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Articles by John Lundin
Delay in Asserting Jury Waiver Bars its Enforcement
On October 13, 2026, the First Department issued a decision in Iken v. Bohemian Brethren Presbyt. Church, 2026 NY Slip Op. 05909, holding that delay in asserting a jury waiver bars its enforcement, explaining: Defendant’s motion to strike the jury demand was properly rejected.
Court Did Not Err in Cutting Fee Award Based on Requested Fees Being Unreasonably High
On October 9, 2026, the Fourth Department issued a decision in Wilmington Trust, N.A. v. Stradtman Park, LLC, 2026 NY Slip Op. 05883, holding that was not error to cut a fee award based on the requested fees being unreasonably high, explaining: We reject plaintiff’s further contention that the court abused its discretion in determining the amount of the attorneys’ fees awarded.
Aiding and Abetting Claims Dismissed for Failure Adequately to Allege Substantial Assistance
On October 7, 2026, the Second Department issued a decision in Erkman Intl., Co., Ltd. v. PepsiCo, Inc., 2026 NY Slip Op. 05768, holding that aiding and abetting claims should be dismissed for failure adequately to allege substantial assistance, explaining: Here, contrary to the plaintiff’s contention, the Supreme Court properly granted that branch of PepsiCo’s motion which was to dismiss the cause of action alleging aiding and abetting a breach of fiduciary duty asserted against it.
Aiding and Abetting Claims Dismissed for Failure Adequately to Allege Substantial Assistance
On October 7, 2026, the Second Department issued a decision in Erkman Intl., Co., Ltd. v. PepsiCo, Inc., 2026 NY Slip Op. 05768, holding that aiding and abetting claims should be dismissed for failure adequately to allege substantial assistance, explaining: Here, contrary to the plaintiff’s contention, the Supreme Court properly granted that branch of PepsiCo’s motion which was to dismiss the cause of action alleging aiding and abetting a breach of fiduciary duty asserted against it.
Death of Party in Default Does Not Stay Action
On October 7, 2026, the Second Department issued a decision in NYCTL 1998-2 Trust v. Phillip, 2026 NY Slip Op. 05802, holding that the death of a party in default did not stay an action, explaining: In July 2016, the plaintiffs commenced this action against, among others, Llewellyn Phillip (hereinafter the decedent) to foreclose a tax lien on certain real property located in Brooklyn (hereinafter the property). The decedent failed to timely appear or answer the complaint.
Claim Stayed Under Primary Jurisdiction Doctrine
We conclude that the court did not err in determining that the primary jurisdiction doctrine applied to this case.
Option Cannot Be Exercised Before Beginning of Option Period
On September 8, 2026, Justice Patel of the New York County Commercial Division issued a decision in ET JV Holdings, LLC v. TBH-ASL BSA Member LLC, 2026 NY Slip Op. 51558(U), holding that an option cannot be exercised before the beginning of the option period, explaining: Notwithstanding that the December 2 Notice was premature, the Elie Parties argue that the early notice to exercise the option should nevertheless be deemed as effective.
Claim Stayed Under Primary Jurisdiction Doctrine
We conclude that the court did not err in determining that the primary jurisdiction doctrine applied to this case.
Voluntary Payment Doctrine Did Not Bar Claim Because Payment Was Made by Mistake
On October 6, 2026, the First Department issued a decision in 5 Beekman Prop. Owner, LLC v. Henick-Lane, Inc., 2026 NY Slip Op. 05712, holding that the voluntary payment doctrine did not bar a claim because the payment was made by mistake, explaining: The voluntary payment doctrine, which bars recovery of payments voluntarily made with full knowledge of the facts, and in the absence of fraud or mistake of material fact or law, does not apply on these facts.
Voluntary Payment Doctrine Did Not Bar Claim Because Payment Was Made by Mistake
On October 6, 2026, the First Department issued a decision in 5 Beekman Prop. Owner, LLC v. Henick-Lane, Inc., 2026 NY Slip Op. 05712, holding that the voluntary payment doctrine did not bar a claim because the payment was made by mistake, explaining: The voluntary payment doctrine, which bars recovery of payments voluntarily made with full knowledge of the facts, and in the absence of fraud or mistake of material fact or law, does not apply on these facts.
Summary Judgment in Foreclosure Action Denied for Failure Adequately to Establish Nonpayment
On September 30, 2026, the Second Department issued a decision in Banc of Cal., N.A. v.
Request for Foreclosure Settlement Meets Requirement for Moving for Default Judgment
On September 30, 2026, the Second Department issued a decision in Flagstar Bank, FSB v.
Fraud Claim Fails Because of, Among Things, Failure Adequately to Allege Justifiable Reliance on the Alleged Misrepresentations
On September 29, 2026, the First Department issued a decision in Murphy v.
Fraud Claim Fails Because of, Among Things, Failure Adequately to Allege Justifiable Reliance on the Alleged Misrepresentations
On September 29, 2026, the First Department issued a decision in Murphy v.
Party in Default Cannot Assert Affirmative Defense
On September 30, 2026, the Second Department issued a decision in U.S. Bank Trust, N.A. v. Aprile, 2026 NY Slip Op. 05569, holding that a party in default cannot assert an affirmative defense, explaining: The Supreme Court also properly denied dismissal of the complaint insofar as asserted against the defendant pursuant to CPLR 3211(a) on the ground that the action was time-barred.
Note Based on Past Consideration Failed to Meet Requirements for Validity
On October 1, 2026, the First Department issued a decision in Hakim v. Hakim, 2026 NY Slip Op. 05598, holding that a note based on past consideration failed to meet the requirements for validity, explaining: Kamran made a prima facie case for recovery under the promissory note signedby Said by submitting the note, wherein Said promised to pay him $525,000 on June 9, 2003, plus interest at 12% per annum, and testifying that Said never satisfied his obligation on the note.
Questions of Fact Preclude Summary Judgment on Advice of Counsel Defense
On September 24, 2026, the First Department issued a decision in Gilbert v. Powers, 2026 NY Slip Op. 05457, holding that questions of fact precluded summary judgment on an advice of counsel defense, explaining: Defendants’ argument that they are entitled to summary judgment based on the advice of counsel defense is without merit.
Agreement’s Indemnification Provision Fails to Meet Hooper’s High Hurdle for Inter-Party Indemnification
On September 22, 2026, the First Department issued a decision in Aurelius Capital Master Ltd. v. Hertz Intl. Ltd., 2026 NY Slip Op. 05369, holding that an agreement’s indemnification provision failed to meet Hooper‘s high hurdle for inter-party indemnification, explaining: In their cross-appeal, plaintiffs contend they are entitled to prevailing-party attorneys’ fees under section 6(a) of the Backstop Agreement’s indemnification clause.
Plaintiff in Foreclosure Action Fails to Establish its Standing
On September 16, 2026, the Second Department issued a decision in Wilmington Sav. Fund Socy., FSB v. Hilario, 2026 NY Slip Op. 05351, holding that the plaintiff in a foreclosure action had failed to establish its standing, explaining: Where, as here, a defendant challenges the plaintiff’s standing in a foreclosure action, the plaintiff must demonstrate that it was the holder or assignee of the note at the time the action was commenced.
Foreclosure Plaintiff Fails to Establish Standing Because of Questions Regarding Allonge
On September 16, 2026, the Second Department issued a decision in U.S. Bank Trust, N.A. v. Dweck, 2026 NY Slip Op. 05342, holding that a foreclosure plaintiff had failed to establish standing because of questions regarding the allonge, explaining: Generally, a plaintiff moving for summary judgment in a mortgage foreclosure action establishes its prima facie case through the production of the mortgage, the unpaid note, and evidence of default.
Party That Fails to Timely Move to Vacate a Note of Issue Faces a High Burden to Vacate It
On September 2, 2026, Justice Reed of the New York County Commercial Division issued a decision in Python Fin. Solutions, Inc. v. SDCK I LLC, 2026 NY Slip Op. 51450(U), holding that a party that fails timely to move to vacate a Note of Issue faces a high burden in vacating it, explaining: The Uniform Rules set forth two separate and distinct methods for obtaining discovery after a note of issue is filed.
Court Erred in Reinstating Claims Rejected by Jury
On September 3, 2026, the First Department issued a decision in Beach v. Touradji Capital Mgt., LP, 2026 NY Slip Op. 05231, holding that a court erred in reinstating claims rejected by a jury, explaining: Defendants are not entitled to reinstatement of their counterclaims, which were each unequivocally rejected by the jury after a lengthy trial.
Court Declines to Grant a Stay in Connection With the Withdrawal of Counsel
CPLR 321 (b) (2) provides: an attorney of record may withdraw or be changed by order of the court in which the action is pending, upon motion on such notice to the client of the withdrawing attorney, to the attorneys of all other parties in the action or, if a party appears without an attorney, to the party, and to any other person, as the court may direct.
Notice to Admit May Not Address Legal Conclusions or Facts That Go to the Heart of the Dispute
CPLR 3123(a) provides, in relevant part, that a party may serve upon any other party a written request for admission by the latter of the truth of any matters of fact set forth in the request, as to which the party requesting the admission reasonably believes there can be no substantial dispute at the trial and which are within the knowledge of such other party or can be ascertained by him or her upon reasonable inquiry.
Claim Dismissed for Failure to Establish Attorney-Client Relationship
On August 26, 2026, the Second Department issued a decision in Blank v. Petrosyants, 2026 NY Slip Op. 05074, dismissing a legal malpractice claim for failure to establish an attorney-client relationship, explaining: The elements of a cause of action sounding in legal malpractice include the existence of an attorney-client relationship between the plaintiff and the defendant. An attorney-client relationship may exist in the absence of a retainer or fee.
Court Erred in Finding that High Bar for Antisuit Injunction Had Been Met
On August 27, 2026, the First Department issued a decision in Astraea NYNY LLC v. Ganley, 2026 NY Slip Op. 05143, holding that a court erred in holding that the high bar for an antisuit injunction had been met, explaining: Supreme Court improvidently exercised its discretion when it granted plaintiff’s motion for an antisuit injunction. The court’s power to issue an antisuit injunction is rarely and sparingly employed.
Purchaser for Value Defeats Quiet Title Action
On August 26, 2026, the Second Department issued a decision in 853 Lexington, LLC v. JB Lexington, LLC, 2026 NY Slip Op. 05066, holding that a bona fide purchaser for value defeated a quiet title action, explaining: The plaintiff commenced this action against the defendant JB Lexington, LLC (hereinafter JB Lexington), and another defendant, pursuant to RPAPL article 15 to quiet title to certain real property located in Brooklyn and to impose a constructive trust on that property.
Party That Fails to Justify Privilege Claim Loses It
On August 3, 2026, Justice Reed of the New York County Commercial Division issued a decision in Python Fin. Solutions, Inc. v. SDCK I LLC, 2026 NY Slip Op. 51192(U), holding that a party that failed adequately to justify a privilege claim loses it, explaining: New York courts generally favor open and liberal discovery. However, the CPLR establishes three categories of protected materials: privileged matter, attorney work product and trial preparation materials.
Affidavit Rejected for Failure to Include Exact Wording Required by CPLR
On July 15, 2026, Justice Reed of the New York County Commercial Division issued a decision in Magnetic Parts Trading Ltd. v. National Air Cargo Group, Inc., 2026 NY Slip Op. 51114(U), rejecting an affidavit because it did not include the exact working required by the CPLR, explaining: Before it reaches the merits, the Court addresses several preliminary issues. First, in opposition, Defendant argues the Court should disregard the affirmations of Daniel C. Green, Esq.
Counsel Sanctioned For Bringing Frivolous Appeal Seeking to Reverse Trial Court’s Sanctions Against It
On July 2, 2026, the First Department issued a decision in Slabakis v. Poyiadjis, 2026 NY Slip Op. 04265, sanctioning counsel for bringing a frivolous appeal seeking to reverse the trial court’s sanctions against counsel, explaining: Supreme Court was entitled, pursuant to CPLR 5019(a), to amend its November 8, 2024 order to reflect that the $24,045 awarded to defendants as a result of plaintiff’s counsel’s frivolous conduct was against plaintiff’s counsel and not plaintiff himself.
Fraud Claim Fails Because Plaintiff Was Not Reasonable In Relying on Incomplete Information
Plaintiff’s claims are barred by the releases he signed and because he failed to allege a fraud separate from the subject of the releases.
When Butch Cassidy Robbed an Idaho Bank
BY JOHN W. LUNDIN Butch Cassidy robbed the Montpelier bank in southeast Idaho on Aug. 13, 1896, along with two associates, Elza Jay and Bob Meeks. Montpelier was settled in 1864, by 16 Mormon families sent by Brigham Young. It was on the Oregon Trail, and the settlers sold fresh produce, dairy products and beef to travelers. The Oregon Short Line Railroad, built between 1882 and 1884, brought in non-Mormon settlers from the main Union Pacific line.
No Intraparty Indemnification Because Agreement Did Not Unmistakably Require It
On June 2, 2026, the First Department issued a decision in Board of Mgrs. of the 432 Park Condominium v.
Sua Sponte Order Not Directly Appealable
On May 27, 2026, the Second Department issued a decision in U & Me Homes, LLC v.
Action Cannot be Dismissed for Failure to Prosecute Before Issue Has Been Joined
On May 27, 2026, the Second Department issued a decision in OneWest Bank, FSB v. Johnson, 2026 NY Slip Op. 03315, holding that an action cannot be dismissed for failure to prosecute before issue has been joined, explaining: The plaintiff correctly contends that the Supreme Court was without authority to dismiss the complaint in this action pursuant to CPLR 3216, since issue had not been joined.
Failure to Exercise Best Efforts Constitutes Breach of Covenant of Good Faith and Fair Dealing
On May 20, 2026, the Second Department issued a decision in GPB Capital Holdings, LLC v. Dibre, 2026 NY Slip Op. 03150, holding that the failure to exercise best efforts constituted a breach of the covenant of the implied duty of good faith and fair dealing, explaining: Contrary to the plaintiffs’ contention, the Supreme Court properly denied dismissal of the fourth counterclaim, alleging breach of the implied covenant of good faith and fair dealing.
Client’s Failure to Pay is Sufficient Grounds for Withdrawal
CPLR 321 (b) (2) provides: an attorney of record may withdraw or be changed by order of the court in which the action is pending, upon motion on such notice to the client of the withdrawing attorney, to the attorneys of all other parties in the action or, if a party appears without an attorney, to the party, and to any other person, as the court may direct.
Statute of Limitations on Mortgage Balance Begins to Run When Lender Demands That Entire Balance be Paid
On May 20, 2026, the Second Department issued a decision in U.S. Bank Trust N.A. v. Barr, 2026 NY Slip Op. 03199, holding that the statute of limitations on a claim for failure to pay the balance due on a mortgage begins to run when the lender demands that the entire balance be paid, explaining: An action to foreclose a mortgage is governed by a six-year statute of limitations.
Court Should Have Vacated Note of Issue Because of Changed Circumstances
On May 13, 2026, the Second Department issued a decision in Harrison v. 160-01 Jamaica Ave. Corp., 2026 NY Slip Op. 02970, holding that a trial court should have vacated a note of issue because of changed circumstances, explaining: [T]he Supreme Court should have granted that branch of Atlantic’s motion which was pursuant to 22 NYCRR 202.21 to vacate the note of issue. A motion to vacate a note of issue is addressed to the sound discretion of the Supreme Court.
Action Should be Dismissed for Failure Timely to Move for a Default Judgment
On May 13, 2026, the Second Department issued a decision in U.S. Bank N.A. v.
Plaintiff Fails to Meet Heavy Burden of Escaping Mandate of Forum Selection Clause
On May 6, 2026, the Second Department Westchester Fitness, LLC v. Retrofitness, LLC, 2026 NY Slip Op. 02870, holding that a plaintiff had failed to meet the heavy burden for escaping the mandate of a forum selection clause, explaining: Under CPLR 3211(a)(1), a dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law.
Butch Cassidy and the Sundance Kid Bedeviled Union Pacific’s Harriman
BY JOHN W. LUNDIN Butch Cassidy, aka Robert Leroy Parker, his side kick the Sundance Kid, whose given name was Henry Longabaugh, and the Hole in the Wall gang were the most prolific, successful and best-known bank and train robbers in the history of the American West.
Conversion Claim Can be Based on Broker’s Unreasonable Actions in Transferring Plaintiff’s Property Without Her Consent
On April 20, 2026, Justice Bannon of the New York County Commercial Division issued a decision in Mojela v.
That Party Owed Money Insufficient Basis for Conversion Claim
On April 15, 2026, the Second Department issued a decision in Canzona v.
Tort Claims Dismissed as Duplicative of Contract Claim
On April 1, 2026, Justice Cohen of the New York County Commercial Division issued a decision in Levy v. Viscogliosi Bros., LLC, 2026 NY Slip Op. 31338(U), dismissing tort claims as duplicative of a contract claim because they arose from the same alleged misconduct, explaining: A tort claim which merely restates a contract claim cannot be maintained.
Counsel and Client Sanctioned for Asserting Baseless Legal Malpractice Claims
On April 7, 2026, the First Department issued a decision in Link Motion Inc. v. DLA Piper LLP (us), 2026 NY Slip Op. 02066, upholding sanctions awarded against counsel and its client for asserting baseless legal malpractice claims, explaining: The court correctly awarded sanctions pursuant to 22 NYCRR 130-1.1 against plaintiff and Felicello Law for the assertion of the same frivolous legal malpractice claim that resulted in Rule 11 sanctions in the mirror image federal malpractice action.
Non-Party to PSA May Still Invoke the PSA’s No-Action Clause
On April 2, 2026, the First Department issued a decision in Hudson ES LLC v. First Franklin Fin. Corp., 2026 NY Slip Op. 02041, holding that a defendant that is not a party to a PSA still can invoke the PSA’s no-action clause, explaining: Supreme Court properly dismissed the complaint as barred by § 10.08 of the Pooling and Service Agreement dated as of January 1, 2007 (PSA) (the no-action clause).
That Parties Agreed to Keep Documents Confidential Insufficient Grounds to Seal Court Records
On March 24, 2026, Justice Cohen of the New York County Commercial Division issued a decision in Goanna Capital Private Tech. II LP v. Blair, 2026 NY Slip Op. 31203(U), holding that an agreement by the parties to keep documents confidential was an insufficient ground to seal court records, explaining: Pursuant to § 216.1(a) of the Uniform Rules for Trial Courts, this Court may seal a filing upon a written finding of good cause, which shall specify the grounds thereof.
When Defendant Directs Opposing Counsel to Communicate With its Counsel, Opposing Counsel Did Not Err in Sending Notice of Client Rights to Counsel
On March 16, 2026, Justice d’Auguste of the New York County Commercial Division issued a decision in McLaughlin & Stern, LLP v.
That Merchant Cash Advance Agreement’s Reconciliation Provision Favor’s Plaintiff Does Not Make the Agreement an Usurious Loan
[T]he eight-page agreement explicitly emphasizes in several sections that the transaction is not a “loan” which would bring with it the applicability of usury laws, amongst other things. Defendant makes the allegation that the transaction was indeed a loan, and therefore because the calculated annual interest rate of 1898% exceeds the civil cap of 16% and the criminal cap of 25%, it is usurious and thus illegal.
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