As mortgage loan transactions continue to become increasingly complex, lenders often worry about the remedies they have if borrowers fail to live up to their obligations. In the event of a default, lenders have the choice under New York’s election of remedies statute (RPAPL § 1301 (1)) to either (i) enforce the note
Injunctions
First Step in Successfully Fending off a Yellowstone Application: Be Sure To Give Valid Notice of Default


Several weeks back, we reported on an apparent uptick in commercial lease disputes over the last 18 months in this new COVID era. It only follows that there would be a corresponding uptick in Yellowstone applications from commercial tenants embroiled in such disputes.
As most readers know, injunctive relief under Yellowstone preserves the “status quo”…
The Importance of Understanding The Contractual Limits of Restrictive Covenants (Part II)
In one of my first posts, entitled Restrictive Covenants: The Importance of Understanding Their Contractual Limits, I wrote about a First Department decision upholding a portion of Justice Andrea Masley’s Order enjoining a defendant modeling agent and agency from unfairly competing, disclosing, or misappropriating the plaintiff’s confidential information and interfering with the plaintiff’s contractual…
Preliminary Injunctions: Jurisdictional Issue Undermines Likelihood of Success on the Merits

It is well settled that in order to obtain a preliminary injunction pursuant to CPLR 6301, a plaintiff has the burden to establish “(1) a likelihood of success on the merits of the action; (2) the danger of irreparable injury in the absence of preliminary injunctive relief; and (3) a balance of equities in favor of the moving party.” Id. at *2 citing Nobu Next Door, LLC v. Fine Arts Housing, Inc., 4 N.Y.3d 839 (N.Y. Ct. App. 2005).
At the outset, the court addressed the issue of whether the court had jurisdiction over Chateauvert, a Canadian resident. Id. at *2. In September 2013 and two years after graduation from college, Chateauvert signed a Confidentiality and Non-Compete Agreement (“Agreement”) related to Chateauvert’s employment with Setter. Id. The Agreement contains a choice of law and forum selection clause selecting New York law as governing law and New York courts as the exclusive venue and jurisdiction for disputes. Id. at *2.
In its analysis, the court addressed the question of the enforceability of the choice of law and forum selection clause of the Agreement (as an employment agreement) under Sections 5-1401 and 5-1402 of New York’s General Obligation Law (“GOL”). Id. at *2-3. “GOL § 5-1401 provides for the enforcement of choice of law provisions in contracts over $250,000 and GOL § 5-1402 provides for the enforcement of forum selection provisions in contracts over $1,000,000. Id. The court explained that that GOL § 5-1401 is inapplicable to contracts for “labor or personal services,” and although GOL § 5-1402 allows for actions based on contracts against non-residents to be maintained in New York “where: (1) the contract contains a choice of law clause pursuant to GOL § 5-1401,” that neither section was applicable in the case. Id. at 3 (citation omitted). Reading into the legislative intent behind these GOL provisions, the court also questioned whether Chateauvert, just two years out of college, was the “sophisticated business person the legislature envisioned in 1985 when GOL § 5-1401 and § 5-1402 were enacted.” Id. at *3.
The court determined that “if the court cannot exercise jurisdiction pursuant to the Agreement, then plaintiff must establish jurisdiction.” Setter, supra, at *3. The court found that the jurisdictional issue was “an issue of fact that undermines plaintiff’s likelihood of success.” Id.Continue Reading Preliminary Injunctions: Jurisdictional Issue Undermines Likelihood of Success on the Merits
Restrictive Covenants: The Importance of Understanding Their Contractual Limits
If supermodel Tyra Banks has taught us anything about the modeling industry, it’s that the competition is fierce. Unfortunately, one Manhattan-based modeling agency and former agent aren’t learning this lesson on the runway—they’re learning it in a courtroom.
In a recent decision, the First Department upheld a portion of Justice Andrea Masley’s Order…
No Home Court Advantage for US Tennis Association: Court Finds Violation of Restraining Notice
Looks like the United States Tennis Association (“USTA”) met its match, but this time not on its own court, but rather in another, the Appellate Division, Second Department. The court in Matter of Bravado Intl. Group Merchandising Servs., Inc. v United States Tennis Assn. Inc., recently affirmed the judgment of Westchester Commercial Division Justice…
Commercial Division Judge Reaffirms “Most Critical” Element for Injunctive Relief: Irreparable Harm

Most litigators know that a preliminary injunction is a “drastic remedy” which is not “routinely granted.” Reading these words on paper, however, does not adequately convey the high threshold that a party must meet when seeking this extraordinary relief. Seeking an injunction – especially in the Commercial Division – is usually an uphill battle for…
Check the Rules Part VII – Recent New-Rule Proposal Encourages Lawyers and Courts to Get Down to Brass Tacks Early in the Case

The New York Commercial Division was founded in 1993 “to test whether it would be possible, by concentrating on commercial litigation, to improve the efficiency with which such matters were addressed by the court and, at the same time, to enhance the quality of judicial treatment of those cases.” Among other things, its continual adoption…