Commercial Division Blog: Current Developments in the Commercial Divisions of the New York State Courts

On March 5, 2024, the Appellate Division, First Department, unanimously reversed a lower court decision denying summary judgment in lieu of complaint on claims to recover on a note and guaranty. In Marjan International Corporation v. Lillian August Designs Inc., Case No. 2021-04798, the Court relied on language from the note and guaranty stating that the defendant “acknowledges and agrees that this Note is an instrument for the payment of money only within the meaning of the CPLR 3213 and expressly waives any right and hereby agrees not to assert that this Note is not such an instrument.” This language was dispositive, the Court said, and obviated the need to further consider whether the note and guarantee fell within the expedited procedure of CPLR 3213. The Court explained: Read More

On November 28, 2023, in Josh Weisberg v. Gary D. Standard, et al., Index No. 651417/2022, Justice Margaret A. Chan granted Plaintiff Josh Weisberg’s motion for reargument of summary judgment seeking to hold a guarantor liable for more than $10 million owed severally by all the other Defendants. The Court had granted Plaintiff’s earlier motion for summary judgment on liability against the Defendant debtors but denied it as to the apportionment of the amount of liability severally among the various Defendants. When considering Plaintiff’s reargument, the Court highlighted that the guarantor, Gary Standard, guaranteed the underlying note “fully and unconditionally” and agreed to language stating, “the Guaranty shall be directly enforceable against [Gary, as guarantor] without first resorting to [the other Defendants] or exhausting any remedies against [those Defendants].” The Court found that this language, and the circumstances of the case, warranted reargument and the granting of summary judgment on liability and damages against the guarantor. The Court explained: Read More

In an Opinion, dated June 26, 2023, in Manhattan Chrystie St. Dev. Fund LLC v. Witkoff Group LLC, 2023 NY Slip Op 50622(U), Justice Robert Reed denied Defendants’ motions to dismiss a breach of guaranty claim. Plaintiff brought a claim for breach of a guaranty that assured Plaintiff payment and performance of certain obligations in the event of ‘willful misconduct’ by the managing member of a joint venture. The Court explained: Read More

On May 26, 2023, Justice Margaret A. Chan of the New York County Commercial Division issued a decision in Itria Ventures LLC v. Singh Oil Corp., 2023 NY Slip Op 31809(U), denying a motion for summary judgment in lieu of complaint against guarantors on the ground that the guaranty was one of both payment and performance, and was thus not an obligation for the payment of money only, explaining: Read More

In a decision dated May 2, 2023, in BBM3, LLC v. James Vosotas, Index No. 652015/21, First Department Case Nos. 2022-01935 and 2023-00050, the Appellate Division, First Department affirmed the decision by the Motion Court, Andrew Borrok, J., granting plaintiff’s motion pursuant to CPLR 3212 for summary judgment in lieu of complaint. The First Department explained: Read More

On March 27, 2023, Justice Margaret A. Chan of the New York County Commercial Division issued a decision in HCC Insurance Holdings, Inc. v. Athenium Analytics LLC, 2023 N.Y. Misc. LEXIS 1317. The Court held that an unconditional guaranty on a note was an instrument for the payment of money only within the meaning of CPLR 3213, even where the guarantee, in the preamble and within a provision providing for indemnification, including the word “performance.” The Court explained: Read More