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 »
Blogs
Posts Categorized: Damages
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 »
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 »