On June 24, 2021, the First Department issued a decision in Besen v. Farhadian, 2021 NY Slip Op. 04080, dismissing a breach of fiduciary duty claim for lack of damages, explaining: To state a claim for breach of fiduciary duty, plaintiffs must allege that (1) defendant owed them a fiduciary duty, (2) defendant committed misconduct,... Read more »
Blogs
Posts Categorized: Damages
Liquidated Damages Provision Based on Notice of Intention to Redevelop Property Not Enforceable When Tenancy Not Terminated
On May 25, 2021, Justice Borrok of the New York County Commercial Division issued a decision in Prada USA Corp. v. 724 Fifth Fee Owner LLC, 2021 NY Slip Op. 50494(U), holding that a liquidated damages provision based on notice of an intention to redevelop a property was not enforceable when the tenancy was not... Read more »
Breach of Contract Claim Dismissed for Failure to Allege Damages
On April 29, 2021, the First Department issued a decision in AmBase Corp. v. 111 W. 57th Sponsor LLC, 2021 NY Slip Op. 02589, holding that a breach of contract claim failed for lack of allegations of damages, explaining: [T]he SAC alleges that Sponsor failed to disclose a change to its investors as a result... Read more »
Remedy for Prohibited Transfer is Voiding Transfer, Not Money Damages
On April 1, 2021, Justice Cohen of the New York County Commercial Division issued a decision in JDS Highline LLC v. 514 W. 24th St. Partners LLC, 2021 NY Slip Op. 31042(U), holding that the remedy for a prohibited transfer is voiding the transfer, not money damages, explaining: Section 9.3 of the JVA provides that... Read more »
Expert Report and Damages Theory Excluded Because Defendant Was Not on Notice of Damages Theory
On March 30, 2021, the First Department issued a decision in Advanced Aerofoil Tech. AG v. MissionPoint Capital Partners LLC, 2021 NY Slip Op. 01938, affirming the exclusion of expert reports and a damages theory because the defendant had not been put on notice of them or the evidence upon which they were based until... Read more »
Claim Related to Hacking of Client Data Dismissed for Lack of Damages
On March 30, 2021, Justice Platkin of the Albany County Commercial Division issued a decision in Keach v. BST & Co. CPAs, LLP, 2021 NY Slip Op. 50273(U), dismissing a claim based on the hacking of the defendant’s servers because of the lack of damages, explaining: Whether a person seeking relief is a proper party... Read more »
Plaintiffs Cannot Avoid Application of Liquidated Damages Clause
On February 8, 2021, Justice Sherwood of the New York County Commercial Division issued a decision in Raven Capital Mgt. LLC v. Georgia Film Fund 72, LLC, 2021 NY Slip Op. 30393(U), rejecting plaintiffs’ attempt to avoid the application of a liquidated damages clause, explaining: Defendant successfully argues that plaintiffs cannot recover more than the... Read more »
Gross Negligence Claims Cannot Overcome Sole Remedy Clause
On December 22, 2020, the Court of Appeals issued a decision in Matter of Part 60 Put-Back Litig., 2020 NY Slip Op. 07687, holding that gross negligence claims could not overcome the damages limitations in a sole remedy clause, explaining: In New York, contractual exculpatory clauses intended to insulate a party from liability for its... Read more »
Court Rejects Effort to Avoid Pre-Judgment Interest
On December 2, 2020, Justice Cohen of the New York County Commercial Division issued a decision in Franco Belli Plumbing & Heating & Sons, Inc. v. Citnalta Constr. Corp., 2020 NY Slip Op. 33953(U), rejecting an attempt to avoid an award of pre-judgment interest, explaining: Next, the branch of Defendants’ motion seeking to compute pre-judgment... Read more »
Liquidated Damages Clause Found to be Unenforceable Penalty
On November 24, 2020, the Court of Appeals issued a decision in Trustees of Columbia Univ. in the City of N.Y. v. D’Agostino Supermarkets, Inc., 2020 NY Slip Op. 06937, finding a liquidated damages clause to be an unenforceable penalty, explaining: In accordance with the parties’ commercial tenancy, in the event of a breach, plaintiff... Read more »