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October 27, 2023
Court Reaffirms Insurance Policies for Direct Physical Loss or Damage Cannot Apply to COVID-19 Absent Any Physical Damage to the Property
On October 5, 2023, Justice Joel M. Cohen of the New York County Commercial Division issued a decision in Westport Insurance Corporation v. Aubergene Resorts LLC, Index No. 651396/2022, granting the plaintiff insurer’s motion to dismiss the defendants’ counterclaims, crossclaims and defenses in its entirety. The action was based on a COVID-19 related claim on an insurance policy providing coverage for “direct physical loss or damage.” The court dismissed the defendants’ counterclaims, crossclaims and defenses, finding that no coverage applied as a matter of law based on the First Department’s 2022 decision in Consolidated Rest. Operations, Inc. v. Westport Ins. Corp., 205 AD3d 76 [1st Dept 2022] lv to appeal granted in part, dismissed in part, 39 NY3d 943 [2022]. The Court explained: Read More
March 7, 2022
Ambiguous Lease Clause Could Entitle Commercial Tenant to Rent Abatement During COVID Period
On February 24, 2022, the First Department issued a decision in Schulte Roth & Zabel LLP v. Metropolitan 919 3rd Avenue LLC, 2022 N.Y. Slip Op. 01261, holding that a clause in tenant-law firm Schulte Roth & Zabel's commercial lease entitling the tenant to a rent abatement under designated circumstances was ambiguous, and so the landlord's motion to dismiss the tenant's complaint for a rent abatement during the COVID period when most of the tenant's employees were working remotely was properly denied, explaining: Read More
December 13, 2021
New Commercial Division Rule to Permit Court to Order Remote Depositions
On December 7, 2021, Chief Administrative Judge Lawrence J. Marks promulgated new Rule 37 of the Commercial Division Rules, which expressly permits the court to order that depositions be held by electronic means--either "upon the consent of the parties" or "upon a motion showing good cause."
The new rule, which becomes effective December 15, 2021, lays out the factors the court must consider in deciding whether to order remote depositions over a party's objection--though states that the "safety of the parties and the witness" is the paramount consideration. The new rule also attaches a template protocol for video depositions, and states that no party may challenge the validity of the oath or affirmation administered on the grounds that the court reporter is not a notary in the state in which the witness is located or that the court reporter is not physically present with the witness.
New Rule 37 comes on the heels of new Rule 36, which becomes effective today and which permits courts to hold virtual evidentiary hearing and bench trials. But unlike new Rule 36, which states that it "does not address" the issue of when all parties do not consent, new Rule 37 expressly permits the court to order that depositions be held virtually upon a showing of "good cause."
New Rule 37 is as follows: Read More
August 16, 2021
Pandemic No Excuse for Failing to Respond to Subpoena Served Long Before Pandemic Began
On July 8, 2021, the First Department issued a decision in Sang Cheol Woo v. Spackman, 2021 NY Slip … Read More
August 12, 2021
Financial Difficulties Due to COVID-19 Pandemic No Excuse for Failure to Pay Pursuant to Settlement Agreement
On June 9, 2020, Justice Schecter of the New York County Commercial Division issued a decision in Ma… Read More
May 27, 2021
Pandemic Does Not Excuse Commercial Tenant's Obligations Under Lease
On May 19, 2021, Justice Cohen of the New York County Commercial Division issued a decision in Hugo … Read More
March 27, 2021
New York's Foreclosure Ban Did Not Bar Action for Foreclosure, Just Enforcement of the Judgment and Sale of Property
On March 4, 2021, Justice Cohen of the New York County Commercial Division issued a decision in Nati… Read More
March 23, 2021
COVID Eviction Ban Does Not Bar Action for Money Judgment Against Corporate Tenant
On January 13, 2021, Justice Grays of the Queens County Commercial Division issued a decision in Abl… Read More
