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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: Guaranty

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Court Stays Action, Rather Than Dismiss, Despite Simultaneous Similar Action Between Same Parties in NJ, Where Full Relief Might Not Be Afforded in NJ Action

Posted in Banking, Demarest, Carolyn E., Guaranty, Kings, Motion to Dismiss, Personal Jurisdiction, Real estate

In a January 6, 2016 Commercial Division decision by Justice Demarest, the court granted the defendants’ motion to dismiss pursuant to CPLR 3211(a)(4) in part, staying the action until the conclusion of a separate action brought in New Jersey.

Email Notifying Landlord of Address Change Sent by Tenant’s Related Entity Insufficient to Alter “Last Known Address” Requirement in Lease’s Notice Provision

Posted in Breach of Contract, Guaranty, Indemnification, Order to Show Cause, Preliminary Injunction, Queens, Real estate, Ritholtz, Martin E., Unjust Enrichment

In a June 1, 2015, Queens County Commercial Division decision by Justice Ritholtz, the court denied defendant-commercial tenant’s motion for a Yellowstone injunction as untimely.

Note to Guarantor Defending against an Alleged Failure to Pay upon Default: Don’t Question the Authenticity of Your Signature and Also Admit You Signed the Guaranty in the Same Affirmation in Opposition

Posted in Arbitration, Attorneys' Fees, Breach of Contract, Demarest, Carolyn E., Discovery, Guaranty, Kings, Limited Liability Companies, Summary Judgment

In an April 15, 2015, Commercial Division decision by Justice Demarest, the court granted plaintiff-lender’s motion for summary judgment based on defendant-guarantor’s failure to repay a loan upon the borrower’s default under a related promissory note.

Plaintiff RMBS Insurer Cannot Establish it Relied on Manipulated Due Diligence Report, Defeated on Summary Judgment

Posted in Fraud, Guaranty, Insurance, Scheinkman, Alan D., Summary Judgment, Westchester

In an May 6, 2014 Commercial Division decision by Justice Scheinkman, the Court granted the defendant underwriter’s motion for summary judgment and dismissed plaintiff insurer’s complaint, without prejudice to a motion by the insurer to interpose an amended complaint. MBIA alleged one cause of action: that JP Morgan (formerly Bear Stearns) fraudulently induced MBIA to… Continue Reading

Fact Issue Regarding Whether Financial-Guaranty Insurer Had Reasonable Opportunity to Review Loan Files Relative to Mortgage-Backed Securities Saves Fraud Claim from Dismissal: Ambac Assur. Corp. v EMC Mtge. LLC

Posted in Banking, Breach of Contract, Conversion, CPLR 3211, Fraud, Fraudulent Conveyance, Guaranty, Motion to Dismiss, New York, Ramos, Charles E.

In a June 13, 2013, decision by Justice Ramos, the court granted in part and denied in part defendant’s motion to dismiss plaintiff’s complaint.  Plaintiff, a financial-guaranty insurer, brought claims for breach of contract and fraudulent inducement against defendant, an issuer of certain residential mortgage-backed securities, alleging that it has paid more than $300 million… 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 Grants Summary Judgment in Lieu of Complaint as to Liability under Personal Guaranty Despite Being Part of a Larger Transaction: SG Equip. Fin. USA Corp. v Moore

Posted in CPLR 3213, Financial services, Guaranty, New York, Promissory Note, Sherwood, O. Peter, Summary Judgment, Summary Judgment in lieu of Complaint

In a March 27, 2013, decision by Justice Sherwood, the court granted plaintiff’s motion for summary judgment in lieu of complaint.  Plaintiff extended approximately $800,000 to defendant’s freight-service company for the purchase of commercial equipment under a master loan and security agreement and two related promissory notes.  Defendant executed a guaranty in connection with the… Continue Reading

Mortgage Backed Security Insurer’s Relief Limited to Compelling Repurchase of Loans: Assured Guar. Corp. v EMC Mtge, LLC et al.

Posted in Banking, Breach of Contract, Financial services, Guaranty, Indemnification, Insurance, New York, Ramos, Charles E., Tortious Interference With Contract

In an April 4, 2013 decision by Justice Ramos, the Court dismissed plaintiff’s breach of contract claim to the extent that it sought damages beyond those allowed under its contract but allowed its tortious interference with a contract claim to move forward.  The litigation arose from the mortgage backed security meltdown.  Plaintiff, Assured, provided financial… Continue Reading

Lehman Brothers’ Implied Covenant of Good Faith and Fair Dealing Claim Against Assured Guaranty Based On Payment Upon Termination Allowed to Proceed: Lehman Bros. Int’l v AG Financial Products, Inc.

