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

Category Archives: Justice Whelan, Thomas

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

Posted in Declaratory Judgment, Deficiency Judgment, Industry: real estate, Justice Whelan, Thomas, Mortgage Foreclosure, Suffolk

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, Foreclosure, Industry: real estate, Justice Whelan, Thomas, Mortgages, Suffolk, Summary Judgment

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 Administrative Order 548/10, CPLR 3408, CPLR 5015, Default, Foreclosure, Industry: real estate, Justice Whelan, Thomas, Mortgages, Motion to Vacate, Suffolk

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, General Obligations Law 5-901, Justice Whelan, Thomas, Motion to Dismiss, Suffolk

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 Discovery, Industry: construction, Justice Whelan, Thomas, Labor Law, Motion to Strike, Suffolk, Summary Judgment

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, Industry: dental, Justice Whelan, Thomas, Preliminary Injunction, Receivership, Right Of Receivership, Suffolk

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 Accounting, Continuous Representation, Fiduciary Duty, Justice Whelan, Thomas, Motion to Dismiss, Statute of Limitations, Suffolk, Summary Judgment, Tolling

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 Industry: real estate, Justice Whelan, Thomas, Mortgage Foreclosure, Mortgages, Subrogation, Suffolk, Summary Judgment

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 Justice Whelan, Thomas, Preliminary Injunction, Service of Process, Shareholder Dispute, Suffolk

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 Attorney Disqualification, Attorney-Client Privilege, Breach of Contract, Fraudulent Inducement, Industry: construction, Justice Whelan, Thomas, Request for Proposals, Suffolk

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 Declaratory Judgment, Indemnification, Industry: construction, Insurance Coverage, Justice Whelan, Thomas, Suffolk, Summary Judgment

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 Breach of Contract, CPLR 3212, Goods Sold and Delivered, Industry: agriculture, Justice Whelan, Thomas, Statute of Limitations, Suffolk, Summary Judgment, Tolling

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, CPLR 3215, Industry: real estate, Justice Whelan, Thomas, Notice Of Pendency, Purchase Money Order, Special Referee, Suffolk, Summary Judgment

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

Court Grants Preliminary Injunction in Pool Servicing Companies’ Purchase Agreement Dispute: Casual Water East, LLC v Casual Water Ltd.

Posted in Breach of Contract, CPLR 2512, Industry: hospitality, Justice Whelan, Thomas, Non-compete, Non-solicitation, Suffolk, Undertaking

In a June 11, 2012 decision by Justice Whelan, the court granted the plaintiff’s motion for a preliminary injunction to the extent that it preliminarily enjoined and restrained the defendants from competing with the plaintiff, or aiding or assisting the plaintiff’s competitors, in the pool cleaning and servicing business within certain geographical areas designated by… Continue Reading

Church Loses Bid to Stop Foreclosure: Carver Federal Savings Bank v. The Redeemed Christian Church of God, International Chapel, HHH Parish, Long Island, New York, Inc. et al.

Posted in Equitable Estoppel, Estoppel, Foreclosure, Industry: financial services, Industry: religious, Justice Whelan, Thomas, Oral Modification, Statute of Frauds, Suffolk, Summary Judgment, Unclean Hands

In a May 22, 2012 decision by Justice Whelan, the court granted a lender summary judgment in its foreclosure action, including appointing a referee to compute the amounts owed to the plaintiff.  Defendants defaulted under a mortgage.  Due to this default, plaintiff notified defendants it was accelerating the loan and all amounts were due and… Continue Reading

Defendant’s Summary Judgment Motion to Dismiss Breach of Contract Claim Denied Based on its own Conflicting Evidence of Delay: Giumenta Corp. v Desktop Solutions Software, Inc.

Posted in Breach of Contract, Industry: technology, Intellectual Property, Justice Whelan, Thomas, Motion to Dismiss, Motion to Vacate, Preemption, Suffolk, Summary Judgment, Unjust Enrichment

In an April 9, 2012 decision by Justice Whelan, the court granted in part and denied in part, the defendant’s motion for summary judgment dismissing the complaint that alleged that the defendant failed to develop and host a website for the plaintiff’s business despite being paid thousands of dollars for that work. The complaint alleged… Continue Reading

Court Finds Bank’s Seizure of Funds as Set-Off Invalid and Orders Payment Over to Petitioner under CPLR 6214: Southampton Brick & Tile, LLC v The Suffolk County National Bank

Posted in CPLR 6214, Industry: banking, Justice Whelan, Thomas, Levy Upon Property, Set-Off, Special Proceeding, Suffolk

In a December 29, 2011, decision by Justice Whelan, the court granted petitioner’s motion in connection with a special proceeding to compel payment of certain funds held on deposit with respondent under CPLR 6214.  Petitioner’s motion related to a prior order from the court restraining the funds from removal, which was issued in connection with… Continue Reading

Defenseless Deli Leads to Judgment of Foreclosure and Appointment of Referee to Compute: Dunhill Asset Servs. III LLC v. 175 Dixon Ave. Realty Inc.