March 19, 2021
Covid Eviction Ban Did Not Require Dismissal of Commercial Foreclosure Actions
On March 4, 2021, Justice Knipel of the Kings County Commercial Division issued a decision in U.S. B… Read More
March 13, 2021
Court Erred in Issuing Injunction Where Party Seeking the Injunction Could be Made Whole by an Award of Money Damages
On March 4, 2021, the First Department issued a decision in Shelbourne BRF LLC v. SR 677 Bway LLC, 2… Read More
March 1, 2021
Pandemic Not Basis for Refusal to Pay Rent Under Commercial Lease
On January 27, 2021, Justice Borrok of the New York County Commercial Division issued a decision in … Read More
February 26, 2021
Pandemic-Related Foreclosure Stay Did Not Apply to Commercial Foreclosure
On February 9, 2021, Justice Knipel of the Kings County Commercial Division issued a decision in Bri… Read More
January 21, 2021
Commercial Tenant Not Excused from Paying Rent During State-Ordered Pandemic Store Closures
On January 7, 2021, Justice Borrok of the New York County Commercial Division issued a decision in V… Read More
October 21, 2020
COVID-19 Pandemic No Excuse for Failing to Respond to Motion
On September 30, 2020, Justice Friedman of the New York County Commercial Division issued a decision… Read More
June 7, 2020
Governor Cuomo Extends Suspension of NY Statute of Limitations to July 6
On June 6, 2020, Governor Cuomo extended the suspension of the NY statute of limitations to July 6, … Read More
May 8, 2020
Governor Extends Statute of Limitations Tolling to June 6, 2020
On May 7, 2020, Governor Cuomo issued Executive Order 202.28, which, among other things, extended th… Read More
May 4, 2020
New York State Courts Continue Slowly to Reopen
On April 30, 2020, Chief Administrative Judge Marks issued a memorandum to trial court justices and … Read More
April 22, 2020
Scheduling Remote Conferences with Commercial Division Justices
The Commercial and Federal Litigation Section of the New York State Bar Association has compiled inf… Read More
April 14, 2020
Current Financial Crisis Likely Will Lead to Events of Default in RMBS Trusts
Unlike our usual posts, which analyze recent Commercial Division decisions, this post is written to … Read More
April 2, 2020
New York Courts Clarify E-Filing Rules for Essential Matters
The New York State courts have issued guidance and a new form relating to the filing of papers in es… Read More
March 31, 2020
SDNY and EDNY Further Limit Operations in Face of Coronavirus Crisis
The focus of this blog is the Commercial Division of the New York state courts. Still, many of our … Read More
March 22, 2020
New York Courts Prohibit Filings in Non-Essential Matters
On March 22, 2020, Chief Administrative Judge Marks issued an order providing that the courts no lon… Read More
March 21, 2020
New York Tolls Statue of Limitations for 30 Days
On March 20, 2020, New York Governor Andrew Cuomo issued an Executive Order tolling statutes of limi… Read More
March 19, 2020
New York State Courts Further Limit Civil Litigation During COVID-19 Outbreak
On March 19, 2020, Chief Administrative Judge Marks issued an order limiting civil litigation in the… Read More
March 19, 2020
State Courts in Manhattan Further Restrict Operations
Today, the New York state courts in New York County (Manhattan) announced further limitations to the… Read More
March 19, 2020
Justices Schecter and Masley Announce Procedures Relating to COVID-19
New York County Commercial Division Justices Schecter and Masley have announced new part rules relat… Read More
March 16, 2020
New York Courts Further Restrict Operations in Response to Coronavirus
Following up on his March 13 memo announcing some limitations on operations in the New York state co… Read More
March 13, 2020
New York State Courts Cancel Jury Trials, Impose Other Limitations in Response to Coronavirus
As other courts have done, the New York state courts have implemented procedures limiting courthouse… Read More
March 9, 2020
S.D.N.Y Limits Courthouse Access in Response to Coronavirus
The S.D.N.Y. has issued an order limiting access to its courthouses in response to coronavirus conce… Read More
