Page 25 - WCBA Appellate Practice Committee CLE May 2024-Handout

on the court’s extreme risk order subject to renewal upon a further hearing, and the return of weapons
where the burden of proof is not met.

Twitchess Tech. Prods., LLC v Mechoshade Sys., LLC, 2024 WL 1290403, 2024 NY Slip Op. 01744
(opinion by Connolly).

The court analyzed the factors to consider when evaluating whether a restrictive covenant in an
ordinary commercial contract is enforceable. Although there is a dearth of New York state case law on
this issue, the court analyzed these types of covenants under a rule of reason, considering (1) whether
the covenant protects a legitimate business interest, (2) the reasonableness of the geographic scope and
temporal duration, and (3) the degree of hardship upon the party against whom the covenant is
enforced. This appeal also required consideration of whether courts have the power to sever and grant
partial enforcement of overly broad restrictive covenants in ordinary commercial contracts. Because the
Court of Appeals has held that courts have such power with regard to overly broad restrictive covenants
in employment agreements (BDO Seidman v Hirshberg, 93 NY2d 382, 395), the Appellate Division held
that courts also have the power to sever and grant partial enforcement of overly broad restrictive
covenants in ordinary commercial contracts, and may do so under the appropriate circumstances.

CASES TO BE PRESENTED BY DUFFY, J.

In Rem Tax Foreclosure Action No. 53, 216 AD3d 85 [May 17, 2023] [Justice Wooten opinion; Justices
Connolly, Zayas, and Wan concur]

HOLDING: In a tax foreclosure action, this Court reversed an order of the Supreme Court finding that the
court should have denied the defendants’ separate motions to vacate the judgment of foreclosure and
to vacate deeds transferring certain properties to a third party under New York City’s Third Party
Transfer Program as the motions were timebarred and the defendants’ mere denial of receipt of the
notices of foreclosure were insufficient to overcome the presumption of regularity of mailing or the
presumption of regularity of all proceedings taken.

FACTS: The City of New York commenced this action, pursuant to Administrative Code of the City of New
York 11-404(a), to foreclose certain tax liens, including six parcels of real property (hereinafter the
properties) with unpaid taxes which were owned separately by the defendants. Notices of foreclosure of
the properties were published for six consecutive weeks in certain publications, pursuant to
Administrative Code 11-406(a), and notices of foreclosure were mailed by certified and regular mail to
the defendants. The defendants failed to timely serve answers and thereafter judgments of foreclosure
were entered. Several of the defendants took no action to redeem their properties within the four-
month mandatory redemption period. Two of the defendants entered into installment agreements with
the City of New York’s Department of Finance and/or the Department of Environmental Protection.
However, those defendants defaulted on the installment agreements. Several of the properties were
then transferred to a nonparty, pursuant to New York City’s Third Party Transfer Program (hereinafter

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