damages claim in New York

2015We conclude, however, that plaintiffs are not entitled to a declaration in their favor at this juncture because they have not established that the damages clause of section 7.1 is enforceable (see generally id. at 396).

2015We conclude, however, that plaintiffs are not entitled to a declaration in their favor at this juncture because they have not established that the damages clause of section 7.1 is enforceable (see generally id. at 396).

2015As the parties acknowledge, the provision of section 7.1 governing the amount of the fee to be paid “essentially represents a liquidated damages clause” (id.), and is thus enforceable if, at the time the agreement was made, the amount of plaintiffs’ actual loss was “incapable or difficult of precise estimation” and the amount liquidated was not “plainly or grossly disproportionate to the probable loss” (Truck Rent-A-Ctr. v Puritan Farms 2nd, 41 NY2d 420, 425 [1977]; see JMD Holding Corp. v Congress Fin.

2015As the parties acknowledge, the provision of section 7.1 governing the amount of the fee to be paid “essentially represents a liquidated damages clause” (id.), and is thus enforceable if, at the time the agreement was made, the amount of plaintiffs’ actual loss was “incapable or difficult of precise estimation” and the amount liquidated was not “plainly or grossly disproportionate to the probable loss” (Truck Rent-A-Ctr. v Puritan Farms 2nd, 41 NY2d 420, 425 [1977]; see JMD Holding Corp. v Congress Fin.

2026Sufficiency of the Claim Pursuant to Court of Claims Act § 8-b (4) The Court now finally turns to the principal question of whether, as required by Court of Claims Act § 8-b (4), Mr. McDowell's claim and its attachments [FN10] have offered "facts in sufficient detail" for the Court to conclude that he will likely be able to prove two things at trial: that "he did not commit any of the acts charged in the accusatory instrument" and that "he did not by his own conduct cause or bring about his conviction." As the Court of Appeals has warned, "[t]he task facing a claimant who attempts to assert a

2026Sufficiency of the Claim Pursuant to Court of Claims Act § 8-b (4) The Court now finally turns to the principal question of whether, as required by Court of Claims Act § 8-b (4), Mr. McDowell's claim and its attachments [FN10] have offered "facts in sufficient detail" for the Court to conclude that he will likely be able to prove two things at trial: that "he did not commit any of the acts charged in the accusatory instrument" and that "he did not by his own conduct cause or bring about his conviction." As the Court of Appeals has warned, "[t]he task facing a claimant who attempts to assert a

2015We note that defendant moved for summary judgment dismissing the complaint or, in the alternative, for summary judgment dismissing the damages claim for decedent’s conscious pain and suffering, and we further note that plaintiff’s attorney averred in his opposing attorney’s affirmation that plaintiff had “no objection to the portion of the motion dismissing the conscious pain and suffering claim.” With respect to her motion, we conclude that defendant failed to meet her initial burden on the issue of liability inasmuch as she failed to establish as a matter of law that she “could not have seen

2015We note that defendant moved for summary judgment dismissing the complaint or, in the alternative, for summary judgment dismissing the damages claim for decedent’s conscious pain and suffering, and we further note that plaintiffs attorney averred in his opposing attorney’s affirmation that plaintiff had “no objection to the portion of the motion dismissing the conscious pain and suffering claim.” With respect to her motion, we conclude that defendant failed to meet her initial burden on the issue of liability inasmuch as she failed to establish as a matter of law that she “could not have seen

2003As to the second cause of action which seeks damages only and pleads a violation of the Maine’s DTPA, defendants correctly urge that the damages claim must fall because only injunctive relief is available under that statute (Me Stat Ann, tit 10, § 1213; see, generally describing statute, Sebago Lake Camps, Inc. v Simpson, 434 A2d 519 [Sup Jud Ct Me 1981]).

2003As to the second cause of action which seeks damages only and pleads a violation of the Maine's DTPA, defendants correctly urge that the damages claim must fall because only injunctive relief is available under that statute (Me Stat Ann, tit 10, § 1213; see, generally describing statute, Sebago Lake Camps, Inc. v Simpson , 434 A2d 519 [Sup Jud Ct Me 1981]).

2015We note that defendant moved for summary judgment dismissing the complaint or, in the alternative, for summary judgment dismissing the damages claim for decedent’s conscious pain and suffering, and we further note that plaintiff’s attorney averred in his opposing attorney’s affirmation that plaintiff had “no objection to the portion of the motion dismissing the conscious pain and suffering claim.” With respect to her motion, we conclude that defendant failed to meet her initial burden on the issue of liability inasmuch as she failed to establish as a matter of law that she “could not have seen

2015We note that defendant moved for summary judgment dismissing the complaint or, in the alternative, for summary judgment dismissing the damages claim for decedent’s conscious pain and suffering, and we further note that plaintiffs attorney averred in his opposing attorney’s affirmation that plaintiff had “no objection to the portion of the motion dismissing the conscious pain and suffering claim.” With respect to her motion, we conclude that defendant failed to meet her initial burden on the issue of liability inasmuch as she failed to establish as a matter of law that she “could not have seen

2026Sufficiency of the Claim Pursuant to Court of Claims Act § 8-b (4) The Court now finally turns to the principal question of whether, as required by Court of Claims Act § 8-b (4), Mr. McDowell's claim and its attachments [FN10] have offered "facts in sufficient detail" for the Court to conclude that he will likely be able to prove two things at trial: that "he did not commit any of the acts charged in the accusatory instrument" and that "he did not by his own conduct cause or bring about his conviction." As the Court of Appeals has warned, "[t]he task facing a claimant who attempts to assert a

2026Sufficiency of the Claim Pursuant to Court of Claims Act § 8-b (4) The Court now finally turns to the principal question of whether, as required by Court of Claims Act § 8-b (4), Mr. McDowell's claim and its attachments [FN10] have offered "facts in sufficient detail" for the Court to conclude that he will likely be able to prove two things at trial: that "he did not commit any of the acts charged in the accusatory instrument" and that "he did not by his own conduct cause or bring about his conviction." As the Court of Appeals has warned, "[t]he task facing a claimant who attempts to assert a

2025We also reject the argument that plaintiff's damages claim is "speculative." "To survive a pre-answer motion to dismiss pursuant to CPLR 3211(a)(7), a pleading need only state allegations from which damages attributable to the defendant's conduct may reasonably be inferred" ( Fielding , 65 AD3d at 442 [internal quotation marks omitted]).

