Posts Categorized: Contracts

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 »

Posted: February 26, 2019

Employment Contract Term Waiving Claims for Workplace Injuries Unenforceable in New Jersey

On December 11, 2017, the New Jersey Supreme Court issued a decision in Vitale v. Schering-Plough Corporation, No. 078294, holding that a pre-accident agreement disclaiming liability was unenforceable, explaining: In section 39, the Legislature declared a public policy regarding certain agreements entered into in advance of a workplace accident: No agreement, composition, or release of... Read more »

Posted: February 26, 2019

Dissolved Corporation Can Bring Claim as Part of its Winding Up

On February 8, 2019, Justice Borrok of the New York County Commercial Division issued a decision in A&B Deli Inc. v. 251 Sixth Ave., LLC, 2019 NY Slip Op. 30289(U), holding that a dissolved corporation could bring a claim as part of its winding up, explaining: The Defendant argues that the action must be dismissed... Read more »

Posted: February 24, 2019

Lack of Consideration Defense Even to Unconditional Guaranty

On February 19, 2019, the First Department issued a decision in Moon 170 Mercer, Inc. v. Vella, 2019 NY Slip Op. 01187, holding that lack of consideration is a defense even to an unconditional guaranty, explaining: Based on the reinstatement of the wrongful eviction claim asserted by the nonparty tenant against respondent landlord Moon 170 Mercer, Inc.... Read more »

Posted: February 23, 2019

Employer Failed to Justify Injunction Enforcing Restrictive Covenant With Former Employee

On February 7, 2019, the First Department issued a decision in Harris v. Patients Med., P.C., 2019 NY Slip Op. 00974, holding that an employer had failed to justify an injunction enforcing a restrictive covenant with a former employee, explaining: A preliminary injunction is an extraordinary provisional remedy which will only issue where the proponent demonstrates... Read more »

Posted: February 22, 2019

RMBS Trustee’s Failure to Give With Notice to Cure Within Limitations Period Does Not Bar Trustee from Curing Failure and Refiling Suit

On February 19, 2019, the Court of Appeals issued a decision in U.S. Bank Natl. Assn. v. DLJ Mtge. Capital, Inc., 2019 NY Slip Op. 01169, holding that an RMBS “[t]rustee’s failure to comply with the notice and cure or repurchase condition precedent within the applicable statute of limitations does not foreclose refiling of its... Read more »