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New York Commercial Division Case Compendium A Searchable Database of Court Decisions Issued by New York’s Commercial Division

Category Archives: Whelan, Thomas

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Motion to Dismiss for Failure to Join Necessary Party Denied, Defendant Failed to Establish Non-Party Beyond the Court’s Jurisdiction

Posted in Arbitration, Insurance, Motion to Dismiss, Suffolk, Whelan, Thomas

In a December 4, 2014 Commercial Division decision by Justice Whelan, the court denied the defendant’s motion to dismiss for plaintiff’s alleged failure to join a necessary party, and to compel arbitration in the alternative. The plaintiff alleged the defendant was an alter ego of a non-party company for whom the plaintiff contractually agreed to… Continue Reading

Summary Judgment Granted Where Third-Party Plaintiff Failed to Properly Exercise Option Upon Which Breach of Contract Based

Posted in Banking, Breach of Contract, Suffolk, Summary Judgment, Whelan, Thomas

In a December 4, 2014, Commercial Division decision by Justice Whelan, the court granted the third-party defendant’s motion for summary judgment dismissing the third-party complaint. The main action was commenced against the multiple defendants to foreclose the lien of a consolidated mortgage, which had been assigned to the plaintiff VFC Partners 19, LLC by third-party… Continue Reading

Public Confusion Arising from Cold Spring Harbor Construction Company’s Use of Trade Name Similar to Competitor’s Warrants Preliminary Injunction

Posted in Construction, Preliminary Injunction, Suffolk, Whelan, Thomas

In a November 20, 2014, Commercial Division decision by Justice Whelan, the court granted the plaintiff’s motion for preliminary injunctive relief. The plaintiff, Cold Spring Harbor Construction, Inc. (“CSHC, Inc.”) commenced the action seek to restrain and enjoin the defendant, Cold Spring Builders, Inc. (“CSB, Inc.”), a newly formed from using and employing the trade… Continue Reading

Dental Office Purchaser Fails to Establish Claims of Fraud and Breach against Seller on Summary Judgment

Posted in Fraud, Healthcare, Promissory Note, Rescission, Suffolk, Summary Judgment, Whelan, Thomas

In a September 26, 2014 Commercial Division decision by Justice Whelan, the court granted in part a motion for summary judgment by the defendants, sellers of a dental practice to Plaintiff, a dental professional corporation.  Plaintiff purchased a dental practice from the defendants and later argued that defendants breached certain of their obligations under the… Continue Reading

Former Employees Enjoined from Using Customer Information, Pricing Schedules Copied From Motorcycle Apparel Manufacturer

Posted in Breach of Fiduciary Duty, Estoppel, Preliminary Injunction, Suffolk, Whelan, Thomas

In a November 6, 2014 Commercial Division decision by Justice Whelan, the court granted a motion for preliminary injunction enjoining Defendants, former employees of Plaintiff wholesaler, from disclosing and using confidential information and trade secrets of Plaintiff. 

Real Estate Broker’s Action to Recover Commission Dismissed for Failure to State a Claim sounding in Quantum Meruit or Unjust Enrichment

Posted in CPLR 3211, Estoppel, Failure to State a Claim, Motion to Dismiss, Real estate, Suffolk, Unjust Enrichment, Whelan, Thomas

In an October 21, 2014 Commercial Division decision by Justice Whelan, the court granted the motion to dismiss the complaint of defendants NFA Associates, LLC and Old Towne Southampton Homeowners Association, Inc. (“Moving Defendants”). This action arose from the plaintiffs’ attempt to recover a real estate broker’s commission they alleged to have earned in connection… Continue Reading

Insurer’s Denial of Coverage to Subcontractor Not a Breach of Implied Covenant of Good Faith and Fair Dealing

Posted in Breach of Contract, Construction, CPLR 3211, Estoppel, Insurance Coverage, Motion to Dismiss, Suffolk, Whelan, Thomas

In an October 21, 2014 Commercial Division decision by Justice Whelan, the court granted Defendant insurer’s motion to dismiss Plaintiff general contractor’s claims for recovery of consequential damages, costs, and attorneys fees.  Plaintiff commenced an action for damages against its subcontractor and the subcontractor’s insurer, Defendant Travelers.

