On April 24, 2020, Justice Scarpulla of the New York County Commercial Division issued a decision in Gorelick v. Cushman & Wakefield, Inc., 2020 NY Slip Op. 31298(U), holding that a liquidated damages clause eliminates the need for the plaintiff to mitigate its damages, explaining: Plaintiff moves to dismiss the Third Affirmative Defense, which alleges... Read more »
Blogs
Posts Categorized: Damages
Court Upholds Claim Seeking Constructive Trust
On April 2, 2020, the First Department issued a decision in Homapour v. Harounian, 2020 NY Slip Op. 02179, upholding a claim seeking a constructive trust, explaining: The court erred in dismissing the derivative claim for a constructive trust against Harounian and the Harounian LLCs. A constructive trust is an equitable remedy, and its purpose... Read more »
Provision Limiting Liability for Breach of Contract Enforceable
On January 29, 2020, the Second Department issued a decision in Astoria Generating Co., LP v. Riley Power, Inc., 2020 NY Slip Op. 00560, enforcing a contracual limitation of liability provision, explaining: A clear contractual provision limiting damages is enforceable, unless there is a special relationship between the parties, there is a statutory prohibition against... Read more »
Contrary to Recent First Department Case Law, Federal Court Rules that Attorneys’ Fees Are Not Recoverable Consequential Damages on Claim for Insurers’ Breach of Covenant of Good Faith and Fair Dealing
Posted by Bradley J. Nash, Litigation Partner On December 30, 2019, Judge Briccetti of the SDNY issued a decision in Ruiz v. Liberty Mut. Fire Ins. Co., 19 CV 4399 (VB), denying an insurer’s motion to dismiss an insured’s claim for breach of the covenant of good faith and fair dealing, but ruling (contrary to... Read more »
Insured Properly Pleads Claim for Consequential Damages Resulting from Insurer’s Refusal to Advance Business Interruption Coverage
Posted by Bradley J. Nash, Litigation Partner On December 5, 2019, the First Department issued a decision in Certain Underwriters at Lloyd’s v. BioEnergy Development Group, LLC, 2019 NY Slip Op 08779, reversing a trial court’s dismissal of a claim based on the insurer’s bad faith delay in providing business interruption coverage, explaining: The breach... Read more »
Alleged Poor Administration or Planning Insufficient to Bar Defendant’s Reliance on No Damages for Delay Clause
On November 19, 2019, the First Department issued a decision in WDF Inc. v Turner Constr. Co., 2019 NY Slip Op. 08379, holding that alleged poor administration or planning was insufficient to overcome a construction contract’s no damages for delay clause, explaining: This case is factually strikingly similar to another action brought by plaintiff seeking... Read more »
Constructive Trust Upheld
On October 30, 2019, the Second Department issued a decision in Galasso, Langione & Botter, LLP v. Galasso, 2019 NY Slip Op. 07769, upholding the imposition of a constructive trust, explaining: We agree with the Supreme Court’s determination to grant that branch of the Barons’ motion which was for summary judgment on the eighth cause... Read more »
Court Dismisses Claim for Lost Profits Damages
On October 9, 2019, Justice Sherwood of the New York County Commercial Division issued a decision in Electron Trading LLC v. Perkins Coie LLP, 2019 NY Slip Op. 33019(U), dismissing a claim for lost profits damages, explaining: The law in New York is well settled that in order to obtain lost profits for breach of... Read more »
Commercial Reasonableness of Creditor’s Auction Disposing of Collateral Created Issue of Fact Regarding Damages
On October 4, 2019, Justice Schecter of the New York County Commercial Division issued a decision in Capital One Equip. Fin. Corp. v. Rami Cab Corp., 2019 NY Slip Op. 32934(U), holding that the commercial reasonableness of a creditor’s auction disposing of collateral created an issue of fact regarding damages, explaining: As to plaintiffs entitlement... Read more »
Court Erred in Awarding Damages That Were Not Proved or Requested
On October 8, 2019, the First Department issued a decision in Pastreich v. Pastreich, 2019 NY Slip Op. 07215, holding that the trial court erred in awarding damages that were not proved or requested, explaining: Further, as to the imposition of liability on Yitzhak, we decline to disturb that finding in light of the deference... Read more »