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District court order dismissing a procedural due process claim as precluded by an earlier dismissal of a similar claim by a New York state court for lack of timeliness is vacated where the dismissal of a claim solely for lack of timeliness in a New York state court does not preclude the same claim from being brought in another jurisdiction with a longer statute of limitations, including a federal court exercising its federal question jurisdiction.    

Read Cloverleaf Realty of N.Y., Inc. v. Town of Wawayanda, No. 07-3405

Appellate Information
Appeal from an order of the United States District Court for the Southern District of New York.
Argued December 8, 2008
Decided July 15, 2009

Judges
Before: FEINBERG, LEVAL, and CABRANES, Circuit Judges.
Opinion by FEINBERG, Circuit Judge.

Counsel
For Appellant: James G. Sweeney.

For Appellee: Richard J. Guertin, Maria Condoluci.

In an action involving payments related to a lease and recognition agreement, district court judgment in favor of plaintiff is vacated and remanded where: 1) New York's Uniform Commercial Code does not prohibit defendant from asserting constructive eviction as a defense to plaintiff's claims arising from the lease; 2) the estoppel certificate in the recognition agreement does not bar defendant's constructive eviction defense if defendant was unaware of the faulty condition of the building pad when it executed the parties' recognition agreement and its lack of awareness was reasonable at the time; and 3) if defendant was constructively evicted, the lease was terminated and defendant was relieved of its obligation to pay rent under the "hell or high water" clause of the parties' recognition agreement. 

Read Reliastar Life Ins. Co. of New York v. Home Depot U.S.A, Inc., No. 07-0087

Appellate Information
APPEAL from a judgment of the United States District Court for the Eastern District of New York.
Argued: March 25, 2008
Decided: June 29, 2009

Judges
Before JACOBS, Chief Judge and HALL, Circuit Judge.
Per Curium Opinion

Counsel
For Appellee: Anthony M. Piccione, Otterbourg, Steindler, Houston & Rosen, P.C., New York, NY.
For Appellant: John H. Gross, Proskauer Rose LLP, New York, NY.