Posted in Breach of Contract, Financial services, Friedman, JSC, Marcy S., Good faith and fair dealing, Guaranty, New York

In a March 12, 2013 decision by Justice Friedman the court dismissed one claim for breach of implied covenant of good faith and fair dealing, but allowed a second claim to continue, stemming from Lehman Brothers’ meltdown.  AG Financial Products, Inc. (Assured Guaranty) entered into a number of derivative transactions with Lehman Brothers.  Assured Guaranty… Continue Reading

Motions for Reargument May Not be Based on New Facts or Different Arguments: Bank of America v A thru Z Motor Veh. Serv.

Posted in Banking, CPLR 2221, Guaranty, Kings, Schmidt, David I.

In a December 31, 2012 decision by Justice Schmidt, the court denied the pro se defendant’s (“Perlstein”) motion for reargument of his prior motion to vacate a default judgment entered against him. Perlstein guaranteed two loans made by the plaintiff, Bank of America (“BofA”), to the defendant A thru Z. When A thru Z defaulted… Continue Reading

Summary Judgment in Lieu of Complaint Granted to Enforce Notes and Guarantees: HCG Mezzanine Dev. Fund, LP v Jreck Holdings, LLC

Posted in CPLR 3213, Estoppel, Franchising, Guaranty, Kornreich, Shirley Werner, New York, Oral Modification, Summary Judgment, Summary Judgment in lieu of Complaint

In an October 26, 2012 decision by Justice Kornreich, the court granted plaintiff’s motion for summary judgment in lieu of complaint pursuant to CPLR 3213 for claims based on a number of notes and guarantees.  Plaintiff made three separate loans to defendants who franchised and operated a chain of sandwich restaurants.  In connection with the… Continue Reading

Staples Are Not Enough: Plaintiffs’ Submissions Are Insufficient Evidence That Allonge Was Affixed to Note: Bottone and Denis v LP Printing Corp. and Peterson

Posted in Advertising, Fraud, Guaranty, Motion to Dismiss, Pines, Emily, Suffolk, Summary Judgment

In an October 17, 2012 decision by Justice Pines, the court, inter alia, denied plaintiffs’ motion for summary judgment on its attempt to collect on a note and a personal guaranty from the sale of their business.  Plaintiffs sought to collect on the note in their individual capacities, alleging that the note was assigned to… Continue Reading

Staples Are Not Enough: Plaintiffs’ Submissions Insufficient Evidence Allonge Was Affixed to Note: Bottone and Denis v LP Printing Corp. and Peterson

Posted in Advertising, Fraud, Guaranty, Motion to Dismiss, Pines, Emily, Suffolk, Summary Judgment

In an October 17, 2012 decision by Justice Pines the court, inter alia, denied plaintiffs’ motion for summary judgment on its attempt to collect on an note and a personal guaranty from the sale of their business.  Plaintiffs sought to collect on the note in their individual capacities, alleging that the note was assigned to… Continue Reading

Summary Judgment Granted on Various Claims Stemming from the Failed Joint Venture Purchase of a Radio Station: Wong v Moy

Posted in Breach of Contract, Entertainment, Fraud, Guaranty, Kapnick, Barbara R., Misrepresentation, New York, Real estate, Summary Judgment

In an October 5th decision by Justice Kapnick, the court granted the defendants’ motion for partial summary judgment, and granted the plaintiff’s motion for summary judgment in part. The case arose from the defendant Moy’s purchase and subsequent management of a radio station through a joint venture, entered pursuant to a Shareholder Agreement, with the… Continue Reading

Breach of Line of Credit Note and Personal Guaranties leads to Granting of Default Judgment and Summary Judgment: Carver Fed. Sav. Bank v Barile Elec. Corp.

Posted in Banking, CPLR 3212, Demarest, Carolyn E., Financial services, Guaranty, Kings, Summary Judgment

In a September 13, 2012 decision by Justice Demarest, the court granted the plaintiff’s (“Carver”) motion for default judgment against the defendant Barile Electric Corporation (“Barile”) and for summary judgment against two of the three individually named defendant-guarantors. The case arose from the alleged default in repayment of a line of credit note signed in… Continue Reading

Federal Copyright Laws May Provide “Safe Harbor” to Internet-Service Providers Facing Common-Law Infringement Claims: UMG Recs., Inc. v Escape Media Group, Inc.

