Blogs

Monthly Archives: December 2018

Posted: December 11, 2018

Court Enforces Contract Clause Limiting Damages

On November 29, 2018, Justice Scarpulla of the New York County Commercial Division issued a decision in Lam Platt St. Hotel LLC v. Golden Pearl Constr. LLC, 2018 NY Slip Op. 33018(U), enforcing a contract provision limiting damages, explaining: The Contract contains a mutual waiver provision, in Rider 8.0A, which clearly limits the damages Lam Platt... Read more »

Posted: December 10, 2018

Doctrine of Respondeat Superior Imposes Liability on Employer, Not Supervisor

On November 28, 2018, Justice Bransten of the New York County Commercial Division issued a decision in Domus Arbiter Realty Corp. v. Bayrock Group LLC, 2018 NY Slip Op. 33021(U), holding that the doctrine of respondeat superior imposes liability on the employer, not the supervisor, explaining: Plaintiff has alleged, however, an alternative theory that Defendant McGorty... Read more »

Posted: December 9, 2018

Fraud Claim Dismissed Because Plaintiff’s Alleged Reliance Was Not Reasonable

On November 28, 2018, Justice Schecter of the New York County Commercial Division issued a decision in Tall Tower Capital LLC v. Stonepeak Partners, LP, 2018 NY Slip Op. 33024(U), dismissing a fraud claim because the plaintiff’s alleged reliance was not reasonable, explaining: To allege a cause of action based on fraud, plaintiff must assert a... Read more »

Posted: December 8, 2018

Court Refuses to Vacate Arbitral Award for Arbitrator Bias

On November 28, 2018, Justice Masley of the New York County Commercial Division issued a decision in Matter of Sayre v. Madison Hawk Partner, LLC, 2018 NY Slip Op. 33030(U), refusing to vacate an arbitral award for arbitrator bias, explaining: As an initial matter, petitioners’ communication was not improper. Paragraph 19 of the Operating Agreement... Read more »

Posted: December 7, 2018

Defendants Cannot Avoid Summary Judgment on Contract Claim by Arguing Oral Modification

On November 27, 2018, Justice Bransten of the New York County Commercial Division issued a decision in Schon Family Found. v. Brinkley Capital Ltd., 2018 NY Slip Op. 33027(U), holding that defendants could not avoid summary judgment on a breach of contract claim by arguing that there was an oral modification of the contract, explaining: A... Read more »

Posted: December 5, 2018

Mere Theory as to the Board’s Misconduct Insufficient to Plead Demand Futility With Particularity

On November 15, 2018, Justice Ramos of the New York County Commercial Division issued a decision in Shields v. Murstein, 2018 NY Slip Op. 32964(U), holding that a “mere theory as to the Board’s misconduct is insufficient to meet” the demand particularity requirements for a derivative action under Delaware law, explaining: In a final attempt... Read more »

Posted: December 4, 2018

Plaintiff Liable to Defendant on Defendant’s Counterclaim Based on Facts Pleaded in the Complaint

On November 26, 2018, Justice Sherwood of the New York County Commercial Division issued a decision in Tongyang, Inc. v. Tong Yang Am., Inc., 2018 NY Slip Op. 32959(U), holding that a plaintiff was liable on the defendant’s counterclaim based on facts pleaded in the Complaint, explaining: TYA’s counterclaim for breach of contract arises out of... Read more »

Posted: December 3, 2018

Opportunity to Comment on Proposed Change to Commercial Division Rules

The Office of Court Administration has asked for public comment on a proposed rule “[e]nhanc[ing] attorney certification concerning mediation in the Commercial Division.” “[T]he proposal would require that the OCA” develop and implement a “form contain[ing] categories of information about the case prescribed by the Office of Court Administration which may assist the court, counsel... Read more »

Posted: December 2, 2018

Labor Law Provision Allowing Employees to Sue General Contractor as Third-Party Beneficiaries Trumps Contract’s No Third-Party Beneficiary Clause

On November 27, 2018, the First Department issued a decision in Wroble v. Shaw Envtl. & Infrastructure Eng’g of N.Y., P.C., 2018 NY Slip Op. 08061, holding that the Labor Law provision allowing employees to sue a general contractor as third-party beneficiaries trumps a contract’s no third-party beneficiary clause, explaining: Labor Law § 220(3) provides, in pertinent... Read more »