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 »
Blogs
Posts Categorized: Real Property
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 »
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 »
Yellowstone Injunction Undertaking Cannot Be Used to Pay Use and Occupancy
On May 25, 2021, the First Department issued a decision in Booston LLC v. 35 W. Realty Co., LLC, 2021 NY Slip Op. 03277, holding that a Yellowstone injunction undertaking cannot be used to pay use and occupancy, holding: The subject bond was imposed on plaintiff for the specific purpose of protecting defendant from any... Read more »
Pandemic Does Not Excuse Commercial Tenant’s Obligations Under Lease
On May 19, 2021, Justice Cohen of the New York County Commercial Division issued a decision in Hugo Boss Retail, Inc. v. A/R Retail, LLC, 2021 NY Slip Op. 50458(U), holding that the Covid-19 pandemic did not excuse a commercial tenant’s obligations under its lease, explaining: A number of New York courts assessing commercial lease... Read more »
Deficiencies in Notice and Demand to Cure Bar Eviction
On April 2, 2021, Justice Walker of the Erie County Commercial Division issued a decision in Ronald Benderson 1995 Trust v. Erie County Med. Ctr. Corp., 2021 NY Slip Op. 21133, holding that deficiencies in a notice and demand to cure barred a commercial eviction, explaining: On March 7, 2020, New York State Governor, Andrew... Read more »
Party Asserting Unclean Hands Defense Must Have Been Injured by the Plaintiff’s Misconduct
On April 7, 2021, the Second Department issued a decision in Toobian v. Golzad, 2021 NY Slip Op. 02186, holding that a party asserting an unclean hands defense must have been injured by the plaintiff’s misconduct, explaining: The doctrine of unclean hands applies when the complaining party shows that the offending party is guilty of... Read more »
Fact Questions Preclude Dismissal of Claim Based on Oral Agreement to Purchase Real Estate on Statute of Frauds Grounds
On April 7, 2021, the Second Department issued a decision in Toobian v. Golzad, 2021 NY Slip Op. 02185, holding that fact questions precluded dismissal of claim based on an oral agreement to purchase real estate on statute of frauds grounds, explaining: The statute of frauds prohibits the conveyance of real property without a written... Read more »
Dispute Over Amount Owed No Defense to Foreclosure Action
On March 12, 2021, Justice Knipel of the Kings County Commercial Division issued a decision in VGM, LLC v. ISY Realty, LLC, 2021 NY Slip Op. 30749(U), holding that a dispute over the amount owed is not a defense to a foreclosure action, explaining: Turning first to the consideration of VGM’s motion for summary judgment... Read more »
New York’s Foreclosure Ban Did Not Bar Action for Foreclosure, Just Enforcement of the Judgment and Sale of Property
On March 4, 2021, Justice Cohen of the New York County Commercial Division issued a decision in Natixis, N.Y. Branch v. 20 TSQ Lessee LLC, 2021 NY Slip Op. 50249(U), holding that the New York foreclosure ban did not bar an action for foreclosure, just the enforcement of the judgment of foreclosure and sale of... Read more »