Commercial Division Blog

Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: September 15, 2021

Guaranties For Payment And Performance Are Not Instruments For Payment Of Money Only And Therefore Do Not Provide A Basis For Summary Judgment In Lieu of Complaint Under CPLR § 3213

On September 3, 2021, in Bank of America, N.A. v. Filho et al., N.Y. Sup. Ct. Index No. 654603/2019, Justice Andrea Masley issued a Decision and Order granting the motion of certain defendants (“Guarantors”) to reargue and renew pursuant to CPLR 2221 and, upon reargument and renewal, denying Plaintiff’s motion for summary judgment in lieu of complaint.  (Schlam Stone & Dolan LLP was prior counsel for the moving defendants).  The Court explained:






Posted: September 13, 2021

Courts Will Not Imply a Contract When There Is an Express Written Agreement

On August 24, 2021, Justice Ostrager of the New York Commercial Division issued a decision in Tri-City ValleyCats, Inc. v. Houston Astros, Inc., 2021 NY Slip Op 50802(U), holding that while “New York law recognizes the concept of a binding agreement implied from the parties’ words and conduct”, none will be “implied in fact where there is an express contract covering the subject matter involved”. . . .


Posted: September 10, 2021

RPAPL Broad Standing Rules Inapplicable Where Claim Really About Ownership of LLC

On August 26, 2021, the First Department issued a decision in FGP 1, LLC v Dubrovsky, 2021 NY Slip Op 04789, affirming dismissal of a counterclaim on a motion to dismiss for lack of standing holding that counterclaim plaintiffs mischaracterize their claim as one for a declaration to quiet title when it really involves ownership of a Delaware LLC . . . .


Posted: September 1, 2021

Worker Injured While Replacing Fan in Building that Required Replacement “All the Time” Cannot Sue Under Labor Law § 240(1)

On July 28, 2021, the Second Department issued a decision in Stockton v. H&E Biffer Enters. No. 2, LLC, 2021 NY Slip Op 04568, affirming dismissal of a personal injury claim under Labor Law § 240(1) on summary judgment holding that an employee injured while preforming “routine maintenance” could not state a cause of action. . . .


Posted: August 27, 2021

Co-Op Owner Required to Pay Use and Occupancy For Maintenance Pendente Lite

On August 11, 2021, the Second Department issued a decision in Tavor v. Lane Towers Owners, Inc., 2021 NY Slip Op 04676, holding that a co-op owner was required to pay past and prospective use and occupancy for his maintenance pendente lite, and that this obligation arose not from an underlying contract between landlord and occupant but based on quantum meruit, explaining:


Posted: August 25, 2021

Owners of Residential Units in Luxury Condominium Were Third-Party Beneficiaries of Clause in Ground Lease Concerning Quality of Hotel To Be Operated on Lower Floors of Building

On August 5, 2021, the First Department issued a decision in Residential Board of Millennium Point v. Condominium Board of Millennium Point, 2021 NY Slip Op 04649, holding that owners of residential units in a condominium were intended third-party beneficiaries of a ground lease between Hugh L. Carey Battery Park City Authority as landlord and the building’s sponsor as tenant, because a clause in the ground lease providing for the quality of the hotel to be operated in the building to meet a particular standard was intended for the benefit of the building’s residential owners, explaining:


Posted: August 23, 2021

Under Principle of Ejusdem Generis, Use of “Any and All” In Contract Clause Before List of Specific Activities Does Not Expand Clause Beyond Activities Specified

On July 30, 2021, Justice Ostrager of the New York County Commercial Division issued a decision in Levy v. Zimmerman, 2021 NY Slip Op 50738(U), holding that the use of the words “any and all income” in a contract preceding a list of specified activities the income from which plaintiff was entitled to a percentage did not expand the plaintiff’s entitlement to income to activities beyond the specified ones listed, explaining:


Posted in Commercial, Contracts