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Current Developments in the Commercial Divisions of the
New York State Courts
Posted: July 23, 2017

Plaintiff Awarded Fees Based on Unmistakably Clear Language in Contract

On July 14, 2017, Justice Kornreich of the New York County Commercial Division issued a decision in SASOF TR-43 Aviation Ireland Ltd. v. Eastok Avia FZC, Yanair Ltd., 2017 NY Slip Op. 31514(U), awarding a prevailing party attorney’s fees under a contract, explaining:

Plaintiffs request an award of reasonable attorneys’ fees under the Agreements. When a party is under no legal duty to indemnify, a contract assuming that obligation must be strictly construed to avoid reading into it a duty which the parties did not intend to be assumed. A party does not waive the benefit of the standard rule against fee-shifting absent unmistakably clear language in the contract.

Sections 16, the Remedies sections, of the Agreements set forth plaintiffs’ remedies in the Event of Default . . . . One remedy provided by Section 16 permits plaintiffs to “proceed by appropriate court action . . . to enforce performance by Lessee of the applicable covenants of any Lease and to recover damages for the breach thereof . . . .” These provisions unmistakably evince Eastok’s intent to reimburse plaintiffs’ reasonable legal fees in prosecuting the instant action to enforce Eastok’s performance and recover damages for its breach-namely, to recover past due lease payments and the engines.

(Internal quotations and citations omitted) (emphasis added).

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