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A recent decision by the Honorable Linda S. Jamieson again demonstrates that the Justices of the Westchester Commercial Division will not decide matters on procedural technicalities, and usually will go out of their way to decide a case on the merits. The matter involved service of process, and an apparent default in appearance. First, some background. In New York, the easiest way to serve a summons on an entity is usually by serving the Secretary…
We’ve previously written about how judges in the Westchester Commercial Division will dismiss cases in which the contract at issue contains a forum selection clause requiring the parties to resolve their dispute elsewhere. On September 10, 2019, Justice Linda Jamieson issued another decision doing just that. Satin v. 1-800 NY Bulbs Limited, Index No. 63512/2018, concerned the sale of defendant 1-800 NY Bulbs Limited (“Bulbs”). A Stock Purchase Agreement (“SPA”), among defendant Tarsier Ltd., plaintiff…
Sometimes, companies want employees to think like owners, and for good reason. With a vested interest in their work and the team’s success, employees are more motivated to perform at the highest level. They also focus on what’s best for the business rather than just themselves. But firing an employee with “skin in the game” can be a mess, as was the case in Dwyer v. Avo Construction LLC, Index No. 53784/2019. In 2014, Avo…
In real estate agency relationships, an agent owes its client, a buyer or seller of property, fiduciary duties, including duties of undivided loyalty, reasonable care, and confidentiality. Due to the increasing number of large brokerage firms, “dual agency” deals have become commonplace. A dual agency occurs when an agent represents the buyer and the seller in the same deal, or, the buyer’s and seller’s agents are employed by the same firm. In New York, dual agency is legal…
There’s a clever saying of murky origin that goes, “if your only tool is a hammer, then every problem looks like a nail.” It describes the “law of the instrument,” or Maslow’s Hammer, which says that people tend to over-rely on their available and familiar tools, even when they shouldn’t. Well, when you’re looking for a default judgment, service often looks like nail and mail.  And often it shouldn’t look that way. We’ve previously written
New York’s Commercial Division is an attractive forum for parties to litigate disputes over financial transactions. And, because so many transactions flow through New York institutions, aggrieved plaintiffs often believe that the flow of money through the state gives them a hook to sue defendants in New York courts. Often, that is true. But there are limits. Justice Jamieson discussed those limits in de Arata v. Mathison, Index No. 55723/16. In that case, the plaintiff…
In an earlier post, we explained that the Westchester Commercial Division will not grant a motion for a default judgment without reviewing the papers. The Court will first determine whether the plaintiff has made a prima facie showing of its entitlement to a judgment. It is not unusual for the Westchester Commercial Division justices to deny even an unopposed motion for a default on the ground that it is not supported by admissible evidence.…
A recent decision from Westchester Commercial Division Justice Linda Jamieson presents an interesting contrast to a case we discussed in an earlier post. In Prisco v. L’Aquila Realty LLC, Index No. 58654/2018, Petitioner moved to disqualify opposing counsel, who was deposed in the case and certain to be called as a witness at trial. Petitioner argued that, pursuant to Rule 3.7 of the Rules of Professional Conduct, a lawyer cannot be both an…
On June 14, 2019, the New York State Bar Association hosted a breakfast at the Westchester County Courthouse with Justices Linda Jamieson and Gretchen Walsh. This was a great opportunity to hear from Westchester’s Commercial Division judges on various topics, including their expectations of attorneys who appear before them. Here are a handful of important takeaways: Discovery Disputes: The justices expect counsel to abide by Commercial Division Rule 14, which requires good faith negotiations to…
Commercial leases are often complicated, as the stakes are high for each party. A tenant needs the right space to operate its business and a landlord needs reliable tenants to cover its expenses and earn a profit. When tenants cease paying rent and vacate or are evicted, actions by landlords to collect unpaid rent ensue. Sometimes, those actions include claims against a tenant’s principal to enforce a personal guarantee in the lease. That was at…