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Posts Categorized: Contracts

Posted: October 8, 2021

Settlement Agreement Providing that Trustees to Distribute Shares as if “Subsequent Recovery” Ignored as “Gap Filler”

On August 19, 2021, in Matter of Wells Fargo Bank v Aegon USA Inv. Mgt., LLC, 2021 NY Slip Op 04740, the First Department issued a decision holding, inter alia, that even though the settlement agreement set forth the means for calculating and distributing the allocable share to each of the settlement trusts, the trustees... Read more »

Posted: October 6, 2021

Summary Judgment for Breach of Contract Denied Where Plaintiff Failed to Show it Satisfied Contractual Condition Precedents to Terminate for Cause

On August 25, 2021, in Turner Towers Tenant Corp. v RCI Plumbing Corp., 2021 NY Slip Op 04774, the Second Department affirmed denial of plaintiff’s motion for summary judgment for breach of contract because plaintiff failed to demonstrate that it had satisifed contractual condition precedent for termination for cause, explaining: RCI failed to establish its... Read more »

Posted: September 24, 2021

Claim for Tortious Interference With Business Relations Fails Because Defendant Acted In Self Interest

On July 28, 2021, the Second Department issued a decision in Stuart’s LLC v. Edelman, 2021 N.Y. Slip Op. 04569, holding that the trial court erred in holding the defendant liable for tortious interference with business relations when the evidence at trial showed that the defendant’s conduct was motivated by self interest, explaining: “To prevail on... Read more »

Posted: September 17, 2021

No-Action Provisions Did Not Mandate Dismissal Of Plaintiffs’ Claims

On August 16, 2021, Justice Joel M. Cohen issued a decision in Audax Credit Opportunities Offshore Ltd. v TMK Hawk Parent, Corp., 2021 NY Slip Op 50794(U), holding that No-Action provisions did not mandate dismissal of Plaintiffs’ claims.  The Court concluded: [N]o-action clauses typically are “not unenforceable as violative of public policy, given [their] salutary... Read more »

Posted: September 15, 2021

Guaranties For Payment And Performance Are Not Instruments For Payment Of Money Only And Therefore Do Not Provide A Basis For Summary Judgment In Lieu of Complaint Under CPLR § 3213

On September 3, 2021, in Bank of America, N.A. v. Filho et al., N.Y. Sup. Ct. Index No. 654603/2019, Justice Andrea Masley issued a Decision and Order granting the motion of certain defendants (“Guarantors”) to reargue and renew pursuant to CPLR 2221 and, upon reargument and renewal, denying Plaintiff’s motion for summary judgment in lieu... Read more »

Posted: September 13, 2021

Courts Will Not Imply a Contract When There Is an Express Written Agreement

On August 24, 2021, Justice Ostrager of the New York Commercial Division issued a decision in Tri-City ValleyCats, Inc. v. Houston Astros, Inc., 2021 NY Slip Op 50802(U), holding that while “New York law recognizes the concept of a binding agreement implied from the parties’ words and conduct”, none will be “implied in fact where... Read more »

Posted: August 25, 2021

Owners of Residential Units in Luxury Condominium Were Third-Party Beneficiaries of Clause in Ground Lease Concerning Quality of Hotel To Be Operated on Lower Floors of Building

On August 5, 2021, the First Department issued a decision in Residential Board of Millennium Point v. Condominium Board of Millennium Point, 2021 NY Slip Op 04649, holding that owners of residential units in a condominium were intended third-party beneficiaries of a ground lease between Hugh L. Carey Battery Park City Authority as landlord and... Read more »

Posted: August 23, 2021

Under Principle of Ejusdem Generis, Use of “Any and All” In Contract Clause Before List of Specific Activities Does Not Expand Clause Beyond Activities Specified

On July 30, 2021, Justice Ostrager of the New York County Commercial Division issued a decision in Levy v. Zimmerman, 2021 NY Slip Op 50738(U), holding that the use of the words “any and all income” in a contract preceding a list of specified activities the income from which plaintiff was entitled to a percentage... Read more »

Posted: August 18, 2021

A Creditor is Only Entitled to Recover Past Due Installments on Defaulted Note Absent an Acceleration Clause

On July 9, 2021, the Fourth Department issued a decision in Estate of Kathryn Essig v. Essig, 2021 NY Slip Op. 04301, holding that absent an acceleration clause providing for the entire amount of a note due upon default, in general a creditor is only entitled to recover the past due installments, explaining: We agree... Read more »

Posted: August 12, 2021

Financial Difficulties Due to COVID-19 Pandemic No Excuse for Failure to Pay Pursuant to Settlement Agreement

On June 9, 2020, Justice Schecter of the New York County Commercial Division issued a decision in Maesa LLC v. TPR Holdings LLC, 2020 NY Slip Op 34523, holding that the COVID-19 pandemic did not excuse a party’s performance under a settlement agreement, explaining: There is no question of fact that defendant breached the settlement... Read more »