Three Opinions from New York’s Commercial Division Addressing Covid-19 Issues

New York Commercial Division judges have issued a number of Covid-19 related opinions during the pandemic.

Commercial Reasonableness During Covid-19

In D2 Mark LLC v. Orei VI Investments, the New York County Commercial Division faced the issue of “what is a commercially reasonable sale of a landmarked hotel during the world-wide COVID-19 pandemic.” A copy of Judge Masley’s opinion granting some relief to borrowers who defaulted on loans, allegedly due to the pandemic, can be found here.

Failure to Pay Rent During Covid-19

In Prestige Deli & Grill Corp. v. PLB Bedford Holdings, LLC, the Kings County Commercial Division found Governor Cuomo’s executive order regarding foreclosures and non-payment of rent applied in this Yellowstone injunction action.  A copy of Judge Ruchelsman’s opinion can be found here.

Forum Selection Clauses when Exclusive Forum Unavailable During Covid-19

In Posada de Puerto Rico Associates, LLC v. Condado Plaza Acquisition, LLC, plaintiff won relief from the Monroe County Commercial Division, which put a halt to an action in Puerto Rico on the same underlying issues.  The parties’ agreement included an exclusive New York state or federal jurisdiction forum selection clause. Defendants argued it was unenforceable because, among other things, the pandemic did not allow them to pursue their case in New York, and they had no option but to pursue relief against plaintiff in Puerto Rico.  The court found “[t]he evolving COVID-19 case law in the United States and New York’s case law and statutes … provide a framework that compels the conclusion that a temporary closure of the New York state court system did not permanently invalidate the Agreement’s exclusive jurisdiction provision.” A copy of Judge Odorisi’s opinion can be found here.