2024Respondent cites to J C Tarr, QPRT v Delsener ( 70 AD3d 774, 779 , 895 NYS2d 168, 173 [2nd Dep't 2010])(where complaint sought damages against the former owner personally, "joinder of the new owners rather than substitution would be appropriate"); and Levenson v Estate of Nick Laviero ( 50 Misc 3d 1221[A] , 31 NYS3d 921 [Sup Ct Ulster Co 2014])(joinder not substitution of new owner appropriate where plaintiffs had a damages claim against the prior owner).

2024Respondent cites to J C Tarr, QPRT v Delsener ( 70 AD3d 774, 779 , 895 NYS2d 168, 173 [2nd Dep't 2010])(where complaint sought damages against the former owner personally, "joinder of the new owners rather than substitution would be appropriate"); and Levenson v Estate of Nick Laviero ( 50 Misc 3d 1221[A] , 31 NYS3d 921 [Sup Ct Ulster Co 2014])(joinder not substitution of new owner appropriate where plaintiffs had a damages claim against the prior owner).

2022Corp. , 215 AD2d 191, 193 [1st Dept 1995]).

2020We therefore reject defendants' related contention that they are entitled to summary judgment dismissing the conversion cause of action because it was commenced outside of the one-year statute of limitations governing causes of action for wrongful eviction ( see Gold v Schuster , 264 AD2d 547, 549 [1st Dept 1999]; Chapman v Johnson , 39 AD2d 629, 629 [4th Dept 1972]; see generally CPLR 215 [3]).

2020Defendants cannot now, after having had a trial on the counterclaim, which resulted in its dismissal, seek summary judgment in their favor on that counterclaim ( see Ortiz v Jordan , 562 US 180, 184 [2011]).

2020Contrary to defendants' contention on their appeal, we conclude that they failed to establish as a matter of law that the conversion cause of action is merely a damages claim within plaintiff's wrongful eviction cause of action pursuant to RPAPL 853, which Supreme Court previously dismissed as untimely ( cf. Suarez v Axelrod Fingerhut & Dennis , 142 AD3d 819, 820 [1st Dept 2016]; Mayes v UVI Holdings , 280 AD2d 153, 161 [1st Dept 2001]).

2020We therefore reject defendants' related contention that they are entitled to summary judgment dismissing the conversion cause of action because it was commenced outside of the one-year statute of limitations governing causes of action for wrongful eviction ( see Gold v Schuster , 264 AD2d 547, 549 [1st Dept 1999]; Chapman v Johnson , 39 AD2d 629, 629 [4th Dept 1972]; see generally CPLR 215 [3]).

2020Contrary to defendants' contention on their appeal, we conclude that they failed to establish as a matter of law that the conversion cause of action is merely a damages claim within plaintiff's wrongful eviction cause of action pursuant to RPAPL 853, which Supreme Court previously dismissed as untimely ( cf. Suarez v Axelrod Fingerhut & Dennis , 142 AD3d 819, 820 [1st Dept 2016]; Mayes v UVI Holdings , 280 AD2d 153, 161 [1st Dept 2001]).

2015In any event, as plaintiffs correctly argue, “[n]ominal damages are always available in breach of contract actions.” (Kronos, Inc. v AVX Corp., 81 NY2d 90, 95 [1993].) .

2014In a separate line of cases subject to the broad notice provision of Education Law § 3813 (1), this Department has held that a claimant seeking only equitable relief need not file a notice of claim (see Kahn v New York City Dept. of Educ., 79 AD3d 521, 522 [1st Dept 2010] [challenging termination and asserting *84 due process claims pursuant to 42 USC § 1983 did not require filing a notice of claim under Education Law § 3813; petition was dismissed as it was time-barred], affd 18 NY3d 457 [2012]; 7 see also Civil Serv.

2014Commn., 290 AD2d at 172-173 [claim brought under the Human Rights Law seeking equitable relief and money damages for violations of the plaintiffs rights was subject to County Law § 52 notice requirement; Mills controlled and there was “no need to carve out an exception to the notice of claim rule” by dismissing the damages claim and leaving the equitable claims]).

2013He adopted as the measure of the Farrells’ actual damages the standard stated in Webster v Di Trapano ( 114 AD2d 698, 699 [3d Dept 1985])—i.e., “the difference between the contract price and the market value of the real property at the time of the breach.” The judge then reasoned that, in view of Ms. Roche’s deposition testimony that the property’s “market value at the time of the breach was, in fact, the same as the contract price,” the buyers (the Whites) had established that the sellers (the Farrells) did not suffer any actual damages on account of the buyers’ breach.

2011However, “a class action judgment ‘will as a rule bind only as to matters actually litigated and not necessarily those which merely might have been’ ” (Matter of Dvelis v New York State Dept. of Social Sevs., 146 AD2d 875, 877 [1989], lv denied 74 NY2d 608 [1989], quoting Siegel, NY Prac § 454, at 600; see Eliasof v Metropolitan Life Ins.