Recently in Contract Law Category

In an action claiming that defendant insurer was bound by the terms of an excess insurance policy it had issued to contribute to the satisfaction of a state-court judgment of liability in a personal injury action against two entities for whom the insured had been a contractor, summary judgment for plaintiffs is reversed where the district court erred in deciding that the state-court judgment established legal liability against the insured.

Read General Star Nat. Ins. Co. v. Universal Fabricators, Inc., No. 07-4443

Appellate Information

Argued: September 3, 2008

Decided: November 5, 2009

Judges

Opinion by Judge Sack

Counsel

For Appellant:

Christopher Bradley, Marshall, Conway, Wright & Bradley, P.C., New York, NY

For Appellees:

Patrick W. Brophy, McMahon, Martine & Gallagher, LLP, Brooklyn, NY

In an action for payment on a labor and materials payment bond issued by defendants in connection with a construction project, judgment for plaintiff is affirmed in part where the district court did not err in finding that the action was timely under the terms of the bond. However, the judgment is reversed in part where the district court improperly set off from the damages award the contractor's full cost to complete that portion of the contracted work that had not been completed by plaintiff.

Read Arch Ins. Co. v. Precision Stone, Inc., No. 07-3950

Appellate Information

In an appeal from the district court's order requiring defendant to arbitrate the issue of whether it was bound by the terms of a collective bargaining agreement, the order is affirmed where defendant's predecessor corporation was a party to the agreement and thus it was binding on defendant.

Read Local 348-S v. Meridian Mgmt. Corp., No. 07-0080

Appellate Information

Argued: June 20, 2008

Decided: October 2, 2009

Judges

Opinion by Judge Hall

Counsel

For Appellant:

Robert G. Riegel, Jr., Coffman, Coleman, Andrews & Grogan, P.A., Jacksonville, FL

For Appellee:

J. Warren Mangan, O'Connor & Mangan, P.C., New Rochelle, NY

In an appeal from the district court's order granting petitioners' motion to stay arbitration in a dispute arising under a collective bargaining agreement, the order is affirmed where the underlying dispute between petitioners and respondent union was jurisdictional, and the collective bargaining agreement at issue expressly provided that jurisdictional disputes were not subject to arbitration.

Read Constr. Indus. Employers Ass'n v. Local Union No. 210, No. 08-4647

Appellate Information

Argued: September 2, 2009

Decided: September 11, 2009

Judges

Per Curiam

Counsel

For Appellant:

Robert A. Doren, Bond, Schoeneck & King, PLLC, Buffalo, NY

For Appellee:

John A. Collins, New York, NY

In a breach of contract class action involving homeowner's insurance premiums, district court's grant of defendant's motion to dismiss is reversed in part where: 1) the court properly dismissed a claim under New York Insurance Law sec. 3425.5 as the conditional notice requirements of the statute were not triggered; 2) the court erred in dismissing plaintiff's breach of contract action as defendant's explanation for the increase in his coverage amounts and premiums does not resolve the ambiguity of the terms in the policy and does not adequately refute plaintiff's claim that the increases were not based on current costs and values, and thus plaintiff has met the standard necessary to resist the motion to dismiss; 3) the voluntary payment doctrine cannot stand as an alternate basis for dismissal of plaintiff's claim; and 4) the court properly dismissed plaintiff's deceptive business practices claim under New York General Business Law sec. 349 as plaintiff failed to  plead a sufficient injury under the statute.    

Read Spagnola v. The Chubb Corp., No. 07-1296

Appellate Information
Appeal from the United States District Court for the Southern District of New York.
Argued: September 17, 2008
Decided: July 28, 2009

Judges
Before: WALKER, KATZMANN, and JOHN R. GIBSON, Circuit Judges.
Opinion by GIBSON, Circuit Judge.

Counsel
For Plaintiff: ROGER W. KIRBY, Kirby McInerney & Squire, LLP, New York, NY.

For Defendant: KEARA M. GORDON, DLA Piper US LLP, New York, NY.

In a action for breach of contract and securities fraud, district court's grant of plaintiff's motion to dismiss is affirmed where: 1) the court properly ruled that plaintiff's contract claim was barred by the Statute of Frauds as the possibility of performance of the alleged oral agreement within one year depended solely on the will and actions of plaintiff, the party seeking to enforce the agreement; and 2) plaintiff's securities fraud claim under the Securities Exchange Act and SEC rules fail for lack of plausible and cogent allegations of scienter as the factual allegations do not give rise to an inference of either fraudulent intent or conscious recklessness, and the inferences advocated by plaintiff were not as compelling as an inference of negligence.    

Read South Cherry Street, LLC v. Hennessee Group LLC, No. 07-3658

Appellate Information
Appeal from the United States District Court for the Southern District of New York.
Argued: January 16, 2009
Decided: July 14, 2009

Judges
Before JACOBS, Chief Judge, KEARSE and HALL, Circuit Judge.
Opinion by KEARSE, Circuit Judge.

Counsel
For Plaintiff: Ted Poretz

For Defendant: Bennett Falk

In a trademark dispute involving Austrian liquor, district court order granting defendants motion to dismiss for improper venue is reversed and remanded where the subject matter of plaintiff's claims is not covered by the forum selection clauses contained in the licensing agreement as plaintiff's claims do not sound in contract and are not based on rights originating from the licensing agreement.    

Read Altvater Gessler-J.A. Baczewski Int'l Inc. v. Sobieski Destylarnia S.A., No. 07-2273

Appellate Information
Appeal from the United States District Court for the Southern District of New York.
Argued: September 22, 2008
Decided: July 13, 2009

Judges
Before: WESLEY, HALL, and GIBSON, Circuit Judges.
Opinion by GIBSON, Circuit Judge.

Counsel
For Plaintiff: Christopher L. Deininger

For Defendant: Jamie D. Underwood

In an action involving payments related to a lease and recognition agreement, district court judgment in favor of plaintiff is vacated and remanded where: 1) New York's Uniform Commercial Code does not prohibit defendant from asserting constructive eviction as a defense to plaintiff's claims arising from the lease; 2) the estoppel certificate in the recognition agreement does not bar defendant's constructive eviction defense if defendant was unaware of the faulty condition of the building pad when it executed the parties' recognition agreement and its lack of awareness was reasonable at the time; and 3) if defendant was constructively evicted, the lease was terminated and defendant was relieved of its obligation to pay rent under the "hell or high water" clause of the parties' recognition agreement. 

Read Reliastar Life Ins. Co. of New York v. Home Depot U.S.A, Inc., No. 07-0087

Appellate Information
APPEAL from a judgment of the United States District Court for the Eastern District of New York.
Argued: March 25, 2008
Decided: June 29, 2009

Judges
Before JACOBS, Chief Judge and HALL, Circuit Judge.
Per Curium Opinion

Counsel
For Appellee: Anthony M. Piccione, Otterbourg, Steindler, Houston & Rosen, P.C., New York, NY.
For Appellant: John H. Gross, Proskauer Rose LLP, New York, NY.