Commercial Division Blog: Current Developments in the Commercial Divisions of the New York State Courts

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November 30, 2022 Court Resolved Contractual Ambiguity and Awarded Damages to Give Plaintiff Benefit of the Bargain
In a Decision and Order, dated August 22, 2022, in 57th & 60th St. Lender LLC v. State Bank of Tex., Index No. 654007/2018, Justice Jennifer Schecter of the New York County Commercial Division found the phrase “repaid in full” in a mortgage loan sale agreement to be ambiguous and, after holding a bench trial, resolved that ambiguity in favor of plaintiff and awarded damages in the amount plaintiff would have recovered on the loans had the agreement not been breached plus interest and attorneys’ fees. The Court explained: Read More
March 2, 2022 Exclusivity Fee in Term Sheet Constituted Liquidated Damages Provision and Barred Further Recovery Written by: Christopher R. Dyess, Hillary S. Zilz, Joshua Wurtzel, Jeffrey M. Eilender, Samuel L. Butt
In a Decision and Order dated February 9, 2022, in Parkmerced Invs. v. WeWork Cos. LLC, Index No. 652094/2020, Justice Andrea Masley granted defendant WeWork’s motion to dismiss. Plaintiff alleged breach of contract, breach of the covenant and good faith and fair dealing, and promissory estoppel arising out a redevelopment in San Francisco with respect to which plaintiff and WeWork had signed a non-binding term sheet containing the material terms of WeWork’s investment in the project, including an exclusivity clause and a $20 million exclusivity fee. Ultimately, WeWork did not participate in the redevelopment project. In granting dismissal, Justice Masley read the exclusivity fee as a liquidated damages provision. Read More
December 29, 2021 Second Department Distinguishes Treatment of Claims and Damages against Insurance Company in Breach of Duty to Defend Case
On November 17, 2021, in East Ramapo Cent. Sch. Dist. v New York Schs. Ins. Reciprocal, 2021 NY Slip Op 0634, the Second Department reversed the decision of Justice Stephen A. Bucaria that dismissed a claim arising from an insurer’s bad-faith denial of coverage and reduced by 65% damages relating to a breach of the duty to defend. The Court explained that in the context of insurance liability litigation, at the pretrial stage courts are reluctant to dismiss complaints alleging bad faith and damages for breach of the duty to defend, unlike in a fee shifting case, are presumed reasonable: Read More
July 1, 2021 Breach of Fiduciary Duty Claim Dismissed for Lack of Damages
On June 24, 2021, the First Department issued a decision in Besen v. Farhadian, 2021 NY Slip Op. 040… Read More
June 15, 2021 Liquidated Damages Provision Based on Notice of Intention to Redevelop Property Not Enforceable When Tenancy Not Terminated
On May 25, 2021, Justice Borrok of the New York County Commercial Division issued a decision in Prad… Read More
May 2, 2021 Breach of Contract Claim Dismissed for Failure to Allege Damages
On April 29, 2021, the First Department issued a decision in AmBase Corp. v. 111 W. 57th Sponsor LLC… Read More
April 21, 2021 Remedy for Prohibited Transfer is Voiding Transfer, Not Money Damages
On April 1, 2021, Justice Cohen of the New York County Commercial Division issued a decision in JDS … Read More
April 10, 2021 Expert Report and Damages Theory Excluded Because Defendant Was Not on Notice of Damages Theory
On March 30, 2021, the First Department issued a decision in Advanced Aerofoil Tech. AG v. MissionPo… Read More
April 7, 2021 Claim Related to Hacking of Client Data Dismissed for Lack of Damages
On March 30, 2021, Justice Platkin of the Albany County Commercial Division issued a decision in Kea… Read More
February 25, 2021 Plaintiffs Cannot Avoid Application of Liquidated Damages Clause
On February 8, 2021, Justice Sherwood of the New York County Commercial Division issued a decision i… Read More
December 30, 2020 Gross Negligence Claims Cannot Overcome Sole Remedy Clause
On December 22, 2020, the Court of Appeals issued a decision in Matter of Part 60 Put-Back Litig., 2… Read More
December 17, 2020 Court Rejects Effort to Avoid Pre-Judgment Interest
On December 2, 2020, Justice Cohen of the New York County Commercial Division issued a decision in F… Read More
December 4, 2020 Liquidated Damages Clause Found to be Unenforceable Penalty
On November 24, 2020, the Court of Appeals issued a decision in Trustees of Columbia Univ. in the Ci… Read More
December 2, 2020 Lost Profits Damages Not Available for New Business
On November 17, 2020, Justice Cohen of the New York County Commercial Division issued a decision in … Read More
