On June 13, 2019, Justice Platkin of the Albany County Commercial Division issued a decision in Inferno Rest. & Pizzeria, Inc. v. SW Michaels Pizzeria, Inc., 2019 NY Slip Op. 50995(U), holding that a counterclaim was barred by the defendants’ election of remedies, explaining: Waiver is the voluntary and intentional relinquishment of a known right.... Read more »
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Posts Categorized: Contracts
Changing a Draft Contract Proffered by Counterparty Extinguishes Offered Contract and Represents a Counteroffer
On June 13, 2019, the First Department issued a decision in Brown v. Cerberus Capital Mgt., L.P., 2019 NY Slip Op. 04772, holding that changing a draft contract proffered by a counterparty extinguishes the offered contract and only represents a counteroffer, explaining: Contrary to defendants’ contention, Brown did not release her claims. The purported release... Read more »
Apparent Authority Created by Acts of the Principal, Not the Agent
On April 16, 2019, Justice Grays of the Queens County Commercial Division issued a decision in 45-34 Pearson St. LIC, LLC v. Ohana, 2019 NY Slip Op. 31565(U), holding that apparent authority is created by the principal, not the agent, explaining: One who deals with an agent does so at his or her peril, and... Read more »
Court Refused to Void Contract Because of Economic Duress
On June 4, 2019, Justice Sherwood of the New York County Commercial Division issued a decision in Snyder v. JP Morgan Sec. LLC, 2019 NY Slip Op. 31582(U), refusing to void a contract because of economic duress, explaining: In the First Cause of Action, plaintiff seeks to have the Agreement, or at least the release... Read more »
Agreement for a Referral Fee for Sale of Company’s Shares Inapplicable to Sale of Company’s Assets
On May 28, 2910, the First Department issued a decision in Sassoon v. CDx Diagnostics, Inc., 2019 NY Slip Op. 04112, holding that an agreement for a referral fee relating to the sale of a company’s shares did not apply to a sale of the company’s assets, explaining: The written agreement between plaintiff and defendant... Read more »
Court Dismisses Claims, Enforcing No Damages for Delay Clause
On May 23, 2019, the First Department issued a decision in Welsbach Elec. Corp. v. Judlau Contr., Inc., 2019 NY Slip Op. 04037, upholding the dismissal of claims because of a contract’s no damages for delay clause, explaining: The causes of action relating to additional work, delay and acceleration of scheduled work were all properly... Read more »
Statute of Frauds Did Not Bar Claim Based on Alleged Oral Contract for Real Estate Commission
On May 23, 2019, the First Department issued a decision in Elhanani v. Kuzinez, 2019 NY Slip Op. 04042, holding that the Statute of Frauds did not bar a claim based on an alleged oral contract for a real estate commission, explaining: The complaint alleges that plaintiff Eran Elhanani, a real estate broker, and defendant... Read more »
Court Rejects Economic Duress Claim
On May 6, 2019, Justice Masley of the New York County Commercial Division issued a decision in Kaye v. Levine Prospect, LLC, 2019 NY Slip Op. 31299(U), rejecting a economic duress defense, explaining: A contract is voidable on the ground of duress when it is established that the party making the claim was forced to agree... Read more »
Disclaimers Protect Publisher From Liability for Alleged Inaccuracies in Treatise
On May 2, 2019, the First Department issued a decision in Himmelstein, McConnell, Gribben, Donoghue & Joseph, LLP v. Matthew Bender & Co., Inc., 2019 NY Slip Op. 03442, holding that a publisher’s disclaimer protected it from claims based on alleged inaccuracies in a treatise, explaining: The breach of express warranty claim, based on the representations... Read more »
Fraud in the Inducement Claim Not Duplicative of Breach of Contract Claim
On May 1, 2019, the Second Department issued a decision in 260 Mamaroneck Ave., LLC v. Guaraglia, 2019 NY Slip Op. 03307, holding that a fraudulent inducement claim was not duplicative of a breach of contract claim, explaining: The plaintiff alleged, inter alia, that the defendant falsely represented in the contract of sale that he had... Read more »