Filed January 4, 2018
Damages sought under a tort theory that “were clearly within the contemplation of the written agreement,” as is the case here, are the precise type of damages that this Court said in Clark-Fitzpatrick do not give rise to separate tort claims in breach of contract actions. 70 N.Y.2d at 390, 521 N.Y.S.2d at 657. As these facts 29 demonstrate, DASNY is seeking nothing more than “to enforce its bargain.”
Filed January 15, 2013
This legal duty must spring from circumstances extraneous to, and not constituting elements of, the contract.” Clark-Fitzpatrick, Inc., 70 N.Y.2d at 389 (citations omitted). Plaintiffs have alleged no such duty and none exists.
Filed January 27, 2017
Id. § 1981(1); see also Clark- Fitzpatrick, Inc., 70 N.Y.2d at 387 (similar language in enabling legislation “inexorably” led to conclusion that authority performed “essential public function”). Thus, even if a particularized inquiry into BPCA’s status or activities were appropriate here—and it is not—such an inquiry would reinforce rather than rebut the premise that BPCA is a public entity created by the Legislature to serve public ends.
Filed January 27, 2017
In those cases, however, the Court was balancing the privileges of a public-benefit corporation against the interests of private entities—not against the Legislature’s constitutional authority. E.g., Clark-Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 N.Y.2d 382, 388 (1987) (holding that the Long Island Railroad Company was immune from punitive damages in a lawsuit brought by private company); John Grace & Co. v. State Univ. Constr.
Filed January 27, 2017
The United State Court of Appeals for the Second Circuit certified the following questions to this Court: (1) Before New York State’s capacity-to-sue doctrine may be applied to determine whether a State-created public benefit corporation has the capacity to challenge a State statute, must it first be determined whether the public benefit corporation “should be treated like the State,” see Clark–Fitzpatrick, Inc. v. Long Island R.R. Co., [70 N.Y.2d 382, 521 N.Y.S.2d 653] 516 N.E.2d 190, 192 ([ ]1987), based on a “particularized inquiry into the nature of the instrumentality and the statute claimed to be applicable to it,” see John Grace & Co. v. State Univ. Constr. Fund, [44 N.Y.2d 84, 404 N.Y.S.2d 316] 375 N.E.2d 377, 379 ([ ]1978), and if so, what considerations are relevant to that inquiry?; and (2) Does the “serious injustice” standard articulated in Gallewski v. H. Hentz & Co., [301 N.Y. 164] 93 N.E.2d 620 ([ ]1950), or the less stringent “reasonableness” standard articulated in Robinson v. Robins Dry Dock & Repair Co., [238 N.Y. 271] 144 N.E. 579 (1924), govern the merits of a due process challenge under the New York State Constitution to a claim-revival statute? 2 6674056v.3 In re World Trade Ctr. Lower Manhattan Disaster Site Litig., 846 F.3d 58, 60–61 (2d Cir. 2017).
Filed May 1, 2015
See Clark-Fitzpatrick, 70 N.Y.2d 382, 388 (1987). In all events, Plaintiffs damages are barred by New York’s economic loss rule, which precludes recovery of economic losses in tort to “keep contract law from drown[ing] in a sea of tort.
Filed January 23, 2015
AG Capital Funding Partners, 866 N.Y.S.2d at 584; Ellington, 837 F. Supp. 2d at 192-93 (dismissing breach of fiduciary duty claim as duplicative); id. at 200-01 (dismissing negligent misrepresentation claim as duplicative). Here, Plaintiffs’ non-contract claims also fail because they simply restate Plaintiffs’ contract claims. Clark-Fitzpatrick, Inc., 521 N.Y.S.2d at 657. The contract claims are virtually mirror images of Plaintiffs’ other claims. Royal Park: Royal Park’s breach of trust claim that HSBC failed to act prudently in the face of Events of Default restates its contract claim: Royal Park Contract Claim: “[P]laintiff . . . did not receive the benefit of [its] bargain, to wit, that HSBC would act as a prudent person . . . when HSBC knew of Events of Default.” RP Compl
Filed January 4, 2018
Contract and tort claims are not always mutually exclusive; to the contrary, this Court has been clear that a tort duty “may be connected with and dependent upon [a] contract.” Clark- Fitzpatrick, Inc. v. Long Island R. Co., 70 N.Y.2d 382, 389 (1987). 30 Thus, one set of facts may give rise to both types of claims, particularly where, as here, the public interest is implicated.
Filed January 4, 2018
Because the damages sought “were clearly within the contemplation of the written agreement,” they should not give rise to a separate tort claim in a breach of contract action. Clark- Fitzpatrick, Inc. v. Long Island R.R. Co., 70 N.Y.2d 382, 390, 521 N.Y.S.2d 653, 657 (1987). Finally, on the issue of damages, DASNY spends the last few pages of its brief addressing the claimed inapplicability of the economic loss rule to a tort claim based on breach of a professional duty.5 But Perkins does not cite to or rely on the rule.
Filed January 27, 2017
at 11), and that “‘a particularized inquiry is necessary to determine whether—for the specific purpose at issue—the public benefit corporation should be treated like the State’” (id. at 13 (quoting Clark-Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 N.Y.2d 382, 387 (1987))). 5 No particularized inquiry is required, however, where the “specific purpose at issue” is an attempt by a public authority to assert due process rights against the Legislature.