All Lundin PLLC Blogs

New York County Courthouse (Justices Borrok, Chan, Sohen, Crane, Masley, Ostrager, Reed and Schecter)

Commercial Case Notes / Service of Process

Even if a Party’s Counsel in Another Action Agrees to Accept Service, Service is not Effective Without Evidence that the Defendant Gave His Counsel Permission to Accept Service

On September 15, 2023, Justice Cohen of the New York County Commercial Division issued a decision in Credit Europe Bank (Dubai) Ltd. v. Shetty, 2023 NY Slip Op. 33204(U), holding that even if a party’s counsel in another action agrees to accept service, service is not effective without evidence that the defendant gave his counsel permission to accept service . . . Continue reading Even if a Party’s Counsel in Another Action Agrees to Accept Service, Service is not Effective Without Evidence that the Defendant Gave His Counsel Permission to Accept Service

Commercial Case Notes / Labor/Employment

Defendant Must Repay Salary under Faithless Servant Doctrine

On September 14, 2023, Justice Crane of the New York County Commercial Division issued a decision in Columbia Tech. Corp. v. Yoo, 2023 NY Slip Op. 33205(U), holding that under the faithless servant doctrine, the defendant had to repay the salary he had been paid, explaining: Continue reading Defendant Must Repay Salary under Faithless Servant Doctrine

Commercial Case Notes / Contracts / Damages

Rescission and Rescissory Damages Unavailable When Defendant is Not Contractual Counterparty

On September 14, 2023, Justice Schecter of the New York County Commercial Division issued a decision in Han v. Kwak, 2023 NY Slip Op. 33207(U), holding that rescission and rescissory damages are unavailable against a defendant who is not a party to the transaction that he fraudulently induced.” Continue reading Rescission and Rescissory Damages Unavailable When Defendant is Not Contractual Counterparty

Commercial Case Notes / Veil Piercing/Alter Ego

Defendant Liable for its Predecessor’s Contractual Obligations

On September 14, 2023, Justice Chan of the New York County Commercial Division issued a decision in Needham & Co., LLC v. UpHealth Holdings, Inc., 2023 NY Slip Op. 33210(U), holding that a defendant was liable for its predecessor’s contractual obligations . . . Continue reading Defendant Liable for its Predecessor’s Contractual Obligations

ABS Update / Claims Against Trustees

Where Servicer and Originator Were the Same, Originator’s Failure to Cure Defective Loans Constituted Servicer Failure to Perform Event of Default

On September 21, 2023, Judge Engelmayer of the S.D.N.Y, issued a decision in Ambac Assurance Corporation v. U.S. Bank, 17 Civ. 2614 (PAE) (KHP), holding that where the servicer and originator were the same, the originator’s failure to cure defective loans was a servicer failure to perform event of default. Continue reading Where Servicer and Originator Were the Same, Originator’s Failure to Cure Defective Loans Constituted Servicer Failure to Perform Event of Default

Commercial Case Notes / Fraud/Misrepresentation

No Oral Representations Clause Bars Fraudulent Inducement Claim

On September 18, 2023, Justice Masley of the New York County Commercial Division issued a decision in Schupak v. Arozamena, 2023 NY Slip Op. 33235(U), holding that a no oral representations clause barred a fraudulent inducement claim . . . Continue reading No Oral Representations Clause Bars Fraudulent Inducement Claim

ABS Update / Put-Back Actions

Court Dismisses Claim Against Servicer for Failing to Give Notice of Representation and Warranty Breaches Fails Because Originator Would Have Ignored Any Demand Made on It

On September 19, 2023, Justice Crane of the New York County Commercial Division issued a decision in HSBC Bank USA, N.A. v. Nomura Credit & Capital, Inc., 2023 NY Slip Op. 33252(U), dismissing a claim against Ocwen for failing to give Nomura notice of representation and warranty breaches because Normura would have refused to cure any breaches of which it was given notice . . . Continue reading Court Dismisses Claim Against Servicer for Failing to Give Notice of Representation and Warranty Breaches Fails Because Originator Would Have Ignored Any Demand Made on It

Kings County Courthouse (Justices Boddie, Knipel and Ruchelsman)

Choice of Forum/Forum Non Conveniens / Commercial Case Notes

Non-Mutual Forum Selection Clause Did Not Create Jurisdiction over Defendant in New York

On September 12, 2023, Justice Ruchelsman of the Kings County Commercial Division issued a decision in Mancini Earth & Pipe LLC v. Seamless Capital Group, LLC, 2023 NY Slip Op. 33250(U), holding that a non-mutual forum selection clause did not create jurisdiction over a defendant in New York . . . Continue reading Non-Mutual Forum Selection Clause Did Not Create Jurisdiction over Defendant in New York

Commercial Case Notes / Usury

Agreements Found to be Usurious Loans, Not Merchant Cash Advance Agreements

On September 15, 2023, Justice Borrok of the New York County Commercial Division issued a decision in People v. Richmond Capital Group LLC, 2023 NY Slip Op. 50975(U), holding that agreements were usurious loans, not merchant cash advance agreements . . . Continue reading Agreements Found to be Usurious Loans, Not Merchant Cash Advance Agreements

Appellate Division First Department Courthouse

Commercial Case Notes / Veil Piercing/Alter Ego

Claim Based on Successor Liability Fails Without Evidence That Defendant Purchased Assets

On September 21, 2023, the First Department issued a decision in 47 E. 34th St. (NY) L.P. v. BridgeStreet Worldwide, Inc., 2023 NY Slip Op. 04702, holding that a claim based on successor liability failed for lack of evidence that the defendant purchased the assets of the predecessor company . . . Continue reading Claim Based on Successor Liability Fails Without Evidence That Defendant Purchased Assets

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