Monthly Archives: February 2019

Posted: February 6, 2019

Partnership Not Entitled to Recover Fees from Derivative Action Plaintiff When Security for Fees Not Posted

On January 31, 2019, the First Department issued a decision in NWM Capital, LLC v. Scharfman, 2019 NY Slip Op. 00674, holding that where a derivative action plaintiff had not posted security pursuant to Partnership Law § 121-1003, the plaintiff could not subsequently be required to pay the partnership’s attorneys’ fees, explaining: The court properly... Read more »

Posted: February 5, 2019

Liquidated Damages Clause Found to be Unenforceable Penalty

On January 29, 2019, the First Department issued a decision in Trustees of Columbia Univ. in the City of N.Y. v. D’Agostino Supermarkets, Inc., 2019 NY Slip Op. 00551, holding a liquidated damages clause to be an unenforceable penalty, explaining: We find that the damages at the time of the Surrender Agreement were ascertainable. Columbia’s attempt... Read more »

Posted: February 4, 2019

Insurance Broker Liable for Negligence in Preparing Application

On January 25, 2019, Justice Bucaria of the Nassau County Commercial Division issued a decision in Dorchester, L.L.C. v. Herzka Ins. Agency, Inc., 2019 NY Slip Op. 30177(U), holding an insurance broker liable for negligence in preparing an insurance application, explaining: An insurance broker may be held liable under theories of negligence or breach of contract... Read more »

Posted: February 3, 2019

Upcoming Arguments in the Court of Appeals in February 2019

Upcoming argument in the Court of Appeals in February 2019 that may be of interest to commercial litigators: Ajdler v Province of Mendoza, CTQ-2018-00001 (to be argued Tuesday, February 14, 2019) (“Limitation of Actions—Six-Year Statute of Limitations—Whether four-year prescriptive period set forth in indenture for bonds, rather than six-year statute of limitations generally applicable to... Read more »

Posted: February 1, 2019

Complaint Found to State Aiding and Abetting Fraud Claim Against Law Firm

On January 24, 2019, the First Department issued a decision in Gansett One, LLC v. Husch Blackwell, LLP, 2019 NY Slip Op. 00531, holding that a plaintiff had stated a claim for aiding and abetting fraud against a law firm, explaining: The complaint states a claim for aiding and abetting fraud. Contrary to defendants’ contention, the... Read more »