute of Limitations for Professional Malpractice Cannot be Extended by Re-characterizing Claims as Contract Claims

On December 26, 2019, the Third Department issued a decision in WSA Group, PE-PC v. DKI Eng’g & Consulting USA PC, 2019 NY Slip Op. 09339, holding that the three-year statute of limitations for professional malpractice cannot be extended by re-characterizing claims as contract claims, explaining: A three-year statute of limitations governs actions to recover... Read more »

Posted: January 10, 2020

Fraud Claim Dismissed; Plaintiff’s Reliance on Alleged Misrepresentations was Unreasonable Due to Plaintiff’s Failure to Exercise Due Diligence

On December 26, 2019, the First Department issued a decision in Unique Goals Intl., Ltd. v. Finskiy, 2019 NY Slip Op. 09381, affirming the dismissal of a fraud claim because the plaintiff’s reliance on the alleged representations was unreasonable, explaining: We affirm the dismissal of the fraud cause of action on the ground that the... Read more »

Posted: January 9, 2020

Questions of Fact Regarding Defendant’s Alleged Misconduct Precluded Dismissal Based on Construction Contract’s No Damages for Delay Clause

On December 26, 2019, the First Department issued a decision in Tyrek Hgts. Erectors, Inc. v. WDF, Inc., 2019 NY Slip Op. 09386, holding that questions of fact regarding a defendant’s alleged misconduct precluded dismissal based on a construction contract’s no damages for delay clause, explaining: Plaintiff has met its burden of pointing to evidence... Read more »

Posted: January 7, 2020

Judgment Creditor Did Not Create Lien on Debtor’s Property Because Debtor’s Name Was Misspelled

On December 18, 2019, the Second Department issued a decision in Matter of Fischer v. Chabbott, 2019 NY Slip Op. 09002, holding that a judgment creditor failed to create a lien on a debtor’s property because the debtor’s name was misspelled on the judgment the creditor had docketed, explaining: CPLR 5203(a) gives priority to a... Read more »

Posted: January 6, 2020


The information below is from the City Bar Association regarding a program on the Chief Judge’s presumptive ADR initiative. Wednesday, January 22, 2020 | 6:00 p.m. – 8:00 p.m. Program Fee: There is no fee for this event. Please register here. Description: Administrative Judges and key Administrators will discuss the ongoing implementation of the Chief... Read more »

Posted: January 6, 2020

Buyer Attorney Letter Refusing to Close on Real Estate Transaction Based on Mistaken View That Seller Had Breach Constituted Anticipatory Breach

On December 18, 2019, the Second Department issued a decision in Lamarche Food Prods. Corp. v. 438 Union, LLC, 2019 NY Slip Op. 08995, holding that a letter from a buyer’s attorney refusing to close on a real estate transaction based on the mistaken view that the seller had breached the sale agreement constituted an... Read more »

Posted: January 5, 2020

Foreign Judgment Takes Precedence over Settlement Agreement That the Judgment Enforced

On December 24, 2019, the Second Department issued a decision in Bernardo v. Ramos, 2019 NY Slip Op. 09245, holding that a foreign judgment takes precedence over a settlement agreement that the judgment enforced, explaining: The parties entered into a compromise agreement dated May 18, 2004, in the Philippines, whereby the defendant agreed to pay... Read more »

Posted: January 4, 2020

Defendant’s Incarceration Not Reasonable Excuse for Default When Defendant Was Represented by Counsel

On December 19, 2019, the First Department issued a decision in Matter of Wimbledon Fin. Master Fund, Ltd. v. Sage Group Consulting Inc., 2019 NY Slip Op. 09109, holding that a defendant’s incarceration was not a reasonable excuse for a default when the defendant was represented by counsel, explaining: To vacate a default judgment under... Read more »