On November 15, 2019, the Appellate Division, Fourth Department, issued a decision involving the impact, if any, of a bankruptcy discharge on a subsequent foreclosure proceeding – an issue, the Court observed, it had not previously addressed. In Wilmington Sav. Fund Socy., FSB v. Fernandez , 2019 N.Y. Slip Op. 08290 (4th Dept. Nov. 15, 2019) ( here ), the Court held that, absent terms in the mortgage to the contrary, a discharge in bankruptcy does not automatically accelerate

Arbitration is an alternative form of dispute resolution where the parties voluntarily agree that a neutral, private person will resolve any legal disputes between them, instead of a judge or jury in a court of law. Rent-A-Ctr., W, Inc. v. Jackson , 561 U.S. 63, 67 (2010) (noting that “arbitration is a matter of contract”). In business and commercial transactions, arbitration is the preferred means of resolving disputes. It is encouraged and recognized as the public policy of

Retaliation is the primary concern among those who decide to blow the whistle on wrongdoing. It represents a significant impediment to obtaining the primary goals of whistleblowing:  accountability and transparency of government and corporate activities. According to a 2010 government survey of federal employees, “approximately one-third of the individuals who felt they had been identified as a source of a report of wrongdoing also perceived either threats or acts of reprisal

Last week, two Appellate Division courts affirmed the dismissal of fraud claims because the parties asserting the claims failed to demonstrate justifiable reliance, and assert their claim within the statute of limitations. Atlas MF Mezzanine Borrower, LLC v. Macquarie Tex. Loan Holder LLC , 2019 N.Y. Slip Op. 08009 (1st Dept. Nov. 7, 2019) ( here ), and Beacon Estates, LLC v. Ingrassia , 2019 N.Y. Slip Op. 08042 (4 th Dept. Nov. 8, 2019) ( here ). In today’s post, this Blog l

This Blog, in “ Contract Must be Enforced According to Its Clear and Concise Terms Says Second Department ,” analyzed Gristede’s Operating Corp. v. Scarsdale Shopping Ctr. Assoc., LLC, 2019 N.Y. Slip Op. 07771 (2 nd Dep’t October 30, 2019), in which the Second Department found that, inter alia , clear and unambiguous contracts will be interpreted according their terms. The same analysis applies with respect to notice/termination provisions of construction contracts.  Thus,

Under New York’s rules of contract interpretation, “when parties set down their agreement in a clear, complete document, their writing should be enforced according to its terms.” Riverside S. Planning Corp. v. CRP/Extell Riverside, L.P. , 13 N.Y.3d 398, 403 (2009); W.W.W. Assoc. v. Giancontieri , 77 N.Y.2d 157, 162 (1990). “This rule is applied with special force ‘… where commercial certainty is a paramount concern, and where the instrument was negotiated between sophisticate

Previously, this Blog has written about the difficulties a party encounters when trying to vacate an arbitral award. ( E.g. , here , here and here .) Indeed, courts are very reluctant to disturb the decision of an arbitrator. The cases show that the courts limit vacatur of an arbitral award to a very narrow set of statutory and judicially created reasons. As shown in Matter of Nexia Health Tech., Inc. v. Miratech, Inc. , 2019 N.Y. Slip Op. 07701 (1st Dept. Oct. 24, 2019) (

There has been a lot of litigation regarding an out of possession landlord’s tort liability to third parties.  Generally, an out of possession landlord “is not liable for injuries resulting from the condition of the demised premises….”  Henry v. Hamilton Equities, Inc. (Ct Appeals October 24, 2019).  An exception exists where “the landlord covenants in the lease or otherwise to keep the land in repair.”  Henry (citing , Putnam v. Stout , 38 N.Y.2d 607 (1976)) (internal quot

It is well settled that parties are free to contractually shorten a limitations period as long as their intent to do so is clearly stated and the time period is reasonable. Whitney Lane Holdings, LLC v. Don Realty, LLC , 159 A.D.3d 1163, 1165 (3d Dept. Mar. 8, 2018); John J. Kassner & Co. v. City of New York , 46 N.Y.2d 544, 550-551 (1979); see also CPLR 201, 213. But what is reasonable? As one might think, the answer to the question depends upon the facts and circumstances