On September 30, 2020, the Second Department issued a decision in Loughlin v. Meghji, 2020 NY Slip Op. 05196, enforcing a contract provision granting a prevailing party double its attorneys’ fees, explaining: We disagree with the Supreme Court’s sua sponte determination that the provision of the PSA, which, in the event of litigation, allows for... Read more »
Blogs
Posts Categorized: Indemnification and Advancement
Trust Entitled to Fees in RMBS Put-Back Action Based on Representation and Warranty Breaches
On May 25, 2020, Justice Friedman of the New York County Commercial Division issued a decision in Part 60 Put-Back Litigation, 2020 NY Slip Op. 31693(U), holding that a trustee can obtain attorneys’ fees from a seller in an RMBS put-back action based on representation and warranty breaches, but not deciding whether fees would be... Read more »
Party Whose Liability Was Only Vicarious Entitled to Common Law Indemnification
On April 20, 2020, Justice Cohen of the New York County Commercial Division issued a decision in Shah v. 20 E. 64th St. LLC, 2020 NY Slip Op. 31002(U), holding that a party whose liability was only vicarious was entitled to common law indemnification, explaining: Common-law indemnification is warranted where a defendant’s role in causing... Read more »
Litigant Not Entitled to Indemnification by Contractual Counter-Party Because Contract Was Not Unmistakably Clear
On April 17, 2020, Justice Borrok of the New York County Commercial Division issued a decision in Huguenot LLC v. Megalith Capital Group Fund I, LP, 2020 NY Slip Op. 30966(U), holding that a litigant was not entitled to contractual indemnification in an intra-party litigation because the indemnification provision in the contract was not unmistakably... Read more »
Existence of Contract Bars Claim for Equitable Indemnification
On April 13, 2020, Justice Borrok of the New York County Commercial Division issued a decision in Allergan Fin., LLC v. Pfizer Inc., 2020 NY Slip Op. 50422(U), holding that the existence of a contract that addressed indemnification barred a claim for equitable indemnification, explaining: The principle of equitable indemnification, also known as common law... Read more »
Courts Grants Preliminary Injunction Directing D&O Insurer to Advance Costs for Defense of Civil Fraud Action
Posted by Bradley J. Nash, Litigation Partner On February 3, 2020, Justice Sherwood of the New York County Commercial Division issued a decision in Alexander v. Starr Surplus Lines Ins. Co., 2020 NY Slip Op 30297(U), granting a preliminary injunction directing a D&O insurer to advance defense costs to a former corporate officer for an... Read more »
Defendant that Engaged in Wrongdoing Not Entitled to Common Law Indemnification
On December 20, 2019, the Fourth Department issued a decision in Board of Educ. of Palmyra-Macedon Cent. Sch. Dist. v. Flower City Glass Co., Inc., 2019 NY Slip Op. 09123, holding that a defendant that had engaged in wrongdoing was not entitled to common law indemnification, explaining: We further agree with Nudo that the court... Read more »
Indemnification Provision Insufficiently Specific to Support Claim in Action Between Contracting Parties
On July 29, 2019, Justice Scarpulla of the New York County Commercial Division issued a decision in Barnett v. Seth Berkowitz Serve U Brands Inc., 2019 NY Slip Op. 32257(U), holding that an indemnification provision was insufficiently specific to support a claim for attorneys’ fees in an action between the contracting parties, explaining: Defendants assert... Read more »
Failure to Give Required Notice Doomed Indemnification Claim
On June 24, 2019, Justice Risi of the Queens County Commercial Division issued a decision in Quantum Servicing Corp. v. First Madison Servs. LLC, 2019 NY Slip Op. 51022(U), holding that the failure to give the required notice doomed a claim for contractual indemnification, explaining: In Conergics Corp. v. Dearborn Mid-W. Conveyor Co., the seller... Read more »
Public Policy Does Not Bar Indemnification for Prior Criminal Acts
On June 3, 2019, Justice Ostrager of the New York County Commercial Division issued a decision in Arici v. Poma, 2019 NY Slip Op. 31586(U), holding that public policy does not bar indemnification for prior criminal acts, explaining: Defendant argues that the SPA obligates Plaintiff to indemnify Defendant for damages associated with that tax crime... Read more »