July 20, 2020 Court Upholds Fraud Claim Based on Damages Resulting From Selling at a Fraudulently-Induced Deflated Price
On June 29, 2020, Justice Masley of the New York County Commercial Division issued a decision in Com… Read More
May 29, 2020 Liquidated Damages Provision Eliminates Need for Plaintiff to Mitigate Damages
On April 24, 2020, Justice Scarpulla of the New York County Commercial Division issued a decision in… Read More
April 7, 2020 Court Upholds Claim Seeking Constructive Trust
On April 2, 2020, the First Department issued a decision in Homapour v. Harounian, 2020 NY Slip Op. … Read More
February 1, 2020 Provision Limiting Liability for Breach of Contract Enforceable
On January 29, 2020, the Second Department issued a decision in Astoria Generating Co., LP v. Riley … Read More
November 29, 2019 Alleged Poor Administration or Planning Insufficient to Bar Defendant's Reliance on No Damages for Delay Clause
On November 19, 2019, the First Department issued a decision in WDF Inc. v Turner Constr. Co., 2019 … Read More
November 10, 2019 Constructive Trust Upheld
On October 30, 2019, the Second Department issued a decision in Galasso, Langione & Botter, LLP … Read More
October 28, 2019 Court Dismisses Claim for Lost Profits Damages
On October 9, 2019, Justice Sherwood of the New York County Commercial Division issued a decision in… Read More
October 19, 2019 Commercial Reasonableness of Creditor's Auction Disposing of Collateral Created Issue of Fact Regarding Damages
On October 4, 2019, Justice Schecter of the New York County Commercial Division issued a decision in… Read More
October 16, 2019 Court Erred in Awarding Damages That Were Not Proved or Requested
On October 8, 2019, the First Department issued a decision in Pastreich v. Pastreich, 2019 NY Slip O… Read More
September 19, 2019 First Department Approves Sampling in RMBS Actions
On September 17, 2019, the First Department issued a decision in Home Equity Mtge. Trust Series 2006… Read More
September 10, 2019 Placing Disputed Funds in Escrow Did Not Stop Liability for Post-Judgment Interest
On September 10, 2019, the First Department issued a decision in Triadou SPV S.A. v. CF 135 Flat LLC… Read More
September 2, 2019 Where Contract Has Choice of Law Provision, Substantive Law of Chosen Jurisdiction Controls Award of Prejudgment Interest
On August 21, 2019, Justice Scarpulla of the New York County Commercial Division issued a decision i… Read More
March 29, 2019 Questions of Fact Preclude Dismissal of Gross Negligence Claim
On March 12, 2019, the First Department issued a decision in S.A. De Obras y Servicios, COPASA v. B… Read More
March 25, 2019 Once Claim on Principal is Time-Barred, Suit to Recover Post-Maturity Interest on Principal is Time-Barred as Well
On March 21, 2019, the Court of Appeals issued a decision in Ajdler v. Province of Mendoza, 2019 NY … Read More
March 15, 2019 Lease's Rent Credit Provision Unenforceable Penalty
On February 28, 2019, the First Department issued a decision in Free People of PA LLC v. Delshah 60… Read More
February 17, 2019 Fraud Claim Dismissed for Failure to Show Out-of-Pocket Damages
On February 8, 2019, the Fourth Department issued a decision in Southwestern Invs. Group, LLC v. JH … Read More
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 Ci… Read More
February 2, 2019 Second Department Affirms Jury's Lost Profits Damage Award
On January 23, 2019, the Second Department issued a decision in East Hampton Union Free Sch. Dist. … Read More
December 17, 2018 Contract's Liquidated Damages Clause Held to be an Unenforceable Penalty
On November 30, 2018, Justice Bransten of the New York County Commercial Division issued a decision … Read More
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… Read More
November 15, 2018 Award of Lost Profits Upheld
On November 9, 2018, the Fourth Department issued a decision in Henderson Harbor Mariners' Mar., In… Read More
October 1, 2018 Breach of Contract Claim Properly Dismissed for Lack of Evidence of Damages
On September 27, 2018, the First Department issued a decision in FranPearl Equities Corp. v. 24 W. 2… Read More
July 24, 2018 Breach of Fiduciary Duty Claim Dismissed on Summary Judgment for Lack of Damages
On July 10, 2018, Justice Schecter of the New York County Commercial Division issued a decision in B… Read More
June 1, 2018 Rejecting Official Exchange Rate, Court Finds That There is a Question of Fact Regarding Proper Exchange Rate Between Venezuelan Bolivars and US Dollars
On May 29, 2018, Justice Crane of the New York County Supreme Court issued a decision in Diaz v. Gal… Read More
February 18, 2018 Damages Award Thrown Out Because of Failure to Provide Competent, Non-Hearsay Evidence of Damages
