On June 11, 2024, the First Department issued a decision in Brevet Direct Lending Short Duration Fund, L.P. v. Aprio LLP, 2024 NY Slip Op. 03128, holding that a contract term limiting liability to gross negligence requires intentional wrongdoing or reckless indifference to the rights of others, explaining:
Gross negligence, when invoked to pierce an agreed-upon limitation of liability in a commercial contract, must smack of intentional wrongdoing or evince a reckless indifference to the rights of others. Defendant’s failure to check if the addresses from which emails, which did not bounce back and which appeared to come from legitimate addresses, were sent were the actual addresses of their purported senders, does not meet this standard. Defendant’s conduct does not evince the recklessness necessary to abrogate a contractual limitation of liability.
(Internal quotations and citations omitted).