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 »
Blogs
Posts Categorized: Damages
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 »
First Department Approves Sampling in RMBS Actions
On September 17, 2019, the First Department issued a decision in Home Equity Mtge. Trust Series 2006-1 v DLJ Mtge. Capital, Inc., 2019 NY Slip Op 06576, holding that sampling was appropriate to determine both liability and damages in RMBS put-back actions, explaining: The court correctly granted plaintiffs’ motion and denied defendant’s motion regarding the... Read more »
Placing Disputed Funds in Escrow Did Not Stop Liability for Post-Judgment Interest
On September 10, 2019, the First Department issued a decision in Triadou SPV S.A. v. CF 135 Flat LLC, 2019 NY Slip Op. 06453, holding that placing funds in an escrow account did not stop accrual of post-judgment interest, explaining: Defendants’ deposit of full payment on the judgments entered against it to a court monitored... Read more »
Where Contract Has Choice of Law Provision, Substantive Law of Chosen Jurisdiction Controls Award of Prejudgment Interest
On August 21, 2019, Justice Scarpulla of the New York County Commercial Division issued a decision in Cricket Stockholder Rep, LLC v. Project Cricket Acquisition, Inc., 2019 NY Slip Op. 32469(U), holding that where a contract has a choice of law provision, the substantive law of the chosen jurisdiction controls the award of prejudgment interest,... Read more »
Questions of Fact Preclude Dismissal of Gross Negligence Claim
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 »