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Posts Categorized: Contracts

Posted: April 2, 2019

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 »

Posted: 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 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 »

Posted: March 22, 2019

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 »

Posted: March 21, 2019

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 »

Posted: 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 Ninth, LLC, 2019 NY Slip Op. 01505, holding that a lease’s rent credit was an unenforceable penalty, explaining: The trial court correctly determined, giving due consideration to the nature of the contract and the circumstances, that the... Read more »

Posted: March 13, 2019

Attorney Fee Provision Entitling Plaintiff to Fees Equaling One Third of Award Unenforceable

On February 20, 2019, Justice Cohen of the New York County Commercial Division issued a decision in Julius Silvert, Inc. v. Open Kitchen 17, LLC, 2019 NY Slip Op. 30394(U), holding that an attorney fee provision entitling the plaintiff to one third of the award to it for attorneys’ fees was unenforceable, explaining: By contrast, Plaintiffs demand... Read more »

Posted: March 11, 2019

Court Clarifies Rules Regarding Accrual of RMBS “Failure to Notify” Put-Back Claims

On February 15, 2019, Justice Friedman of the New York County Commercial Division issued a decision in HSBC Bank USA, N.A. v. Merrill Lynch Mtge. Lending, Inc., 2019 NY Slip Op. 30358(U), clarifying the rules for the accrual of RMBS failure-to-notify put-back claims, explaining: The court adheres to its holding that accrual of a failure lo... Read more »

Posted: March 6, 2019

Claim Barred by Voluntary Payment Doctrine

On November 8, 2018, Justice Garguilo of the Suffolk County Commercial Division issued a decision in Overbay, LLC v. Berkman, Henoch, Peterson, Peddy & Fenchel, P.C., 2018 NY Slip Op. 51975(U), holding that a claim was barred by the voluntary payment doctrine, explaining: Not just any form of protest is sufficient to overcome the voluntary payment... Read more »

Posted: March 2, 2019

Notice of Lease Renewal Ineffective Because Not Timely Sent

On February 12, 2019, Justice Scarpulla of the New York County Commercial Division issued a decision in Foscarini Inc. v. Greenestreet Leasehold Partnership, 2019 NY Slip Op. 30307(U), holding that a notice to renew a lease was ineffective because it was sent too late, explaining: The basis for virtually all relief sought by Greenestreet on this... Read more »