On November 5, 2015, the First Department issued a decision in Marion Blumenthal Trust v. Arbor Commercial Mortgage, LLC, 2015 NY Slip Op. 08060, holding that prior criminal restitution payments do not prevent a plaintiff for asserting a claim for damages beyond the restitution amount, explaining: We reject appellant Amy Hochfelder’s argument that, given the... Read more »
Blogs
Posts Categorized: Damages
Consequential Damages Not Allowed When Not Foreseeable and Contemplated by Parties
On November 10, 2015, the First Department issued a decision in ERC 16W L.P. v. Xanadu Mezz Holdings LLC, 2015 NY Slip Op. 08094, affirming the denial of consequential damages for a claim of breach of contract, explaining: Plaintiff seeks consequential damages, representing the amount of plaintiff’s lost equity investment in a development project .... Read more »
Pre-Judgment Interest on Unpaid Demand Note Due From Date of Demand
On October 29, 2015, the First Department issued a decision in Gliklad v. Cherney, 2015 NY Slip Op. 07919, holding that prejudgment interest on a demand note begins to accrue on the date of demand for payment, explaining: In an action on a promissory note, CPLR 5001 permits a creditor to recover prejudgment interest from... Read more »
Damages Awarded on Default Judgment Slashed by Second Department
On September 30, 2015, the Second Department issued a decision in Vested Business Brokers, Ltd. v. Ragone, 2015 NY Slip Op. 07022, reducing the damages awarded by a default judgment. In Vested Business Brokers, the Second Department affirmed a default judgment entered against the defendants, holding that the defendants had “failed to proffer a reasonable... Read more »
Contractor Entitled to Amount Due for Work Completed Plus Lost Profits on Uncompleted Work
On August 21, 2015, Justice Pines of the Suffolk County Commercial Division issued a decision in Ocean Marine Development Corp v. National Salvage & Service Corp., 2015 NY Slip Op. 51328(U), holding that “[i]n a breach arising from a construction contract, the claiming contractor has the burden of proving the extent of the harm suffered.... Read more »
Court Rejects Referee’s Recommended Award of Punitive Damages
On August 20, 2015, Justice Kornreich of the New York County Commercial Division issued a decision in Dionne-Tontchev v. Worldwide Wealth Management Corp., 2015 NY Slip Op. 31587(U), rejecting a referee’s recommended award of punitive damages on the plaintiff’s breach of contract, quasi-contract and tort claims, because “[n]o testimony was elicited as to why punitive... Read more »
Absence of Damages Fatal of Breach of Contract Claim
On August 21, 2015, Justice Kornreich of the New York County Commercial Division issued a decision in Twin City Fire Insurance Co. v. Arch Insurance Group, Inc., 2015 NY Slip Op. 31586(U), granting the defendants summary judgment on the plaintiff’s breach of contract claim because the plaintiff had presented no evidence of damages, explaining: It... Read more »
Damages for Breach of “Agreement to Agree” Limited to Out-of-Pocket Expenses
On August 17, 2015, Justice Kornreich of the New York County Commercial Division issued a decision in DOLP 1133 Props. II LLC v. Amazon Corporate, LLC, 2015 NY Slip Op. 31544(U), dismissing claims for specific performance and lost profits in connection with an alleged breach of an agreement to negotiate a lease. In DOLP 1133... Read more »
Prohibition on Delay Damages Enforced Absent Bad Faith, Willful Misconduct or Gross Negligence
On July 30, 2015, the Third Department issued a decision in Tougher Industries, Inc. v. Dormitory Authority of the State of N.Y., 2015 NY Slip Op. 06388, enforcing a prohibition on the award of delay damages in a construction contract. In Tougher Industries, the “plaintiff contracted with defendant to be the prime contractor in charge... Read more »
Fraud Claim Dismissed Because Claimed Damages Violated Out-of-Pocket Rule
On July 24, 2015, Justice Scarpulla of the New York County Commercial Division issued a decision in Kumiva Group, LLC v. Garda USA Inc., 2015 NY Slip Op. 31388(U), dismissing a fraud claim based on the out-of-pocket rule. In Kumiva Group, the plaintiff sued the defendant in connection with the defendant’s acquisition of an armored... Read more »