On March 12, 2019, the First Department issued a decision in S.A. De Obras y Servicios, COPASA v. Bank of Nova Scotia, 2019 NY Slip Op. 01706, holding that questions of fact precluded the dismissal of a gross negligence claim, explaining: The parties’ March 2010 engagement letter provided that Scotia would be paid only if COPASA... Read more »
Blogs
Posts Categorized: Damages
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 »
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 »
Fraud Claim Dismissed for Failure to Show Out-of-Pocket Damages
On February 8, 2019, the Fourth Department issued a decision in Southwestern Invs. Group, LLC v. JH Portfolio Debt Equities, LLC, 2019 NY Slip Op. 01035, dismissing a fraud claim for failure to show out-of-pocket damages, explaining: To allege a cause of action based on fraud, plaintiff must assert a misrepresentation or a material omission of... Read more »
First Department Finds “No Heightened Pleading Standard” for Consequential Damages in Claim for Bad Faith Claims Handling
On January 17, 2019, the First Department issued a decision in D.K. Prop., Inc. v National Union Fire Ins. Co. of Pittsburgh, Pa., 2019 NY Slip Op 00347, holding that an insured need not satisfy a “heightened pleading standard” in alleging consequential damages arising from an insurer’s bad faith claim handling. This case involved a... Read more »
Liquidated Damages Clause Found to be Unenforceable Penalty
On January 29, 2019, the First Department issued a decision in Trustees of Columbia Univ. in the City of N.Y. v. D’Agostino Supermarkets, Inc., 2019 NY Slip Op. 00551, holding a liquidated damages clause to be an unenforceable penalty, explaining: We find that the damages at the time of the Surrender Agreement were ascertainable. Columbia’s attempt... Read more »
Second Department Affirms Jury’s Lost Profits Damage Award
On January 23, 2019, the Second Department issued a decision in East Hampton Union Free Sch. Dist. v. Sandpebble Bldrs., Inc., 2019 NY Slip Op. 00420, affirming a jury’s award of lost profits damages, explaining: A party may not recover damages for lost profits unless they were within the contemplation of the parties at the time... Read more »
Plaintiff in Bad Faith Action Against Third-Party Insurer Entitled to Collect Amount of Judgment in Excess of the Policy Limits
On December 11, 2018, Judge Garaufis of the EDNY issued a decision in Government Employees Ins. Co. v. Saco, 12-cv-5633 (NGG) (ST), holding that a plaintiff in a bad faith action against a third-party insurer was entitled to collect the amount of a judgment in excess of the policy limits, even if the insured was... Read more »
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 »
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 »