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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: Declaratory Judgment

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Law Firm’s Failure to File Notice of Appeal in Coverage Action Not Malpractice Where Insured’s Underlying Losses Were Not Covered under Policy

Posted in Declaratory Judgment, Healthcare, Insurance, Legal, Malpractice, Oing, Jeffrey K., Unjust Enrichment

In a decision dated December 30, 2015, the Appellate Division, First Department affirmed an order from the New York County Commercial Division granting defendant-law firm’s motion to dismiss plaintiff-health care provider’s malpractice action.

Admissibility of Original Pleading as an Informal Judicial Admission Precludes Finding of Prejudice for Purposes of Denying Motion for Leave to Amend

Posted in Declaratory Judgment, Demarest, Carolyn E., Healthcare, Kings, Motion to Amend, Motion to Dismiss, Shareholder Dispute

In a July 21, 2015, Kings County Commercial Division decision by Justice Demarest, the court granted plaintiff’s cross-motion to amend his complaint under CPLR 3025 and to disqualify defendant’s counsel under Rule 1.9 of the Rules of Professional Conduct. 

Buyer Limited to Restricted Remedies Clause in Purchase & Sale Agreement; Specific Performance Not Meant to Provide Carte Blanche to Buyers to Evade Such Restrictions through Delay Tactics

Posted in Breach of Contract, Declaratory Judgment, New York, Real estate, Sherwood, O. Peter, Summary Judgment

In a May 26, 2015, New York County Commercial Division decision by Justice Sherwood, the court granted plaintiff-buyer’s motion for summary judgment dismissing defendant-seller’s counterclaim for specific performance of a real estate contract and denied defendant’s cross-motion for summary judgment on its counterclaim for return of its deposit.

Patently Denied: Court Denied Inventor’s Motion for Partial Summary Judgment in Action Regarding Assignment of Patents

Posted in Declaratory Judgment, Emerson, Elizabeth, Engineering, Summary Judgment

In a February 3, 2015, Commercial Division decision by Justice Emerson, the court denied plaintiffs’ motion for partial summary judgment.  This action was brought by plaintiff Vito Agosta (“Agosta”), an inventor who developed a method of burning liquid ammonia in diesel engines.  The action arose from an assignment of a patent application for Agosta’s invention… Continue Reading

Court Discerns the “Economic Reality” of Loan Distribution, Looks at “Substance” over “Form” on Summary Judgment

Posted in Banking, Breach of Contract, Declaratory Judgment, Discovery, New York, Sherwood, O. Peter, Summary Judgment

In an August 20, 2014 Commercial Division decision by Justice Sherwood, the court granted defendant and counterclaim plaintiff Credit Suisse’s motion for summary judgment, dismissing the claim against it.  Credit Suisse sold plaintiff Sumitomo Mitsui Banking Corporation (“Sumitomo”) an interest in a syndicated bridge loan in 2006.  It was restructured in May 2009.  At the… Continue Reading

Reading Agreement as a Whole – not Particular Words in Isolation –Leads to Dismissal of Indemnification Action

Posted in Albany, CPLR 3211, Declaratory Judgment, Indemnification, Motion to Dismiss, Platkin, Richard, Real estate, Uncategorized

In a May 8, 2014 Commercial Division decision by Justice Platkin, the court granted the defendant’s (“JMR’s”) motion to dismiss. The plaintiffs, related entities that leased a gasoline station in Schenectady from JMR, brought the action seeking a declaration as to JMR’s obligation to defend and indemnify the plaintiffs pursuant to a lease termination agreement… Continue Reading

Partners Bound by Ownership Representations in Partnership Tax Returns

Posted in CPLR 3211, Declaratory Judgment, Demarest, Carolyn E., Kings, Motion to Dismiss, Real estate

In a June 9, 2014, Kings County Commercial Division decision by Justice Demarest, the court denied defendant’s motion to dismiss plaintiff’s declaratory judgment action.  Plaintiff, a former 50% owner in a real estate partnership, commenced the action against his co-partner for selling the partnership’s properties without his consent.  Defendant moved to dismiss, arguing that plaintiff… Continue Reading

Administrative Orders Not “Final Adjudications” for Purposes of Dishonest Acts Exclusion in Bear Stearns Professional Liability Insurance Policy

Posted in Class Action, Declaratory Judgment, Fraud, Insurance, Insurance Coverage, New York, Ramos, Charles E., Summary Judgment

In a February 28, 2014 Commercial Division decision by Justice Ramos, the court granted the plaintiffs’ motion for partial summary judgment and denied the defendants’ motion for partial summary judgment.  The plaintiffs commenced this insurance coverage action seeking a declaratory judgment that its insurers, the defendants, were required to indemnify them against certain claims. The… Continue Reading

Court Dismisses Five of Six Claims in Stepmom vs. Stepchildren Suit Related to Control of Kensington Publishing Corp.

Posted in Bransten, Eileen, Breach of Contract, Breach of Fiduciary Duty, CPLR 3211, Declaratory Judgment, Demand Futility Doctrine, Motion to Dismiss, New York, Publishing

In a January 6, 2013 decision by Justice Bransten, the court granted the defendants’ motion to dismiss the complaint as to five of its six causes of action. This case involved a dispute as to the control of the defendant corporation, Kensington Publishing (“Kensington”), the largest independent-publisher of mass-market books in the United States. At… Continue Reading

Borrower Cannot Buy Debt From One Lender and Then Change Terms Affecting Co-Lenders: BDCM Opportunity Dung II, LP et al v Yacaipa American Alliance Fund I, LP et al

Posted in Breach of Contract, Declaratory Judgment, Financial services, New York, Ramos, Charles E., Summary Judgment

In a March 8, 2013 decision by Justice Ramos, the Court granted summary judgment declaring that a borrower could not change the terms of its obligations to it lenders because its majority shareholder purchased a portion of the debt.  The litigation arose from a bankruptcy reorganization that led to multiple tiers of financing from different… Continue Reading

Court Approves Settlement Involving Issuance of Shares of Common Stock Exempt from Registration: Brio Capital, L.P. v Sanswire Corp.