Defendants’ Failure to Address Release in Opposition to Summary Judgment Cannot Support Motion to Reargue or Renew

Posted in Breach of Fiduciary Duty, Healthcare, Suffolk, Summary Judgment, Whelan, Thomas

In an August 15, 2014 Commercial Division decision by Justice Whelan, the court denied defendants’  motion for leave to reargue or for renewal of plaintiff’s prior motion for partial summary judgment.  Plaintiff alleged that the individual Defendant physicians, former employees of Plaintiff, established a pediatric medical practice that competed with plaintiff’s practice in violation of… Continue Reading

Court Awards Summary Judgment and Consolidates Mortgages in Foreclosure Action: People’s United Bank v Whitford Dev., Inc.

Posted in Declaratory Judgment, Guaranty, Real estate, Suffolk, Summary Judgment, Whelan, Thomas

In a May 13, 2013 decision by Justice Whelan, the court granted the plaintiff’s (“People’s”) motion for summary judgment and declaratory relief.  People’s commenced the action to foreclose two mortgages given by Witford that encumbered land in Riverhead, and which were subject to a broad and unconditional written guaranty that was executed by the individual… Continue Reading

Recording Acts Defeat Defendant’s Claim of Priority in Connection with a Subsequent Consolidated Mortgage

Posted in Default, Real estate, Suffolk, Summary Judgment, Whelan, Thomas

In a March 5, 2013, decision by Justice Whelan, the court granted plaintiff-mortgagee’s motion for summary judgment on its action for foreclosure and sale of a commercial property, as well as a deficiency judgment, against defendant-mortgagor and guarantors.  The subject mortgage was dated from September 2006.  One of the defendants, Suffolk County National Bank (“SCNB”),… Continue Reading

Purported Non-Compliance with Requirements of Administrative Order 548/10 Insufficient to Vacate Judgment of Foreclosure and Sale

Posted in Default, Real estate, Suffolk, Whelan, Thomas

In a February 19, 2013, decision by Justice Whelan, the court denied plaintiff-mortgagee-lender’s motion to vacate a judgment of foreclosure and sale, as well as the order of reference, and to extend the notice of pendency.  Plaintiff moved on the basis of an alleged failure by a prior servicer to comply with the new substantive… Continue Reading

On Motion to Dismiss for Failure to State a Cause of Action, Plaintiff’s Assertion of a Defense to Counterclaim Not Determinative of Legal Insufficiency of Claim: Island Tennis, LP v Varilease Fin., Inc.

Posted in Breach of Contract, CPLR 3211, Documentary Evidence, Failure to State a Claim, Motion to Dismiss, Suffolk, Whelan, Thomas

In a January 29, 2013, decision by Justice Whelan, the court denied plaintiff and counterclaim-defendants’ motion to dismiss defendant’s counterclaims.  Plaintiff-tennis club sued defendant-financing company for breach of contract in connection with an equipment lease and purchase agreement.  Defendant countersued, asserting its own breach of contract claims against both plaintiff and additional counterclaim-defendants who served… Continue Reading

Pending Resolution on Preclusive Effect of Worker’s Compensation Law, Court Grants Plaintiff’s Motion for Partial Summary Judgment for Labor Law Violation

Posted in Construction, Discovery, Suffolk, Summary Judgment, Whelan, Thomas

In a January 8, 2013 decision by Justice Whelan, the court denied the plaintiff’s motion to strike the defendant’s answer, brought pursuant to CPLR § 3126, for the failure to comply with discovery. The court found that the plaintiff failed to (1) provide an affirmation of good faith required under 22 NYCRR § 202.7 and… Continue Reading

Both Preliminary Injunction and Receivership Motions Denied in Dental Practice Purchase Dispute: Huntington Village Dental, PC v. Rathbauer

Posted in Contract Interpretation, Dental, Fraud, Preliminary Injunction, Suffolk, Whelan, Thomas

In a January 18, 2013 decision by Justice Whelan, the Court denied plaintiff’s motion for a preliminary injunction, and denied defendants’ cross-motion for the appointment of a Receiver.  The action arose out of plaintiff’s purchase of a dental practice, as well as a leasehold interest, from defendants.  A little over two years after the sale,… Continue Reading

