Posts Categorized: Contracts

Posted: December 27, 2018

E&O Policy May Cover Amounts Employer Was Required to Pay Because of Executive Director’s Negligent Administration of Retirement Accounts

On November 30, 2018, Judge Kahn of the NDNY issued a decision in Young Men’s Christian Ass’n of Plattsburgh v. Philadelphia Indem. Ins. Co., Case No. 18-cv-0565 (KEK/DJS), denying an E&O insurer’s motion to dismiss the insured’s claim for amounts it was required to contribute to employee retirement accounts because of the insured’s negligent failure to withdraw contributions from the employees’ paychecks.... Read more »

Posted: December 24, 2018

Option Unenforceable Due to Unreasonable Delay in Exercising It

On December 12, 2018, the Second Department issued a decision in Breslin v. Frankel, 2018 NY Slip Op. 08456, holding that an option was unenforceable because of an unreasonable delay in exercising it, explaining: An option contract is an agreement, in exchange for consideration, to hold an offer open, thereby conferring upon the optionee the right... Read more »

Posted: December 22, 2018

Court Refuses to Consider Parol Evidence in Interpreting Document Granting Easement

On December 4, 2018, Justice Bransten of the New York County Commercial Division issued a decision in 101 H 216 Lafayette, LLC v. J&G Family L.P., 2018 NY Slip Op. 33107(U), refusing to consider parol evidence in interpreting a document granting an easement, explaining: Express easements are defined by the intent, or object, of the parties.... Read more »

Posted: December 21, 2018

Defendant Ratified Settlement Agreement By Accepting Benefits Despite Failure to Satisfy Express Condition

On December 13, 2018, the First Department issued a decision in GEM Holdco, LLC v. RDX Tech. Corp., 2018 NY Slip Op 08564, holding that a settlement agreement was enforceable, even though a condition of the contract was not satisfied, because the defendant ratified the agreement.  (N.B.  Schlam Stone & Dolan partner Bradley Nash represented... Read more »

Posted: December 20, 2018

Questions of Fact Preclude Summary Judgment on Mutual Mistake Claim

On December 11, 2018, the First Department issued a decision in Securitized Asset Funding 2011-2, Ltd. v. Canadian Imperial Bank of Commerce, 2018 NY Slip Op. 08444, holding that questions of fact precluded summary judgment on a claim for mutual mistake, explaining: [W]e affirm the denial of Cerberus’s motion, because CIBC’s defenses and counterclaims raise... Read more »

Posted: 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 in Perseus Telecorn, LTD. v. Indy Research Labs, LLC, 2018 NY Slip Op. 33083(U), holding that a contract’s liquidated damages clause was an unenforceable penalty, explaining: Moreover, even if, as Perseus alleges, Indy had agreed to the terms of the... Read more »

Posted: 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 in Lam Platt St. Hotel LLC v. Golden Pearl Constr. LLC, 2018 NY Slip Op. 33018(U), enforcing a contract provision limiting damages, explaining: The Contract contains a mutual waiver provision, in Rider 8.0A, which clearly limits the damages Lam Platt... Read more »

Posted: December 7, 2018

Defendants Cannot Avoid Summary Judgment on Contract Claim by Arguing Oral Modification

On November 27, 2018, Justice Bransten of the New York County Commercial Division issued a decision in Schon Family Found. v. Brinkley Capital Ltd., 2018 NY Slip Op. 33027(U), holding that defendants could not avoid summary judgment on a breach of contract claim by arguing that there was an oral modification of the contract, explaining: A... Read more »

Posted: December 4, 2018

Plaintiff Liable to Defendant on Defendant’s Counterclaim Based on Facts Pleaded in the Complaint

On November 26, 2018, Justice Sherwood of the New York County Commercial Division issued a decision in Tongyang, Inc. v. Tong Yang Am., Inc., 2018 NY Slip Op. 32959(U), holding that a plaintiff was liable on the defendant’s counterclaim based on facts pleaded in the Complaint, explaining: TYA’s counterclaim for breach of contract arises out of... Read more »