Agreement to Pay Legal Fees and Costs not an Agreement to Advance Costs
Commercial Case Notes / Indemnification, Advancement and Attorneys' Fees

Agreement to Pay Legal Fees and Costs not an Agreement to Advance Costs

On September 15, 2022, Justice Chan of the New York County Commercial Division issued a decision in Ja Kao v. Onyx Renewable Partners L.P., 2022 NY Slip Op. 33117(U), holding that an agreement to pay a party’s legal fees and costs was not an agreement to advance those fees and costs because there was no language showing an intention to advance rather than just indemnify . . . Continue reading Agreement to Pay Legal Fees and Costs not an Agreement to Advance Costs

Except in Providing a Defense, an Insurance Company Does Not Owe a Fiduciary Duty to its Insureds
Commercial Case Notes / Fiduciaries

Except in Providing a Defense, an Insurance Company Does Not Owe a Fiduciary Duty to its Insureds

On September 21, 2022, the Second Department issued a decision in Neurological Surgery, P.C. v. MLMIC Ins. Co., 2022 NY Slip Op. 05211, holding that except in providing a defense, an insurance company does not owe a fiduciary duty to its insureds . . . Continue reading Except in Providing a Defense, an Insurance Company Does Not Owe a Fiduciary Duty to its Insureds

Loan Servicer Affidavit Failed to Establish Grounds for Summary Judgment of Foreclosure
Commercial Case Notes / Summary Judgment

Loan Servicer Affidavit Failed to Establish Grounds for Summary Judgment of Foreclosure

On September 21, 2022, the Second Department issued a decision in U.S. Bank N.A. v. Zakarin, 2022 NY Slip Op. 05229, holding that a loan servicer’s affidavit was insufficient grounds for summary judgment because it did not identify and attach the business records that formed the grounds for her statement that the defendant had failed to pay . . . Continue reading Loan Servicer Affidavit Failed to Establish Grounds for Summary Judgment of Foreclosure

Court Dismisses Litany of Defenses to Contract Performance Based on the Pandemic
Commercial Case Notes / Contracts

Court Dismisses Litany of Defenses to Contract Performance Based on the Pandemic

On September 7, 2022, Justice Ostrager of the New York County Commercial Division issued a decision in Series PC of HCI-Cerberus PCNY Owner LP v. Diamond Resorts Intl. Mktg., Inc., 2022 NY Slip Op. 32998(U), dismissing a litany of defenses to contract performance based on the pandemic . . . Continue reading Court Dismisses Litany of Defenses to Contract Performance Based on the Pandemic

Defendants Waived Defense of Improper Service of Process by Failing to Plead it with Particularity
Commercial Case Notes / Motion to Dismiss / Service of Process

Defendants Waived Defense of Improper Service of Process by Failing to Plead it with Particularity

On September 7, 2022, Justice Cohen of the New York County Commercial Division issued a decision in Continuum Energy Tech., LLC v. Iron Oak, Inc. (USA), 2022 NY Slip Op. 33000(U), holding that defendants waive the defense of improper service by failing to plead it with particularity . . . Continue reading Defendants Waived Defense of Improper Service of Process by Failing to Plead it with Particularity

Party Barred from Arguing on Summary Judgment that the Version of a Contract it had Used Throughout the Litigation Was Not the Correct One
Commercial Case Notes / Evidence / Summary Judgment

Party Barred from Arguing on Summary Judgment that the Version of a Contract it had Used Throughout the Litigation Was Not the Correct One

On September 9, 2022, Justice Chan of the New York County Commercial Division issued a decision in Victor RPM First, LLC v. Charles Condominiums, LLC, 2022 NY Slip Op. 33053(U), barring a party from arguing on summary judgment that the version of a contract it had used throughout the litigation was not the correct one . . . Continue reading Party Barred from Arguing on Summary Judgment that the Version of a Contract it had Used Throughout the Litigation Was Not the Correct One

Party Whose Counsel Had Been Suspended From Practice Cannot be Defaulted if Notice to Appoint New Counsel Not Served
Commercial Case Notes / Default Judgment / Law Firms and Professional Ethics

Party Whose Counsel Had Been Suspended From Practice Cannot be Defaulted if Notice to Appoint New Counsel Not Served

On September 14, 2022, the Second Department issued a decision in JPMorgan Chase Bank, N.A. v. Simonsen, 2022 NY Slip Op. 05156, holding that a defendant whose lawyer had been suspended from practice could not be defaulted unless served with a notice to appoint new counsel had been served . . . Continue reading Party Whose Counsel Had Been Suspended From Practice Cannot be Defaulted if Notice to Appoint New Counsel Not Served

General Assertions of Law Office Failure Insufficient to Justify Vacating Default Judgment
Commercial Case Notes / Default Judgment

General Assertions of Law Office Failure Insufficient to Justify Vacating Default Judgment

On September 14, 2022, the Second Department issued a decision in Kamil El-Deiry & Assoc. CPA, PLLC v. Excellent Home Care Servs., LLC, 2022 NY Slip Op. 05157, holding that general assertions of law office failure were insufficient to justify vacating a default judgment . . . Continue reading General Assertions of Law Office Failure Insufficient to Justify Vacating Default Judgment