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 »
Blogs
Posts Categorized: Damages
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 »
Lost Profits Damages Not Available for New Business
On November 17, 2020, Justice Cohen of the New York County Commercial Division issued a decision in Evemeta, LLC v. Siemens Convergence Creators Corp., 2020 NY Slip Op. 33827(U), holding that lost profits damages are not available for a new business, explaining: New York has a relatively demanding standard for an award of lost profits.... Read more »
Court Upholds Fraud Claim Based on Damages Resulting From Selling at a Fraudulently-Induced Deflated Price
On June 29, 2020, Justice Masley of the New York County Commercial Division issued a decision in Community Assn. of the E. Harlem Triangle, Inc. v. Butts, 2020 NY Slip Op. 32163(U), upholding a fraud claim based on damages resulting from selling at a fraudulently-induced deflated price, explaining: In New York, as in multiple other... Read more »
Liquidated Damages Provision Eliminates Need for Plaintiff to Mitigate Damages
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 »
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 »