In Castle Restoration & Constr., Inc. v Castle Restoration, LLC, Suffolk County Commercial Division Justice Elizabeth H. Emerson refused to enforce an oral agreement that allegedly modified a prior written agreement between the parties. In this blog post, we see how the Court applied a variety of contractual principals to determine the validity of
Asserting an Equitable Defense or Counterclaim? “Waive” Your Jury Goodbye!
Most New York practitioners are aware that certain causes of action are triable by a jury, while other claims are triable only by the court. For example, causes of action for money damages, such as tort claims, contract claims, and certain statutory claims, are triable by a jury, while equitable claims, such as claims for
Fraud Claims Dismissed Based on the “As Is, Where Is, and With All Faults” Contractual Provision
Nobody likes fraud claims asserted against them. Thankfully for defendants, fraud claims are notoriously difficult to prove, and defendants often try to have these claims dismissed at the pleading stage.
An express disclaimer in a contract is often a popular avenue for litigants facing a fraud claim to move for dismissal. A recent Commercial Division
Defenses and Counterclaims In a CPLR 3213 Action Are Only Successful If They’re “Inseparable”
In one of my previous posts, I discussed the basic requirements for bringing a CPLR 3213 motion for summary judgment in lieu of complaint. One such requirement (and the one that generates the largest body of case law), is that the document upon which the motion is based qualify as either a “money instrument”
Too “Privileged” To Be Held Liable for Defamation, Says the Commercial Division
“Relevant statements made in judicial or quasi-judicial proceedings are afforded absolute protection so that those discharging a public function may speak freely to zealously represent their clients without fear of reprisal or financial hazard.”
Professionals, including attorneys, and individuals may find themselves subject to a defamation lawsuit. Attorneys, however, may sometimes rely on absolute or
Commercial Division Again Rejects Commercial Tenant’s Impossibility / Frustration of Purpose Defenses in the Wake of COVID-19
Earlier this year, my colleague, Madeline Greenblatt, wrote about the emergence of a new body of case law emanating from the myriad effects the COVID-19 pandemic has had on the real estate industry. In her blog, Madeline discussed a recent decision from the Manhattan Commercial Division (Borrok, J.), rejecting a commercial tenant’s argument
“Single Breach” vs. “Continuing Wrong”; the Continuing Wrong Doctrine Prevails, Saving Plaintiff’s Claim from Dismissal
A cause of action accrues, triggering the commencement of the statute of limitations period, when “all of the factual circumstances necessary to establish a right of action have occurred, so that the plaintiff would be entitled to relief” (Gaidon v. Guardian Life Ins. Co. of Am.). The “continuing wrong” doctrine is an exception
Expect Careful Scrutiny of Contractually Shortened Statutes of Limitations
The statutes of limitations set forth in the CPLR are default rules, and parties generally are free to modify default rules by agreement. But statutes of limitations also further the important public interests, such as avoiding stale claims and giving repose to our affairs. In light of the public interests involved, there are substantial limits on how much parties can agree to lengthen, shorten, or waive the limitations periods applicable to claims arising under New York law.
For example, while parties can agree to a shorter limitations period than prescribed by the CPLR, a recent case by Albany County Commercial Division Justice Richard Platkin serves as a sharp reminder that a contractually shortened limitations period must be reasonable under the circumstances and, in many cases, the reasonableness of such an agreement depends not only on the length of the limitations period itself, but also on the accrual date.Continue Reading Expect Careful Scrutiny of Contractually Shortened Statutes of Limitations
Res Judicata: Avoiding Preclusion Confusion in Derivative Litigation
A few weeks ago, my colleague Sonia Russo blogged about how shareholders seeking to bring successive derivative actions should be wary, since dismissal of a derivative action for failure to allege pre-suit demand or demand futility may have a preclusive effect on a subsequent derivative action based on the same issues. But what if a
Walking a Fine Line: Asserting a Claim for Mistake in a Contract Without Waiving Privilege
It works the same way in small businesses as it does in major investment firms: the executives reach agreement on the terms of a deal, then leave the lawyers to paper things accordingly. But sometimes the papered deal differs from the agreement the parties actually reached, and neither side notices the differences until long after