As readers of this blog are aware—click here, here, here, and here for related posts—the CPLR 3213 motion for summary judgment in lieu of complaint can be a powerful tool to secure an expedited judgment, “meld[ing] pleading and motion practice into one step, allowing a summary judgment motion to be made before
Motions
Oral Modifications to Written Agreements? Better Get Them in Writing Says the Commercial Division
In Castle Restoration & Constr., Inc. v Castle Restoration, LLC, Suffolk County Commercial Division Justice Elizabeth H. Emerson refused to enforce an oral agreement that allegedly modified a prior written agreement between the parties. In this blog post, we see how the Court applied a variety of contractual principals to determine the validity of…
Buyer’s Remorse Does Not Constitute Duress, Holds First Department
A recent decision from the First Department reminds us that New York courts are not sympathetic to duress claims when the alleged acts or threatened acts fall within the ambit of the defendant’s rights under a valid agreement.
In Zhang Chang v Phillips Auctioneers LLC, the First Department affirmed Manhattan Commercial Division Justice Jennifer…
All You Need Is Love… And An Articulable Nexus Of Fraud
What can you do when the parties you are suing are effectively judgment-proof? Oftentimes, plaintiffs will try to go after a defendant’s family member or related entity. However, as we see in a recent case from the courtroom of Manhattan Commercial Division Justice Robert R. Reed, New York courts require more than just a…
Defendants Get Lit Up by the Court on the Fifth Day of Hanukkah
It’s not often that a lawsuit in the Commercial Division between sophisticated parties to an arm’s-length business transaction warrants a blistering rebuke of the parties by the Court. But on December 3, 2021, New York County Commercial Division Justice Andrew Borrok issued a scathing decision in a case entitled Extended CHAA Acquisition, LLC v Mahoney…
Oops! They Did it Again: New York Courts Continue to Dismiss Lawsuits Based on Contractual Disclaimers
A few weeks ago, I blogged about the Arco Acquisitions, LLC, v Tiffany Plaza LLC et al. decision, in which Suffolk County Commercial Division Justice Elizabeth Hazlitt Emerson held that the plaintiff’s fraud claims were barred by the specific disclaimer provisions contained in the parties’ agreement to purchase commercial real property.
A recent decision from…
Prejudgment Attachment Orders: High Stakes, Higher Burden
In expensive lawsuits involving fraud claims, the temptation of a defendant to play hide and seek with its assets can be high. To prevent this result, CPLR § 6201 provides a mechanism (i.e., prejudgment attachment order) to preserve such assets. However, in a recent decision from the Suffolk County Commercial Division, Justice Elizabeth H.
Fraud Claims Dismissed Based on the “As Is, Where Is, and With All Faults” Contractual Provision
Nobody likes fraud claims asserted against them. Thankfully for defendants, fraud claims are notoriously difficult to prove, and defendants often try to have these claims dismissed at the pleading stage.
An express disclaimer in a contract is often a popular avenue for litigants facing a fraud claim to move for dismissal. A recent Commercial Division…
Joint Venture Agreements: For Better or For Worse; In Profit or In Loss
Just like a bride and groom vow to join together for better or for worse, commercial parties joining together through a joint venture must make a similar promise to share in profits and losses. In a recent decision from the Suffolk County Commercial Division, Justice Elizabeth H. Emerson took a close look at the parties’…
New Supreme Court Rule on Summary Judgment Motions: “Just the Facts, Ma’am”
Practitioners often choose to practice in the Commercial Division because of its well-documented efficiencies. Thus, many were happy to hear that Chief Administrative Judge Larry Marks issued Administrative Order 270/2020 (“AO 270/20”), which incorporated features of the Commercial Division into the Uniform Civil Rules for the Supreme and County Courts (the “Uniform Rules”). My colleague…