On February 8, 2018, the First Department issued a decision in 345 E. 69th St. Owners Corp. v, Plati… Read More
January 31, 2018 Claims Barred Above Amount Set by Limitation of Liability Provision
On January 23, 2018, the First Department issued a decision in Electron Trading, LLC v. Morgan Stanl… Read More
August 31, 2017 Plaintiff Cannot Get Attorneys’ Fees Under CPLR 3220 Unless Action Goes to Trial
On August 30, 2017, the Second Department issued a decision in Saul v. Cahan, 2017 NY Slip Op. 06391… Read More
August 10, 2017 Lost Profits Found to be Recoverable as General, Not Consequential, Damages
On August 3, 2017, Justice Kornreich of the New York County Commercial Division issued a decision in… Read More
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., … Read More
January 11, 2017 Court May Grant Any Relief, Demanded or not, Within its Jurisdiction Appropriate to the Proof
On January 10, 2017, the First Department issued a decision in A&F Hamilton Heights Cluster, Inc. v… Read More
November 5, 2016 Court Upholds Liquidated Damages Clause
On October 26, 2016, the Second Department issued a decision in Markham Gardens, L.P. v. 511 9th, LL… Read More
July 16, 2016 Court Should Have Valued Shares at Time They Should Have Been Transferred
On July 5, 2016, the First Department issued a decision in Moore v. IGPS Co. LLC, 2016 NY Slip Op. 0… Read More
June 7, 2016 Supreme Court Lacked Jurisdiction to Award Statutory Interest in Action it Had Dismissed
On June 2, 2016, the Court of Appeals issued a decision in CRP/Extell Parcel I, L.P. v. Cuomo, 2016 … Read More
March 23, 2016 Delivery of Non-Conforming Goods Creates UCC Cause of Action
On March 15, 2016, the First Department issued a decision in BMW Group, LLC v. Castle Oil Corp., 201… Read More
January 20, 2016 Lost Profits Damages Awarded On Contract Claim Because They Were Contemplated by the Parties
On January 13, 2016, the Second Department issued a decision in Inspectronic Corp. v. Gottlieb Skans… Read More
November 29, 2015 First Department Upholds Contract Provision Limiting Damages
On November 19, 2015, the First Department issued a decision in MG Hotel, LLC v. Bovis Lend Lease, L… Read More
November 13, 2015 Prior Criminal Restitution Payments Do Not Prohibit Claim in a Civil Action
On November 5, 2015, the First Department issued a decision in Marion Blumenthal Trust v. Arbor Comm… Read More
November 12, 2015 Consequential Damages Not Allowed When Not Foreseeable and Contemplated by Parties
On November 10, 2015, the First Department issued a decision in ERC 16W L.P. v. Xanadu Mezz Holdings… Read More
November 3, 2015 Pre-Judgment Interest on Unpaid Demand Note Due From Date of Demand
On October 29, 2015, the First Department issued a decision in Gliklad v. Cherney, 2015 NY Slip Op. … Read More
October 1, 2015 Damages Awarded on Default Judgment Slashed by Second Department
On September 30, 2015, the Second Department issued a decision in Vested Business Brokers, Ltd. v. R… Read More
September 20, 2015 Contractor Entitled to Amount Due for Work Completed Plus Lost Profits on Uncompleted Work
On August 21, 2015, Justice Pines of the Suffolk County Commercial Division issued a decision in Oce… Read More
August 30, 2015 Court Rejects Referee's Recommended Award of Punitive Damages
On August 20, 2015, Justice Kornreich of the New York County Commercial Division issued a decision i… Read More
August 28, 2015 Absence of Damages Fatal of Breach of Contract Claim
On August 21, 2015, Justice Kornreich of the New York County Commercial Division issued a decision i… Read More
August 26, 2015 Damages for Breach of "Agreement to Agree" Limited to Out-of-Pocket Expenses
On August 17, 2015, Justice Kornreich of the New York County Commercial Division issued a decision i… Read More
August 10, 2015 Prohibition on Delay Damages Enforced Absent Bad Faith, Willful Misconduct or Gross Negligence
On July 30, 2015, the Third Department issued a decision in Tougher Industries, Inc. v. Dormitory Au… Read More
August 7, 2015 Fraud Claim Dismissed Because Claimed Damages Violated Out-of-Pocket Rule
On July 24, 2015, Justice Scarpulla of the New York County Commercial Division issued a decision in … Read More
March 14, 2015 Court Analyzes Damages For Which Enjoined Party May Recover
On February 27, 2015, Justice Demarest of the Kings County Commercial Division issued a decision in … Read More
February 28, 2015 First Department Examines Standard for Award of Punitive Damages
On February 26, 2015, the First Department issued a decision in Macy's Inc. v. Martha Stewart Living… Read More
February 24, 2015 Breach of Contract Plaintiff Not Entitled to Lost Profits