Posted in Breach of Contract, Declaratory Judgment, Financial services, Friedman, JSC, Marcy S., New York, Summary Judgment

In a May 9, 2013 decision by Justice Friedman, the court granted the parties’ joint motion for approval of the terms of a settlement of the action, “as fair”  pursuant to section 3(a)(10) of the Securities Act of 1933 (“Securities Act”). The case involved claims for breach of contract and breach of fiduciary duties arising… 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

Court Dismisses Claim for Abuse of Process, Allows Claim for Legal Malpractice in Action arising from Mortgage Foreclosure: Ferreira v Citiwide Real Estate & Mgt. Co.

Posted in Attorneys' Fees, Declaratory Judgment, Fraud, Kitzes, Orin R., Legal, Legal Malpractice, Malpractice, Queens, Real estate, Summary Judgment

In a May 8, 2013 decision by Justice Kitzes, the court granted the defendant Deutsche Bank’s motion for summary judgment dismissing the complaint, denied defendant Solda’s motion for summary judgment, and cancelled a notice of pendency against the East Elmhurst property (the “Property”) at issue, which was owned by Ferria. Deutsche Bank was previously awarded… Continue Reading

Motion for Summary Judgment Denied in Part and Granted in Part in Sons’ Suit Over the Management of their Deceased Father’s Real Estate Empire: Serota v Scimone

Posted in Aiding and Abetting, Arbitration, Breach of Fiduciary Duty, CPLR 3211, Declaratory Judgment, Motion to Dismiss, New York, Ramos, Charles E., Real estate, Statute of Limitations, Summary Judgment, Unjust Enrichment

In a January 10, 2013 decision by Justice Ramos, the court denied in part and granted in part the defendant Scimone’s motion to dismiss. The individual plaintiffs challenged the validity of a management agreement (“Agreement”) that related to various properties owned by their deceased father, Nathan Serota (“Serota”), entered into by Scimone and Serota. The… Continue Reading

Reinsurance Company’s Claims Liability Survives where not Explicitly Excluded by the Terms of Stock Purchase Agreement: Randall & Quilter Investment v Ace INA Int’l

Posted in CPLR 3211, Declaratory Judgment, Failure to Plead with Particularity, Fraud, Impossibility, Indemnification, Kornreich, Shirley Werner, Motion to Dismiss, Mutual Mistake, New York, Reformation

In a January 22, 2013 decision by Justice Kornreich, the court granted the defendants’ (“ACE”) motion to dismiss. The plaintiffs (“R&Q” and “R&Q Re”), related reinsurance companies, sought declaratory relief regarding obligations under, or, in the alternative, to reform a Stock Purchase Agreement (the “SPA”). R&Q entered into the SPA with the defendant Century and… Continue Reading

Motion to Dismiss Aggrieved LLC Partner’s Claims for Fraud and Breach of Fiduciary Duty Denied: C&B Enters. USA v Koegel

Posted in Breach of Fiduciary Duty, CPLR 3104, CPLR 3211, Declaratory Judgment, Demarest, Carolyn E., Derivative Actions, Fraud, Kings, Limited Liability Companies, Motion to Dismiss, Real estate, Statute of Limitations

In a January 14, 2013 decision by Justice Demarest, the court denied in part and granted in part the third-party defendant Rosenberg’s motion to dismiss each of the causes of action asserted against him by the defendant/third-party plaintiff Koegel, who sued individually and derivatively on behalf of the plaintiff C&B. Koegel and Rosenberg formed C&B,… Continue Reading

“Best Efforts” Means Best Efforts, and Court refused to Void Contract for Lack of Measuring Criteria: Maestro West Chelsea SPE v Pradera Realty Inc.

Posted in Bransten, Eileen, Breach of Contract, Construction, Declaratory Judgment, Good faith and fair dealing, Motion to Dismiss, New York, Preliminary Injunction, Real estate, Specific Performance

In an October 9, 2012 decision by Justice Bransten, the court denied the defendant’s motion to dismiss a breach of contract claim. The court rejected the defendant’s arguments that the contract was void for vagueness and violated the rule against perpetuities. First, the defendant argued that its contract with the plaintiff, pursuant to which it had agreed to sell… Continue Reading

Partner Forced Out of Joint Venture to open Manhattan Restaurant Can Maintain Action Based on Theory of Quasi-Contract: Don v Broger

Posted in Breach of Contract, Breach of Fiduciary Duty, CPLR 3211, Declaratory Judgment, Food & Beverage/Restaurant, Fraud, Kings, Motion to Dismiss, Schmidt, David I.

In an October 10, 2012 decision by Justice Schmidt, the court denied the defendants’ motion to dismiss except with respect to the plaintiff’s cause of action for a declaratory judgment. The dispute arose out of an oral agreement for a joint venture between the parties, which was entered in order to form a corporation that… Continue Reading

Unambiguous Residency Requirement Results in No Duty to Defend: Tower Ins. Co. of N.Y. v Dademadi

Posted in Declaratory Judgment, Friedman, JSC, Marcy S., Insurance, Insurance Coverage, New York, Summary Judgment

In a September 13, 2012 decision by Justice Friedman, the court granted the plaintiff insurance company’s motion for summary judgment seeking a declaratory judgment that it had no duty to defend and indemnify defendant Dademadi in a personal injury action against her by defendant Stewart who claims he was injured when he fell on a… Continue Reading