In the case of Truist Equipment Finance Corp. v. Tebele, 2025 NY Slip Op 35031(U), the New York court held that a forbearance agreement, entered into between a lender and a borrower regarding the borrower's pre-existing loan, did not transform the Guaranty (personal guarantee) into an instrument outside the scope of...
Category: Contract interpretation
CPA firms’ Statute of Limitations for Malpractice . . . when does it start?
The answer to that question is: not on the date that an accountant/auditor submits a draft copy of a report that becomes the basis for the client's* malpractice claim against the accountant/auditor.
In Sirius XM Radio LLC v. Adeptus Partners, LLC (2025 NY Slip Op 34214(U), Index No....
CPA firms’ engagement letters . . . consider including the right to resign “at any time” . . . and consider also including . . .
In Hyros, Inc. v. Marcum, LLP, Index No. 653718/2023 the court upheld Marcum LLP's right to terminate its contractual relationship with its client pursuant to either of the two clauses in Marcum LLP's engagement letter: (i) "the right to terminate [the] services at any time" and (ii) [Marcum] "may resign from the...
CPA firms’ non-compete clauses . . . less is more . . . time to re-examine their scope
On May 13, 2025, a New York court (Prager Metis CPAs LLC v. Koenig, Index No. 652000/2023) held that the non-compete/client non-solicitation clauses (often referred to as 'restrictive covenants') in a CPA firm's employment contract with its CPA employee were too broad (thus, unreasonable) and, therefore, granted summary judgment (without trial)...
Boilerplate clauses in contracts . . . are not “Miscellaneous”
Article published in the American Bar Association - Business Law Today
https://businesslawtoday.org/2025/04/perils-and-delights-of-contractual-boilerplate
M&A intermediaries . . . beware of time bombs hiding in confidentiality clauses in Seller/Target company contracts
In AriZona Beverages USA, LLC v. Evercore, Inc., (Sup. Ct., Nassau Cnty,. Aug. 27, 2024) (Index #608480/2024), the Court held that a merger and acquisitions intermediary (which was acting as a broker between a prospective seller and prospective buyers) breached a confidentiality clause that was in a contract between the seller...
Promissory Notes and Personal Guaranties – “magic words” satisfy expedited collection under CPLR 3213
One of the benefits of being owed money under a promissory note (and, when applicable, a personal guaranty(ee)), in contrast to being owed money under an ordinary contract, is that the lender can qualify for an expedited procedure for collecting the debt under CPLR 3213. To qualify for CPLR 3213, the instrument...
When Can the Covenant of Good Faith and Fair Dealing Be Invoked? (ABA article)
https://businesslawtoday.org/2024/02/when-can-the-covenant-of-good-faith-and-fair-dealing-be-invoked
Contract is enforceable even if the price/fee to be paid is not specific . . . “sufficiently definite” satisfies the required legal standard
In Daiwa Corporate Advisory LLC v. Katapult Group, Inc. (NY County Supreme Court, Index No. 652164/2021), the trial court held that a contract is enforceable where the fees payable were to be “mutually-agreed” based on “customary and . . . similar transactions and practices in the investment banking industry.”
“Willful misconduct”– a commonly used term in contracts does not mean what you think it means
In Manhattan Chrystie St. Dev. Fund LLC v. Witkoff Group LLC (2023 NY Slip Op 50622(U), 2023 N.Y. Misc. LEXIS 3056), a New York trial court analyzed the meaning of the term "willful misconduct" in a commercial contract (specifically, a guaranty) governed by Delaware law.
The trial court generally...