On March 11, 2014, a divided panel of the First Department issued a decision in Building Service Local 32B-J Pension Fund v. 101 Limited Partnership, 2014 NY Slip Op, 01544, addressing issues arising from a commercial tenant's breach of duty to repair its premises.
Building Service Local 32B-J Pension Fund arose out of a commercial lease that required the tenant to keep the premises in repair and to surrender it to the landlord in good condition. The landlord sent the tenant a notice stating that the tenant had violated its duty to repair and that it intended to enter the premises and conduct the repairs itself. In response, the tenant commenced the action and obtained a Yellowstone-type preliminary injunction—supported by a bond in excess of $4m—prohibiting the landlord from entering the premises to make repairs. After the lease expired, the landlord counterclaimed for damages arising from tenant's failure to repair, seeking, inter alia, damages for lost rent because the tenant's actions had delayed the landlord in repairing and re-leasing the premises. The tenant moved to dismiss that claim and to dissolve the bond, both of which were granted by the motion court.
The majority affirmed dismissal of the claim for delay damages, holding that:
On March 6, 2014, Justice Friedman of the New York County Commercial Division issued a decision in New York City Housing Authority v. Spectrum Contracting Group, Inc., 2014 NY Slip Op. 30568(U), illustrating the application of CPLR 5001 in computing pre-judgment interest.
CPLR 5001(b) provides the rule for determining the date from which pre-judgment interrest is computed:
On March 11, 2014, the First Department issued a decision in Apt v. Morgan Stanley DW, Inc., 2014 NY Slip Op. 01541, examining the application of the statute of limitations and discovery rules relating to fraud.
In Apt, an employee of the defendants "allegedly churned trades on" a brokerage account. The First Department affirmed the trial court's decision dismissing the complaint on statute of limitations ground, explaining:
On March 11, 2014, the First Department issued a decision in CashZone Check Cashing Corp. v. Vigilant Insurance Co., 2014 NY Slip Op. 01565, finding that money embezzled from an armored car service's vault was nonetheless "in transit" for purposes of insurance coverage.
CashZone Check Cashing arose out of the embezzlement of money being delivered to the plaintiff's ATMs. Mount Vernon Money Center ("MVMC")—a non-party—would collect cash from the Federal Reserve on plaintiff's behalf and then take the cash to MVMC's vault, where it would be loaded into ATM cassettes, which would then be placed into the plaintiff's ATMs. Over time, MVMC embezzled around $450,000 of the plaintiff's money by commingling it with other funds while it was in the vault.
The defendant, which insured plaintiff's cash while it was "in transit," denied coverage, and the motion court agreed, awarding defendant summary judgment because "the money was not stolen while it was in an armored vehicle or while the vehicle was being loaded or unloaded, or during an incidental stop, but, rather, during a substantive interruption of the transit process, while the money was inside MVMC's premises for sorting and processing."
The First Department reversed and awarded summary judgment to the plaintiff, holding that the money was "in transit" even while it was in MVMC's vault, explaining:
On February 26, 2014, Justice Schweitzer of the New York County Commercial Division issued a decision in Orient Overseas Associates v. XL Insurance America, Inc., 2014 NY Slip Op. 30488(U), dismissing a claim against a property insurance carrier for "bad faith claims handling" on the ground that no such cause of action exists under New York law, explaining:
On March 11, 2014, the First Department entered a decision in Sunquest Enterprises, Inc. v. Zar, 2014 NY Slip Op. 01551, addressing the issue of a contract entered into by an allegedly non-existent entity. In Sunquest Enterprises, the court examined the question of whether defendants who signed a contract on behalf of a non-existent entity were personally liable under the contract. While the
On March 5, 2014, Justice Karalunas of the Onondaga County Commercial Division issued a decision in Varano v. FORBA Holdings, LLC, 2014 NY Slip Op. 50312(U), addressing inappropriate counsel contact with jurors.
We have excerpted Justice Karalunas's opinion below. We think the practice tips are plain:
On February 28, 2014, Justice Ramos of the New York County Commercial Division issued a decision in J.P. Morgan Securities Inc. v. Vigilant Insurance Co., 2014 NY Slip Op. 50284(U), ruling that administrative orders by the SEC and a New York Stock Exchange hearing panel did not constitute a "judgment or other final adjudication" sufficient to trigger a Dishonest Acts Exclusion under
On March 5, 2014, the Second Department issued a decision in Maimonides Medical Center v. First United American Life Insurance Co., 2014 NY Slip Op. 01441, examining whether there is a private right of action against insurers under Insurance Law § 3224-a (the Prompt Pay Law).
In Maimonides Medical Center, the Second Department held that a health care provider can assert claims against an insurer for violating Insurance Law § 3224-a, the Prompt Pay Law, which "sets forth time frames within which an insurer must either pay a claim, notify the claimant of the reason for denying a claim, or request additional information." The court reasoned:
On February 28, 2014, Justice Scarpulla of the New York County Commercial Division issued a decision in Goldberg v. HSBC Securities (USA), Inc., 2014 NY Slip Op. 30481(U), examining the elements of a claim of aiding and abetting undue influence.
In Goldberg, the executor of an estate brought claims related to alleged undue influence over the decedent, including a claim for aiding and abetting undue influence against two defendants. In deciding the motion to dismiss brought by those defendants, the court considered whether such a tort existed and, if so, what its elements were, explaining: