In Behler v. Kai-Shing Tao, the New York Court of Appeals found that the merger clause contained in a limited liability company agreement governed by Delaware law superseded an alleged prior oral agreement between the...more
Executive Summary -
The recent decision In re 301 W N. Ave., LLC, 666 B.R. 583 (Bankr. N.D. Ill. 2025) represents a significant development at the intersection of corporate governance, commercial real estate, and...more
On January 28, 2025, the New York Appellate Division, First Department refused to enforce a contractual provision that required a tenant-shareholder to pay a co-op’s attorneys’ fees in all lawsuits that the tenant-shareholder...more
In a recent case, 513 West 26th Realty LLC v. George Billis Galleries Inc., a New York Supreme Court addressed whether the COVID-era personal guaranty relief statute (the Guaranty Law) violated the Contracts Clause of the...more
A recent decision in the Commercial Division of the Supreme Court, New York County, emphasizes the importance of clear and unambiguous contract drafting in all lending situations, including real estate. Acting Supreme Court...more
The New York County Supreme Court recently held that in the event of foreclosure, a receiver can be appointed, regardless of necessity, when the parties have contracted for such appointment. 24 West 57 APF LLC (“Defendant”)...more
4/3/2024
/ Borrowers ,
Contract Terms ,
Court-Appointed Receivers ,
CPLR ,
Ex Parte ,
Financial Services Industry ,
Foreclosure ,
Mortgage Lenders ,
Mortgages ,
NV Supreme Court ,
Real Estate Transactions ,
Receivership ,
Wells Fargo
Taken for granted, overlooked and generally not read very carefully are provisions ensconced with the moniker “miscellaneous.” I would argue that while they are viewed as the “second fiddle” of legal provisions contained in...more
On March 21, 2022, the Court of Special Appeals of Maryland (the “Court”) decided in Peterbilt of Baltimore LLC v. Capitol Gateway Properties, LLC that provisions of an option to purchase (the “Option”) pursuant to the...more
A ground lease is both a conveyance and a contractual agreement between a landlord (the ground lessor) and a tenant (the ground tenant) pursuant to which the ground lessor, as the fee owner of the real property, conveys a...more
On March 30, 2022, the New York State Supreme Court, New York County (the “Court”) decided in Times Square JV LLC v. Walber Broadway LLC that a ground lease-tenant that is in default under the ground lease for failure to pay...more
6/30/2022
/ Breach of Contract ,
Commercial Leases ,
Contract Terms ,
Failure To Pay ,
Ground Leases ,
Landlords ,
Real Estate Transactions ,
Rental Property ,
Right of First Refusal ,
Summary Judgment ,
Tenants
The New York State Supreme Court, New York County Commercial Division (the “Court”) decided in U.S. Bank, N.A. v. 342 Property LLC, on February 14, 2022, that a mezzanine lender that is not a party to loan documents that...more
4/27/2022
/ Article III ,
Borrowers ,
Breach of Contract ,
Contract Terms ,
Default ,
Foreclosure ,
Intercreditor Agreements ,
Lenders ,
Membership Interest ,
Mezzanine Lenders ,
Mortgages ,
NY Supreme Court ,
Real Estate Market ,
Standing ,
Summary Judgment ,
US Bank National Association
While some commercial real estate loans are fully funded at loan closing, others are funded in whole or in part through future advances. Some loans provide for future advances to fund tenant improvement work and leasing...more
Reserves are amounts deposited with a lender as security for an obligation expected to occur at a future date, and can serve various functions. The following is an overview of typical reserves in a real estate finance...more
On June 29, 2021, in The Gap, Inc. v. 170 Broadway Retail Owner, LLC, the New York Appellate Division, First Department, overturned an earlier decision by the New York Supreme Court and issued a decisive victory to commercial...more
9/2/2021
/ Business Interruption ,
Commercial Leases ,
Commercial Property Owners ,
Commercial Tenants ,
Contract Terms ,
Coronavirus/COVID-19 ,
Frustration of a Common Purpose ,
Infectious Diseases ,
Landlords ,
Rent ,
Rental Property ,
Retailers
The United States District Court for the Southern District of New York (the “Court”) decided in Gap Inc. v. Ponte Gadea N.Y. LLC on March 8, 2021 that a retail tenant will not be able to use the COVID-19 pandemic as an excuse...more
6/3/2021
/ Breach of Contract ,
Commercial Leases ,
Commercial Tenants ,
Contract Terms ,
Coronavirus/COVID-19 ,
Counterclaims ,
Force Majeure Clause ,
Frustration of a Common Purpose ,
Gap Inc ,
Infectious Diseases ,
Lease Termination ,
Non-Essential Businesses ,
Rental Property ,
Retailers ,
Summary Judgment ,
Unjust Enrichment
Lenders often require their borrowers to be “special purpose entities” in real estate transactions. This is a way that lenders can mitigate their bankruptcy risk in the event that the borrower or any of its parent entities...more
The fluidity of New York’s legal landscape continues to accelerate in the wake of the pandemic. Proposed legislation in New York may disrupt long-established law that commercial landlords do not have a duty to mitigate their...more