On March 27, 2019, Justice Masley of the New York County Commercial Division issued a decision in Mountain & Isles, LLC v. Gillz, LLC, 2019 NY Slip Op. 30872(U), holding that a contract with a specific term could not be renewed by a course of conduct, explaining: The breach of contract claim against Gillz for improperly... Read more »
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Posts Categorized: Contracts
Anticipatory Repudiation Claim Dismissed For Failure Unequivocally to Allege a Refusal Further to Perform
On April 2, 2019, Justice Scarpulla of the New York County Commercial Division issued a decision in Richman v. Reese, 2019 NY Slip Op. 30908(U), dismissing an anticipatory repudiation claim for failure unequivocally to allege a refusal further to perform the contract, explaining: To plead a cause of action for anticipatory repudiation, the complaint must allege... Read more »
Contra Proferentem Doctrine Does Not Apply When Contract is Unambiguous and the Parties are Sophisticated
On April 2, 2019, the First Department issued a decision in Churchill Real Estate Holdings LLC v. CBCS Wash. St. LP, 2019 NY Slip Op. 02472, rejecting the application of the contra proferentem doctrine, explaining: Contrary to defendants’ contention, the doctrine of contra proferentem is inapplicable here, because the language of the agreement is unambiguous, and... Read more »
Oral Agreement to Sell Securities Enforceable Even if it Cannot Be Performed Within a Year
On March 19, 2019, Justice Sherwood of the New York County Commercial Division issued a decision in Hill v. Full 360 Inc., 2019 NY Slip Op. 30718(U), holding that an oral agreement to sell securities was enforceable even if it could not be performed within a year, explaining: Defendants’ statute of frauds argument lacks merit. In... Read more »
Statute of Frauds Bars Claim for Fee in Connection with Finding a Business Opportunity
On March 27, 2019, the Second Department issued a decision in Best Global Alternative, Ltd. v. FCIC Constr. Servs., Inc., 2019 NY Slip Op. 02308, holding that the Statute of Frauds barred a claim for a fee in connection with finding a business opportunity, explaining: Pursuant to General Obligations Law § 5-701(a)(10), an agreement or some... Read more »
Note That Contained Conditions on Payment Cannot Be Subject of Motion for Summary Judgment in Lieu of Complaint
On March 18, 2019, Justice Masley of the New York County Commercial Division issued a decision in Borremans v. Gardner, 2019 NY Slip Op. 30660(U), holding that a promissory note that contined conditions could not be the subject of a motion for summary judgment in lieu of complaint, explaining: For purposes of CPLR 3213, an instrument... Read more »
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. Bank of Nova Scotia, 2019 NY Slip Op. 01706, holding that questions of fact precluded the dismissal of a gross negligence claim, explaining: The parties’ March 2010 engagement letter provided that Scotia would be paid only if COPASA... Read more »
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 Slip Op. 02151, holding that once a claim on a bond’s principal is time-barred, a claim for post-maturity interest on that principal is time-barred as well, explaining: Plaintiff maintains that the logical extension of our holding... Read more »
Judicial Estoppel Bars Defendant From Taking Factual Position Different From That Taken in Earlier Actions or Proceedings
On February 28, 2019, Justice Platkin of the Albany County Commercial Division issued a decision in Whiteman Osterman & Hanna, LLP v. Preserve Assoc., LLC, 2019 NY Slip Op. 29056, holding that judicial estoppel barred a defendant from taking factual position different from that taken in earlier actions or proceedings, explaining: An estoppel rests upon the... Read more »
Contract Claim Dismissed for Lack of Damages
On February 27, 2019, Justice Sherwood of the New York County Commercial Division issued a decision in Neumann v. Sotheby’s Inc., 2019 NY Slip Op. 30508(U), dismissing a breach of contract claim for lack of damages, explaining: To sustain a breach of contract cause of action, plaintiff must show: (1) an agreement; (2) plaintiff’s performance;... Read more »