Blogs

Monthly Archives: January 2017

Posted: January 21, 2017

Broad Force Majeure Clause Enforced

On January 17, 2017, the First Department issued a decision in Constellation Energy Services of New York, Inc. v. New Water Street Corp., 2017 NY Slip Op. 00260, enforcing a broad force majeure provision, explaining: Force majeure clauses are to be interpreted in accord with their purpose, which is to limit damages in a case… Read more »

Posted: January 20, 2017

No Dismissal on Foreign Statute of Limitations: Insufficient Evidence of Foreign Law

On January 9, 2017, Justice Kornreich of the New York County Commercial Division issued a decision in Multibank, Inc. v. Access Global Capital LLC, 2017 NY Slip Op. 30036(U), declining to dismiss an action based on a foreign statute of limitations because of insufficient evidence of foreign law, explaining: When a nonresident sues on a… Read more »

Posted: January 19, 2017

Party Waived Right to Serve Discovery Demands by Disregarding Case Management Order Deadlines

On January 17, 2017, the First Department issued a decision in Vandashield Ltd v. Isaacson, 2017 NY Slip Op. 00259, holding that a party waived the right to serve discovery demands by failing timely to do so, explaining: The court providently exercised its discretion in finding, on July 20, 2015, that defendants had waived their… Read more »

Posted: January 18, 2017

Term Sheet Found to be Binding Contract

On January 6, 2017, Justice Scarpulla of the New York County Commercial Division issued a decision in McGowan v. Clarion Partners, LLC, 2017 NY Slip Op. 30019(U), holding that a term sheet was a binding contract, explaining: The standard for determining whether the essential terms are included in a contract is necessarily flexible, varying for… Read more »

Posted: January 17, 2017

Court Confirms Arbitration Award Despite Party’s Misconduct

On January 9, 2017, Justice Kornreich of the New York County Commercial Division issued a decision in 1552 Broadway Retail Owner LLC v. McDonald’s Corporation, 2017 NY Slip Op. 50011(U), confirming an arbitral award despite evidence of misconduct by a party, explaining: It is a bedrock principle of arbitration law that the scope of judicial… Read more »

Posted: January 16, 2017

Fraudulent Inducement Claim Fails for Failure to Prove Out-of-Pocket Damages

On January 12, 2017, the First Department issued a decision in Kumiva Group, LLC v. Garda USA Inc., 2017 NY Slip Op. 00235, granting summary judgment dismissing a counterclaim for fraudulent inducement for failure adequately to plead out-of-pocket damages, explaining: Initially, as to Garda’s damages, New York courts for over one hundred years have differentiated… Read more »

Posted: January 15, 2017

Foreign Entity’s Designation of Location With Secretary of State Controls for Venue Purposes

On December 21, 2016, Justice Ash of the Kings County Commercial Division issued a decision in Simshabs Capital Partners, Ltd. v. Ellis, 2016 NY Slip Op. 32609(U), declining to transfer an action for improper forum, explaining: With respect to Ellis’s motion to change venue to Albany County, the motion is denied. A foreign corporation’s designation… Read more »

Posted: January 14, 2017

Court Will Not Enforce Unreasonable Forum Selection Clause

On January 12, 2017, the First Department issued a decision in Prospect Funding Holdings L.L.C v. Maslowski, 2017 NY Slip Op. 00253, holding that a forum selection clause should not have been enforced, explaining: The New York action should have been dismissed pursuant to CPLR 327(a). In the interest of substantial justice, the parties’ dispute… Read more »