On February 18, 2015, the Second Department issued a decision in Todd Rotwein, D.P.M., P.C. v. Nader… Read More
February 5, 2015 Damages in Derivative Action Must go to Corporation, Not Plaintiff
On January 28, 2015, the Second Department issued a decision in Sakow v. Waldman, 2015 NY Slip Op. 0… Read More
January 29, 2015 First Department Affirms Injunction Pending Arbitration Based, In Part, On Agreement Limiting Damages
On January 22, 2015, the First Department issued a decision in Matter of Rockwood Pigments NA, Inc. … Read More
January 20, 2015 Consequential Damages Claim Dismissed Because Such Damages Not Contemplated at Time of Contracting
On January 14, 2015, Justice Friedman of the New York County Commercial Division issued a decision i… Read More
January 12, 2015 Expert Opinion Without Basis in Evidence Cannot Serve as Basis for Damage Award
On January 8, 2015, the Third Department issued a decision in Latham Land I LLC v. TGI Friday's Inc.… Read More
December 19, 2014 Lease Acceleration Clause Not Per Se Unenforceable as Penalty
On December 18, 2014, the Court of Appeals issued a decision in 172 Van Duzer Realty Corp. v. Globe … Read More
October 15, 2014 Economic Loss Rule Precludes Tort Claims For Purely Economic Losses Arising From Defective Product
On October 1, 2014, the Second Department issued a decision in 126 Newton St., LLC v. Allbrand Comme… Read More
July 15, 2014 Consequential Damages Not Available When Not Contemplated at the Time of Contracting
On July 2, 2014, Justice Schweitzer of the New York County Commercial Division issued a decision in … Read More
July 12, 2014 Claims Dismissed for Failure to Present Evidence of Proximate Causation
On June 30, 2014, Justice Sherwood of the New York County Commercial Division issued a decision in M… Read More
June 29, 2014 Breach of Contract Claim Survives Because Nominal Damages Satisfy Damages Element of Claim
On June 19, 2014, Justice Schweitzer of the New York County Commercial Division issued a decision in… Read More
June 25, 2014 Available Damages Against Sponsor of Mortgage-Backed Securities Trust Limited By "Sole Remedies" Provision in Governing Documents
On May 29, 2014, Justice Bransten of the New York County Commercial Division issued a decision in … Read More
June 23, 2014 Theories of Damages in the Macy’s v. J.C. Penney Litigation
On June 16, 2014, Justice Oing of the New York County Commercial Division issued a decision in Macy'… Read More
May 11, 2014 Contractually-Provided Damages Not Enforceable if They are Mere Penalties
On April 11, 2014, Justice Sherwood of the New York County Commercial Division issued a decision in … Read More
March 31, 2014 Summary Judgment Granted in Favor of Veil-Piercing Claim
On March 19, 2014, Justice Friedman of the New York County Commercial Division issued a decision in … Read More
March 28, 2014 Defendant Whose CPLR 3220 Offer Was Rejected is Entitled to Her Attorneys' Fees Related to Proving Damages From Time of Offer
On March 27, 2014, the First Department issued a decision in Abreu v. Barkin & Associates Realt… Read More
March 16, 2014 Recent Decision Illustrates Rules for Computation of Pre-Judgment Interest
On March 6, 2014, Justice Friedman of the New York County Commercial Division issued a decision in N… Read More
February 7, 2014 Defendants Succeed in Limiting Most of the Categories of Damages in Lawsuit; Punitive Damages Claim Survives
On January 23, 2014, Justice Marks of the New York County Commercial Division issued a decision in J… Read More
February 6, 2014 Motion to Dismiss May be Used to Limit Damages Theories Even if Claims Survive
On February 5, 2014, the Second Department issued a decision in Hecht v. Andover Associates Manageme… Read More
February 5, 2014 Fact Witness Not Allowed to Channel Expert's Opinion
On January 22, 2014, Justice Ramos of the New York County Commercial Division issued a decision in W… Read More
January 20, 2014 Plaintiff Barred from Recovering Damages Excluded by Contract
On January 15, 2014, Justice Bransten of the New York County Commercial Division issued a decision i… Read More
January 17, 2014 Lost Profits Damages Not Available on Fraudulent Inducement Claim
On January 6, 2014, Justice Bransten of the New York County Commercial Division issued a decision in… Read More
January 2, 2014 Decision Explores the Distinction Between Transaction Causation and Loss Causation
On December 24, 2013, Justice Kornreich of the New York County Commercial Division issued a decision… Read More
November 18, 2013 Gross Negligence Claim Dismissed Based on Business Judgment Rule and Lack of Damages
On November 12, 2013, Justice Bransten of the New York County Commercial Division issued a decision … Read More