Commercial Division Blog

Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: October 20, 2021

Prior Decision in Minnesota Court Against Borrower Precluded Guarantor From Raising Issue in New York

On September 30, 2021, the First Department issued a decision in Gamma Lending Omega LLC v. Kaminski, 2021 NY Slip Op 05165, unanimously affirming prior orders of Justice Andrew Borrok, denying defendants’ motion to compel production of certain documents related to a late charge assessed on the underlying loan and granting plaintiff’s motion for summary judgment. The Court explained that because there is privity between the borrower and the guarantor:



Posted: October 15, 2021

Minority Shareholders Could Not Claim Fraudulent Inducement Due To Letter Release

On October 5, 2021, the First Department issued a decision in Silver Point Capital Fund, L.P. v. Riviera Resources, Inc., 2021 NY Slip Op 05312, affirming an order of Justice Andrew Borrok, granting defendant’s motion to dismiss an amended complaint.  The Plaintiffs, former minority shareholders of the defendant, claimed that defendant fraudulent induced them to sell it all of their shares just three weeks before the announcement of an asset sale that caused share prices to rise and allowed defendant to make a substantial distribution to shareholders.  In affirming the dismissal, the Court explained:


Posted in Commercial
Posted: October 13, 2021

First Department Holds That Proposed Documentary Evidence Did Not Conclusively Establish That Fuel Oil Met Specifications In Purchase Contract And That General Warranty Disclaimer Is Ineffective As To Required Specifications For Fuel Oil In The Contract

On October 1, 2021, in Glencore Ltd. v Freepoint Commodities LLC., Index No. 653431/19 and First Department Case No. 2020-02381, the First Department unanimously affirmed an Order of Justice Joel M. Cohen, which denied Defendant’s motion to dismiss pursuant to CPLR 3211(a)(1) and (a)(7).  The Court explained:


Posted in Commercial
Posted: October 8, 2021

Settlement Agreement Providing that Trustees to Distribute Shares as if “Subsequent Recovery” Ignored as “Gap Filler”

On August 19, 2021, in Matter of Wells Fargo Bank v Aegon USA Inv. Mgt., LLC, 2021 NY Slip Op 04740, the First Department issued a decision holding, inter alia, that even though the settlement agreement set forth the means for calculating and distributing the allocable share to each of the settlement trusts, the trustees overseeing the administration and distribution of a $4.5 billion settlement involving more than 300 residential mortgage-backed security (RMBS) trusts could make payment in accordance with the settlement agreement only when the pooling and servicing agreements (PSAs) were silent, explaining:


Posted: October 6, 2021

Summary Judgment for Breach of Contract Denied Where Plaintiff Failed to Show it Satisfied Contractual Condition Precedents to Terminate for Cause

On August 25, 2021, in Turner Towers Tenant Corp. v RCI Plumbing Corp., 2021 NY Slip Op 04774, the Second Department affirmed denial of plaintiff’s motion for summary judgment for breach of contract because plaintiff failed to demonstrate that it had satisfied contractual condition precedent for termination for cause, explaining:


Posted: October 4, 2021

Court Enjoins Dilution of Membership Interest Despite Past Practice

On August 25, 2021, in Lengyel-Fushimi v. Bellis, et al., Kings Supt. Ct. Index No. 512764/2021, Justice Ruchelsman denied leave to reargue its prior decision granting plaintiff a preliminary injunction enjoining the other members from diluting his membership interest by majority vote where the operating agreement required unanimous approval regardless of past practice, explaining:


Posted: September 29, 2021

Summary Judgment for Mechanic’s Lien Inappropriate Where Defendant Failed to Account for All Items Listed in Lien Statement

On September 15, 2021, the Second Department issued a decision in J&M Indus., Inc. v Red Apple 180 Myrtle Ave. Dev., LLC, 2021 NY Slip Op 04966, holding that where a defendant moved for summary judgment on a mechanic’s lien on the grounds that the plaintiff executed a series of releases in connection with payments received that exceeded the total amount the plaintiff sought in an itemized lien statement, summary judgment should be denied where defendant failed to put forth evidence accounting for all of the items in the lien statement. . . .


Posted: September 27, 2021

Conflicting Expert Opinions Sufficient to Defeat Summary Judgment in Medical Malpractice Case

On May 2, 2019,  Justice Jamieson of the Westchester County Commercial Division issued a decision in Casola v Northern Westchester Hosp. Assn., 2019 NY Slip Op 34199(U), holding that in a medical malpractice case competing expert opinions create a triable issue of fact sufficient to defeat a motion for summary judgment. . . .