Rejection of Continuous Representation Doctrine Leads to Dismissal of Time-Barred Claims Against Accountants: Irvin v. Jones

Posted in Breach of Fiduciary Duty, Fiduciary Duty, Fraud, Malpractice, Motion to Dismiss, Statute of Limitations, Suffolk, Summary Judgment, Tolling, Whelan, Thomas

In a December 13, 2012 decision by Justice Whelan, the Court granted the accountant defendants’ motion for partial dismissal of the complaint based upon statute of limitations.  In so doing, the court rejected the application of the continuous representation doctrine to the facts at hand.  The action involved a family limited partnership, formed to manage… Continue Reading

Ex-Wife’s Claim to House Subordinate to Bank’s Mortgage: Accredited Home Lenders, Inc. v Walker

Posted in Real estate, Suffolk, Summary Judgment, Unjust Enrichment, Whelan, Thomas

In a November 30, 2012 decision by Justice Whelan the court determined that two mortgages had priority over a judgment in favor of the homeowner’s ex-wife.  In May 2007 the homeowner obtained a loan from the plaintiff.  The loan proceeds were used, in part, to repay two loans.  The mortgage wasn’t recorded until February 2008. … Continue Reading

Court Tells Shareholders to Vote On and Denies Request to Postpone Vote at Annual Shareholder Meeting: Wenz v Globecomm Sys. Inc.

Posted in Order to Show Cause, Preliminary Injunction, Service of Process, Shareholder Dispute, Suffolk, Whelan, Thomas

In a November 14, 2012 decision by Justice Whelan, the court denied the plaintiffs’ motion to preliminarily enjoin the shareholders of the defendant corporation from voting at their annual general meeting. The plaintiffs argued that they were provided with insufficient information concerning two proposals to be voted on, and sought to postpone the vote to… Continue Reading

Defendant Fails to Establish Prior Attorney-Client Relationship, Disqualification Denied: Three Brothers Electric, Inc. v Oak Creek Partners, LLC

Posted in Breach of Contract, Construction, Fraudulent Inducement, Suffolk, Whelan, Thomas

In a September 14, 2012 decision by Justice Whelan, the court denied defendant’s motion to disqualify plaintiff’s counsel based on prior representation.  Defendant Oak Creek Partners, LLP (“Oak Creek”) argued that plaintiff’s attorneys previously represented Oak Creek in a federal court litigation.  Oak Creek’s managing member also claimed plaintiff’s attorney previously represented him individually and,… Continue Reading

No Duty to Defend Insured’s Contract Indemnitees: Delaney Assoc. LP v. Regan Agency, Inc.

Posted in Construction, Declaratory Judgment, Indemnification, Insurance Coverage, Suffolk, Summary Judgment, Whelan, Thomas

In a September 5, 2012 decision by Justice Whelan, the Court denied cross-motions for summary judgment in a declaratory judgment action brought against insurers to determine whether they were obligated to assume the defense of plaintiff and its indemnitees in a personal injury action.  In February of 2008, the plaintiff entered into a contract with… Continue Reading

Questions of Fact Surrounding Time of Accrual and Partial Payment Preclude Summary Judgment on the Basis of Statute of Limitations: Romanski v Ackerman

Posted in Agriculture, Breach of Contract, CPLR 3212, Statute of Limitations, Suffolk, Summary Judgment, Tolling, Whelan, Thomas

In an August 16, 2012, decision by Justice Whelan, the court denied the parties’ cross-motions for summary judgment in connection with a breach-of-contract action for irrigation services.  Plaintiff provided approximately $50 thousand worth of irrigation services for defendant-vineyard owners based on an oral agreement allegedly made in January 2003.  Defendants allegedly made payments of only… Continue Reading

Court Holds Notice of Pendency is Subordinate to Prior-in-time Mortgage: Olmeda v Correia

Posted in CPLR 3212, Real estate, Suffolk, Summary Judgment, Whelan, Thomas

In an August 1, 2012 decision by Justice Whelan, the court granted in part and denied in part the plaintiffs’ motion for summary judgment and denied the plaintiffs’ motion for the appointment of a referee to compute. The plaintiffs brought the action to foreclose a purchase money mortgage on a commercial property after the defendants… Continue Reading