On January 28, 2015, the Second Department issued a decision in Sakow v. Waldman, 2015 NY Slip Op. 00742, regarding the distribution of a damages award in a derivative action. In Sakow, the plaintiff, who brought an action both individually and derivativly regarding the management of a real estate investment, prevailed at trial and was... Read more »
Blogs
Posts Categorized: Damages
First Department Affirms Injunction Pending Arbitration Based, In Part, On Agreement Limiting Damages
On January 22, 2015, the First Department issued a decision in Matter of Rockwood Pigments NA, Inc. v. Elementis Chromium LP, 2015 NY Slip Op. 00612, affirming the grant of a preliminary injunction prohibiting the termination of a distributorship agreement pending arbitration of the parties’ dispute. This post focuses on one aspect of the Rockwood... Read more »
Consequential Damages Claim Dismissed Because Such Damages Not Contemplated at Time of Contracting
On January 14, 2015, Justice Friedman of the New York County Commercial Division issued a decision in ERC 16W L.P. v. Xanadu Mezz Holdings LLC, 2015 NY Slip Op. 50035(U), dismissing a claim for consequential damages. In ERC 16W L.P., the plaintiff sought, among other things, consequential damages on its claim for breach of contract.... Read more »
Expert Opinion Without Basis in Evidence Cannot Serve as Basis for Damage Award
On January 8, 2015, the Third Department issued a decision in Latham Land I LLC v. TGI Friday’s Inc., 2015 NY Slip Op. 00264, modifying an award of damages. In Latham Land, the Third Department examined whether a damages award had a proper basis in the evidence. It held that it did not, explaining: [W]e... Read more »
Lease Acceleration Clause Not Per Se Unenforceable as Penalty
On December 18, 2014, the Court of Appeals issued a decision in 172 Van Duzer Realty Corp. v. Globe Alumni Student Assistance Association, Inc., 2014 NY Slip Op. 08872, holding that a lease’s acceleration clause was not per se unenforceable as a penalty. The issue before the Court of Appeals in 172 Van Duzer Realty... Read more »
Economic Loss Rule Precludes Tort Claims For Purely Economic Losses Arising From Defective Product
On October 1, 2014, the Second Department issued a decision in 126 Newton St., LLC v. Allbrand Commercial Windows & Doors, Inc., 2014 NY Slip Op 06563, applying the “economic loss rule” to bar the plaintiff (a “downstream purchaser” of a product) from recovering tort damages for economic losses resulting from a defect in the... Read more »
Consequential Damages Not Available When Not Contemplated at the Time of Contracting
On July 2, 2014, Justice Schweitzer of the New York County Commercial Division issued a decision in Rampart Brokerage Corp. v. Ribs NY LLC, 2014 NY Slip Op. 31772(U), dismissing the plaintiff’s damages claim to the extent it sought consequential damages. In Rampart Brokerage Corp., the defendants allegedly mislead the plaintiff and its clients “as to which... Read more »
Claims Dismissed for Failure to Present Evidence of Proximate Causation
On June 30, 2014, Justice Sherwood of the New York County Commercial Division issued a decision in Mizrahi v. Adler, 2014 NY Slip Op. 31701(U), granting defendants summary judgment dismissing the complaint because the plaintiff could not show that the defendants’ misconduct caused his damages. In Mizrahi, the plaintiff asserted legal malpractice, fraud and other... Read more »
Breach of Contract Claim Survives Because Nominal Damages Satisfy Damages Element of Claim
On June 19, 2014, Justice Schweitzer of the New York County Commercial Division issued a decision in 37 East 50th St. Corp. v. Restaurant Group Management Services, LLC, 2014 NY Slip Op. 31595(U), holding that nominal damages are sufficient to support a claim for breach of contract. In 37 East 50th St. Corp., the parties... Read more »
Available Damages Against Sponsor of Mortgage-Backed Securities Trust Limited By “Sole Remedies” Provision in Governing Documents
On May 29, 2014, Justice Bransten of the New York County Commercial Division issued a decision in Saco I Trust 2006-5 v. EMC Mortgage LLC, 2014 NY Slip Op. 31432(U), ruling that Plaintiffs’ claim for rescissory and consequential damages was precluded by a “sole remedies” provision in the governing documents for a mortgage-backed securities investment. In Saco I Trust, the... Read more »