Court RMBS Loan Servicer’s Claim for Lost Profit Damages Arising from Seller’s Failure to Give Notice of Document Defects
ABS Update / Put-Back Actions

Court RMBS Loan Servicer’s Claim for Lost Profit Damages Arising from Seller’s Failure to Give Notice of Document Defects

On September 27, 2023, Justice Crane of the New York County Commercial Division issued a decision in HSBC Bank USA, N.A. v. Nomura Credit & Capital, Inc., 2023 NY Slip Op. 33361(U), dismissing an RMBS loan servicer’s claim for lost profits damages arising from the seller’s failure to give notice of document defects . . . Continue reading Court RMBS Loan Servicer’s Claim for Lost Profit Damages Arising from Seller’s Failure to Give Notice of Document Defects

Aiding and Abetting Claim Does Not Lie Against Defendant That Urged Others to Aid But Who Did Not Himself Aid
Conspiracy/Aiding and Abetting

Aiding and Abetting Claim Does Not Lie Against Defendant That Urged Others to Aid But Who Did Not Himself Aid

On September 29, 2023, Justice Crane of the New York County Commercial Division issued a decision in NW Media Holdings Corp. v. IBT Media Inc., 2023 NY Slip Op. 33366(U), holding that an aiding and abetting claim does not lie against a defendant who urged others to aid misconduct but who did not himself provide any aid . . . Continue reading Aiding and Abetting Claim Does Not Lie Against Defendant That Urged Others to Aid But Who Did Not Himself Aid

Faithless Servant Doctrine Does Not Permit Recoupment of Income Related to Work Untainted by Misconduct
Commercial Case Notes / Labor/Employment

Faithless Servant Doctrine Does Not Permit Recoupment of Income Related to Work Untainted by Misconduct

On September 28, 2023, Justice Boddie of the Kings County Commercial Division issued a decision in Farro v. Schochet, 2023 NY Slip Op. 33394(U), holding that the faithless servant doctrine does not permit recoupment of income related to work untainted by the unfaithful misconduct . . . Continue reading Faithless Servant Doctrine Does Not Permit Recoupment of Income Related to Work Untainted by Misconduct

Malpractice Claim Based on Attorneys’ Misconduct that Injured Plaintiff Upheld at Pleading Stage
Commercial Case Notes / Professional Malpractice

Malpractice Claim Based on Attorneys’ Misconduct that Injured Plaintiff Upheld at Pleading Stage

On September 28, 2023, Justice Boddie of the Kings County Commercial Division issued a decision in Hager v Inner Circle Logistics, Inc., 2023 NY Slip Op. 33395(U), upholding a legal malpractice claim at the pleading stage based on attorneys’ misconduct that injured plaintiff . . . Continue reading Malpractice Claim Based on Attorneys’ Misconduct that Injured Plaintiff Upheld at Pleading Stage

No Claim for Breach of Covenant of Good Faith Lies Where Defendant Had Full Discretion to Act
Commercial Case Notes / Contracts

No Claim for Breach of Covenant of Good Faith Lies Where Defendant Had Full Discretion to Act

On October 5, 2023, the First Department issued a decision in 111 W. 57th Inv. LLC v/ 111 W57 Mezz Inv. LLC, 2023 NY Slip Op. 05029, holding that a defendant that had the sole discretion to take an action could not be held liable for breaching the covenant of good faith and fair dealing for doing so . . . Continue reading No Claim for Breach of Covenant of Good Faith Lies Where Defendant Had Full Discretion to Act

Questions of Fact Preclude Dismissal of Claim That Liquidated Damages Clause Was an Unenforceable Penalty
Commercial Case Notes / Damages

Questions of Fact Preclude Dismissal of Claim That Liquidated Damages Clause Was an Unenforceable Penalty

On September 22, 2023, Just5ice Crane of the New York County Commercial Division issued a decision in Penn Hotel Jr. LLC v. JCMC W. 34 Mezz II LLC, 2023 NY Slip Op. 33315(U), holding that questions of fact precluded dismissal of a claim that a liquidated damages provision was an unenforceable penalty . . . Continue reading Questions of Fact Preclude Dismissal of Claim That Liquidated Damages Clause Was an Unenforceable Penalty

Recoupment Defense Fails for Lack of Contractual Duty to Make Payments to be Recouped
Commercial Case Notes / Contracts / Setoff/Recoupment

Recoupment Defense Fails for Lack of Contractual Duty to Make Payments to be Recouped

On September 26, 2023, the First Department issued a decision in AOG, LLC v. Kind Operations Inc., 2023 NY Slip Op. 04710, holding that a recoupment defense should have been dismissed for lack of a contractual duty to make the payments to be recouped . . . Continue reading Recoupment Defense Fails for Lack of Contractual Duty to Make Payments to be Recouped

Legal Malpractice Claim Fails for Lack of Evidence of Causation
Commercial Case Notes / Professional Malpractice

Legal Malpractice Claim Fails for Lack of Evidence of Causation

On September 14, 2023, Justice Schecter of the New York County Commercial Division issued a decision in Marconi v. Gates Capital Corp., 2023 NY Slip Op. 33197(U), dismissing a legal malpractice claim on summary judgment for lack of facts showing that the defendants’ alleged malpractice damaged the plaintiff . . . Continue reading Legal Malpractice Claim Fails for Lack of Evidence of Causation