American Express v. Assih

2 Citing briefs

  1. Brown & Brown, Inc., et al., Appellants,v.Theresa A. Johnson, et al., Respondents. (AD No. CA 13-00340)

    Brief

    Filed May 6, 2015

    2009) and Clifton Steel Corp. v. General Elec., Co., 80 A.D.2d 714 (3d Dep't 1981) (and its companion case, Clifton Steel Corp. v. General Elec., Co., 80 A.D.2d 715 (3d Dep't 1981)) merely bolster B&B's position. In both these cases, the courts invalidated the parties' choice of law not because of a theoretical policy issue but rather based on application of the chosen law to the specific facts at issue in the case - in American Express, application of the Utah usury laws to a loan, 26 Misc. 3d at 1022-27, and in Clifton Steel, application of the Connecticut law governing lien waivers to a lien issue, 80 A.D.2d at 714. It is respectfully submitted that such method is the only reasonable approach for a court to take.

  2. Brown & Brown, Inc., et al., Appellants,v.Theresa A. Johnson, et al., Respondents. (AD No. CA 13-00340)

    Brief

    Filed May 6, 2015

    The rationale is obvious: applying the substantive law of multiple states to the same cause of action is unwieldy, burdensome, eliminates uniformity in the application of both states' laws, and the contracting parties could - 25 - not possibly have agreed to the retroactive application of a judicially created, hybrid combination of two different states' substantive laws.1 Indeed, New York Courts have routinely applied New York law to all issues in a cause of action after determining that the law chosen in a choice-of-law clause violates New York public policy; even to those issues that were not explicitly stated to encompass New York public policy. For example, in American Exp. Travel Related Servs. Co. v. Assih, 26 Misc. 3d 1016, 1024-25 (N.Y. Sup. Ct. 2009), the parties' Utah choice-of-law clause violated the New York public policy embodied in General Obligations Law §5-501, Banking Law §14-a(l), and Penal Law§ 190.40.