Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: November 30, 2013
On November 27, 2013, the Second Department issued a decision in Gover v. Savyon, 2013 NY Slip Op. 07934, interpreting Judiciary Law § 478 in a situation where an attorney who was not licensed to practice in New York provided legal services both in New York and in another jurisdiction.
In Gover, plaintiff, an Israeli attorney not licensed to practice in New York, sued defendant "to recover fees for legal services." Defendant argued that the complaint should be dismissed because plaintiff "was barred under Judiciary Law § 478 from recovering fees for such services" because he was not licensed in New York. The trial court granted defendant's motion for summary judgment on this ground with respect to "legal services that the plaintiff undisputably rendered to the defendant in New York," but "otherwise denied the motion."
The Second Department affirmed, writing:
Posted: November 29, 2013
On October 7, 2013, we noted that on October 9, 2013, the Court of Appeals would hear argument in Nash v. The Port Authority of New York and New Jersey, Docket No. 238. On November 26, 2013, the Court of Appeals issued its decision in Nash, 2013 NY Slip Op. 07830, clarifying that even final judgments may be vacated under CPLR 5015.
On January 14, 2010, Nash received a judgment for $4.4 million against the Port Authority of New York and New Jersey for injuries she sustained in the 1993 World Trade Center bombing. The First Department affirmed the trial court's decision on June 2, 2011. The judgment became final on July 13, 2011, "due to the failure of the Port Authority to appeal" the First Department's affirmance to the Court of Appeals.
The Court of Appeals subsequently issued a decision in In Matter of World Trade Center Bombing Litig. ("Ruiz"), 17 NY3d 428 (2011), holding that "the governmental immunity doctrine insulated the Port Authority from tortious liability for injuries sustained in the" bombing. Four days later, the Port Authority moved to vacate Nash's judgment against it based on the Ruiz decision. The trial court granted the motion in a decision that a divided First Department affirmed.
The Court of Appeals ruled that even though the first judgment against the Port Authority was final, the Port Authority could still move to vacate it under CPLR 5015, writing:
Posted: November 28, 2013
On October 7, 2013, we noted that on October 8, 2013, the Court of Appeals would hear argument in Eujoy Realty Corp. v. Van Wagner Communications, LLC, Docket No. 179. On November 26, 2013, the Court of Appeals issued its decision in Eujoy Realty Corp. v. Van Wagner Communications, LLC, 2013 NY Slip Op. 07823, strictly enforcing the written terms of a lease even though that resulted in a commercial tenant forfeiting almost a year's rent.
The commercial lease at issue in Eujoy, provided that the yearly rent for a billboard was to be paid "in advance on January 1" and that if the lease were "terminated for any reason prior to the date of its expiration," the tenant advertising company would "not be entitled to the return of . . . any basic rent paid in advance and covering a period beyond the date on which the Lease is terminated," with exceptions not relevant here.
"In early January 2007," the tenant sent the landlord a check for the "annual basic rent," but soon thereafter stopped payment on the check. A few weeks later, the tenant termminated the lease. The landlord sued for the unpaid rent.
The Court of Appeals held that the tenant owed the annual rent, even though the year was only two weeks old when the tenant terminated the lease. The court explained:
Posted: November 27, 2013
On November 15, 2013, Justice Kapnick of the New York County Commercial Division issued a decision in Kellman v. Whyte, 2013 NY Slip Op. 32938(U), granting in part and denying in part the defendants’ motion to compel arbitration. In Kellman, plaintiff asserted claims against her former employer, an affiliate of her former employer and the LLC for which she had
Posted: November 26, 2013
On October 26, 2013, we noted that on October 15, 2013, the Court of Appeals had heard argument in Cruz v. TD Bank, N.A., Docket No. 191, a matter considering two questions certified from the Second Circuit on whether there is a private right of action under the Exempt Income Protection Act of 2008 ("EIPA"). On November 21, 2013, the Court of