Posted in Guaranty, Industry: banking, Justice Whelan, Thomas, Mortgages, Receivership, Referee, Suffolk

In a February 24, 2012 decision by Justice Whelan, the court was faced with a motion by the lender for based upon defendants’ alleged default on a Note and Mortgage in connection with a deli operated on commercial property located in Amityville, New York. Plaintiff moved for summary judgment on the Note and to have a… Continue Reading

Subcontractor Proceeds with Contract Claim Against Property Owner Despite Lack of Privity: Schwing Elec. Supply Corp. v Hunter Roberts Constr. Group LLC

Posted in Breach of Contract, Contractor, Fraud, Industry: construction, Justice Whelan, Thomas, Lien Law 3, Motion to Dismiss, Privity, Sub-Contractor, Suffolk, Unjust Enrichment

In a December 28, 2011 decision by Justice Whelan, the court denied the defendant’s motion to dismiss the complaint and permitted a subcontractor to proceed with its breach of contract and unjust enrichment claims against the property owner, as well as the claim for fraudulent inducement against the individual defendants who the plaintiff claimed induced… Continue Reading

Cross Motion to Dismiss Dissolution Petition Cannot Be Based on Disputed Facts: Matter of Langella v Front Door Assoc. Inc.

Posted in BCL 1104-a, Dissolution, Fraudulent Inducement, Justice Whelan, Thomas, Motion to Dismiss, Request for Proposals, Special Proceeding, Suffolk

In a January 13, 2012 decision by Justice Whelan, the court denied a motion to dismiss a dissolution proceeding brought under Business Corporation Law § 1104-a to dissolve two different businesses. Respondents moved to dismiss both proceedings, arguing that Petitioner did not own the requisite number of shares (20% of each entity) necessary to obtain dissolution. Respondents… Continue Reading

That’s No Excuse! Advice of Loan Servicing Agent Insufficient Basis for Leave to File Late Answer: Bank of NY v. Jayaswal

Posted in CPLR 3012, Default, Industry: banking, Industry: real estate, Justice Whelan, Thomas, Justifiable Reliance, Mortgage Foreclosure, Motion for Leave to File a Late Answer, RPAPL 1320, Suffolk

In an October 17, 2011 decision by Justice Whelan, the court denied the defendants-mortgagors’ motion for leave to file a late answer pursuant to CPLR 3012(d). Plaintiff commenced the mortgage foreclosure action in September 2009, and after multiple settlement conferences were unsuccessful, defendants failed to submit an answer or otherwise timely appear. The court denied… Continue Reading

Failure to Serve Notice of Default Not a Proper Ground for Dismissal under CPLR 3211: Old Rock Assoc. v BDG Yapshank, LLC

Posted in Commercial Real Property, Condition Precedent, CPLR 3211, CPLR 3215, Deficiency Judgment, Documentary Evidence, Failure to State a Claim, Industry: real estate, Justice Whelan, Thomas, Mortgages, Suffolk

In a September 16, 2011, decision by Justice Whelan, the court denied in part and granted in part defendant’s motion to dismiss plaintiff’s mortgage-foreclosure action and demand for a deficiency judgment in connection with the purchase of certain commercial real property. Defendant argued that plaintiff failed to comply with the default provisions of the mortgage, which… Continue Reading

Plaintiff Fails to Maintain Claims for Fraud or Recision of Contract: Hampton Transp. Ventures, Inc. v JD Transp., LLC

Posted in Breach of Contract, Breach of Fiduciary Duty, Fraud, Industry: Transportation, Joint Venture Dispute, Justice Whelan, Thomas, Limited Liability Companies, Motion to Dismiss, Suffolk, Unjust Enrichment

In an August 8, 2011 decision by Justice Whelan, the court dismissed the majority of the plaintiff’s claims against corporate and individual parties, which arose out of two agreements in which the plaintiff purchased certain assets and liabilities of a bus transportation business and formed a separate joint venture limited liability company for the purpose… Continue Reading

Right of Removal of Excess Excavation Material Not Bargained for in Land Deal: Circle Assoc., LP v Starlight Props., Inc.

Posted in Breach of Contract, Contract Damages, Contract Interpretation, CPLR 3212, Fraud, Fraud In The Inducement, Industry: construction, Industry: real estate, Justice Whelan, Thomas, Merger, Misrepresentation, Suffolk, Summary Judgment

In a July 25, 2011, decision by Justice Whelan, the court granted defendant-seller’s motion for summary judgment dismissing plaintiff-buyer’s fraud action and finding for defendant on its counterclaim for breach of contract. Defendant, owner of a large tract of subdivided real estate, sold plaintiff a 20-acre lot on which plaintiff planned to construct a concrete plant. In… Continue Reading