Posted in CPLR 3211, Entertainment, Guaranty, Kapnick, Barbara R., Motion to Dismiss, New York, Tortious Interference with Business Relations

In a July 10, 2012, decision by Justice Kapnick, the court denied in part and granted in part plaintiff’s motion to dismiss certain of defendant’s affirmative defenses and counterclaims.  Plaintiff-record company sued defendant-website owner for copyright infringement in connection with defendant’s alleged dissemination over the Internet of recorded music owned by plaintiff.  Defendant twice amended… Continue Reading

Guaranty’s Lack of a Limit on Initial Guarantor’s Liability Renders it Liable for Unpaid Remainder of Judgment: Medical Arts-Huntington v Meltzer Rosenberg Dev. LLC.

Posted in Construction, CPLR 3211, CPLR 3212, Fraud, Fraudulent Conveyance, Guaranty, Motion to Dismiss, Pines, Emily, Suffolk, Summary Judgment

In a July 5, 2012 decision by Justice Pines, the court denied the moving defendants’ motion to dismiss the complaint, and granted the plaintiff’s (“Medical Arts”) cross motion for partial summary judgment against the defendant Meltzer Rosenberg Development LLC (“MRD”). The motions related to a Survival Agreement and related guaranties. The Survival Agreement was entered… Continue Reading

Defendant Had No Guaranty Obligations Where Guaranteed Party Was Not the Primary Obligor under Related Contract: Merchant Store Inc. v Schloesser

Posted in Banking, Breach of Contract, Financial services, Guaranty, Pines, Emily, Suffolk, Summary Judgment

In a July 17, 2012, decision by Justice Pines, the court denied plaintiff’s motion for summary judgment in an action for breach of guaranty involving customer chargebacks in connection with a credit card processing contract.  The court denied plaintiff’s motion, finding that it failed to carry its burden to establish entitlement as a matter of… Continue Reading

Motion for Leave to Renew/Reargue Dismissed in Foreclosure Action Based on Plaintiff’s Lack of Due Dilligence: East W Bank v 32 Tower LLC

Posted in CPLR 2221, Guaranty, Hinds-Radix, Sylvia O., Kings, Real estate, Summary Judgment

In a May 30, 2012 decision by Justice Hinds-Radix, the court denied the plaintiff’s motion pursuant to CPLR 2221(e) for leave to renew and/or reargue its prior motion for summary judgment. The plaintiff commenced the action to foreclose a mortgage on a commercial property located in Brooklyn, which was executed by the defendant 32 Tower… 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 Banking, Guaranty, Suffolk, Summary Judgment, Whelan, Thomas

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

Motion for Summary Judgment in Lieu of Complaint Granted as to Liability of Guarantor on Loans made for Construction of Manhattan Hotel: Orchard Hotel, LLC v Zhaviam

Posted in CPLR 3213, Default, Demarest, Carolyn E., Guaranty, Hospitality, Kings, Summary Judgment in lieu of Complaint

In a January 31, 2012 decision by Justice Demarest, the court granted the plaintiff-assignee’s motion pursuant to CPLR 3213 for summary judgment in lieu of complaint on the issue of liability only, holding the action otherwise in abeyance, pending the grant of leave by the New York County court in a related foreclosure action. The… Continue Reading

Mexican Bankruptcy Does Not Preclude Collection of Debt From Guarantors: Wilmington Trust, N.A. v. Vitro Automotriz, S.A. DE C.V. et al.

Posted in Declaratory Judgment, Financial services, Fraudulent Inducement, Fried, Bernard J., Guaranty, New York, Summary Judgment

In a December 5, 2011 decision by Justice Fried the court granted plaintiff summary judgment declaring that the defendants cannot avoid their obligations as guarantors for debts owed by a company in bankruptcy. The bankrupt company defaulted on over $1.3 billion in payment obligations under certain notes. It then filed for bankruptcy, first under Mexican bankruptcy law… Continue Reading

Affirmative Defenses are Barred by Guaranty’s Express Waiver Provision: J. Remora Maintenance LLC v Efromovich

Posted in Construction, Fraud, Fraudulent Inducement, Fried, Bernard J., Guaranty, Motion to Dismiss, New York, Summary Judgment

In a January 4, 2012 decision by Justice Fried, the court granted the plaintiff’s motion for summary judgment to enforce a guaranty executed by the defendant in connection with the plaintiff’s sale of its interest in a company to a third party. The court found that because the two express conditions set forth in the… Continue Reading