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

Even if a Party’s Counsel in Another Action Agrees to Accept Service, Service is not Effective Without Evidence that the Defendant Gave His Counsel Permission to Accept Service
Commercial Case Notes / Service of Process

Even if a Party’s Counsel in Another Action Agrees to Accept Service, Service is not Effective Without Evidence that the Defendant Gave His Counsel Permission to Accept Service

On September 15, 2023, Justice Cohen of the New York County Commercial Division issued a decision in Credit Europe Bank (Dubai) Ltd. v. Shetty, 2023 NY Slip Op. 33204(U), holding that even if a party’s counsel in another action agrees to accept service, service is not effective without evidence that the defendant gave his counsel permission to accept service . . . Continue reading Even if a Party’s Counsel in Another Action Agrees to Accept Service, Service is not Effective Without Evidence that the Defendant Gave His Counsel Permission to Accept Service

Rescission and Rescissory Damages Unavailable When Defendant is Not Contractual Counterparty
Commercial Case Notes / Contracts / Damages

Rescission and Rescissory Damages Unavailable When Defendant is Not Contractual Counterparty

On September 14, 2023, Justice Schecter of the New York County Commercial Division issued a decision in Han v. Kwak, 2023 NY Slip Op. 33207(U), holding that rescission and rescissory damages are unavailable against a defendant who is not a party to the transaction that he fraudulently induced.” Continue reading Rescission and Rescissory Damages Unavailable When Defendant is Not Contractual Counterparty