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Posts Categorized: Contracts

Posted: January 6, 2014

Implied Commercial Contract Found to Exist, Preventing Termination Except by Terms of Original Contract

On December 20, 2013, Justice Walker of the 8th Judicial District Commercial Division issued a decision in Western N.Y. Immediate Med. Care, PLLC v. Healthnow N.Y., Inc., 2013 NY Slip Op. 52252(U), addressing a claim for breach of an implied contract. In Western N.Y. Immediate Med. Care, plaintiff entered into a contract to be a participating provider... Read more »

Posted: January 5, 2014

Lack of Strict Compliance With Commercial Notice Provisions Can Be Excused Absent Prejudice

On December 23, 2013, Justice Kapnick of the New York County Commercial Division issued a decision in TLI Inv., LLC v. C-III Asset Mgt. LLC, 2013 NY Slip Op. 33328(U), addressing–among other things–the effect of a technical failure to comply with a commercial contract’s notice provisions. In TLI Inv., the plaintiff shareholder claimed that it... Read more »

Posted: December 30, 2013

Unambiguous Commercial Contract Enforced As Written Despite Burden

On December 26, 2013, the Second Department issued a decision in Obstfeld v. Thermo Niton Analyzers, LLC, 2013 NY Slip Op. 08601, reaffirming the rule that unambiguous commercial contracts will be enforced as written, even if it results in possible unfairness to one of the parties. In Obstfeld, plaintiff contracted in December 2001 to provide investment banking services to... Read more »

Posted: December 29, 2013

Seller Cannot Unilaterally Make Time of the Essence

On December 26, 2013, the Second Department issued a decision in Revital Realty Group, LLC v. Ulano Corp., 2013 NY Slip Op. 08607, illustrating the application of “time is of the essence” in real estate transactions. In Revital Realty Group, the defendant entered into a contract to sell commercial real estate to plaintiff. “The contract did... Read more »

Posted: December 27, 2013

No Part Performance Exception to Statute of Frauds for Obligations that Cannot be Performed Within a Year

On December 17, 2013, the First Department issued a decision in Gural v. Drasner, 2013 NY Slip Op. 08391, overruling earlier cases recognizing a part performance exception to the Statute of Frauds for contracts that are incapable of being performed within a year. Plaintiff and defendant allegedly orally agreed that if plaintiff cleared defendant’s land, he could... Read more »

Posted: December 24, 2013

Auctioneer Exception to Statute of Frauds Satisfied by Multiple Writings

On December 17, 2013, the Court of Appeals issued a decision in William J. Jenack Estate Appraisers and Auctioneers, Inc., v. Albert Rabizadeh, Docket No. 229, addressing the Statute of Frauds’ requirements for sales at auction. William J. Jenack Estate Appraisers and Auctioneers involved an auction buyer who sought to avoid a $400,000 auction purchase on the ground that the... Read more »

Posted: December 23, 2013

Action Dismissed Due to Failure to Give Contractually-Required Notice and Opportunity to Cure Before Expiration of Limitations Period

On December 19, 2013, the First Department issued a decision in ACE Sec. Corp. v. DB Structured Prods., Inc., 2013 NY Slip Op. 08517, dismissing a mortgage-backed securities lawsuit as barred by the failure both to give the contractually-required notice and an opportunity to cure and to bring suit before the end of the limitations period. In... Read more »

Posted: December 17, 2013

Whether Liquidated Damages Clause is Unenforceable Penalty is Fact Question

On December 6, 2013, Justice Friedman of the New York County Commercial Division issued a decision in 412 W. 12th St. 1N LLC v. C and A Capital LLC, 2013 NY Slip Op. 33099(U), ruling that whether a liquidated damages clause was an unenforcable penalty was a fact question that could not be resolved on a... Read more »

Posted: December 14, 2013

Lease Amendment Invalid Because Landlord’s President Lacked Authority to Amend Lease

On December 12, 2013, the First Department issued a decision in Site Five Hous. Dev. Fund Corp. v. Bullock, 2013 NY Slip Op. 08344, affirming a decision holding that a corporate landlord’s president lacked the authority to modify a lease, rendering the modification upon which the commercial tenant relied invalid. In Five Site, the First Department... Read more »

Posted: December 13, 2013

Dispute Over Authentiticy Precludes Dismissal Based on Documentary Evidence

On December 12, 2013, the First Department issued a decision in Laurel Hill Advisory Group, LLC v. American Stock Transfer & Trust Co., LLC, 2013 NY Slip Op. 08351, illustrating one limit to a motion to dismiss based on documentary evidence: a dispute about the authenticity of the documents relied upon in the motion. In Laurel... Read more »