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Special Situations Fund III v. Attunity, Ltd.

Appellate Division of the Supreme Court of New York, First Department
Jan 20, 2004
3 A.D.3d 408 (N.Y. App. Div. 2004)

Opinion

2712.

Decided January 20, 2004.

Judgment, Supreme Court, New York County (Ira Gammerman J.), entered April 17, 2003, which, upon a jury verdict, awarded plaintiffs $603,333.33 in liquidated damages for defendant's failure to file a Registration Statement with the Securities and Exchange Commission and have it declared effective within the deadlines set by the parties' contract, unanimously affirmed, with costs.

Gavin J. Rooney, for Plaintiffs-Respondents.

Jeffrey S. Boxer, for Defendant-Appellant.

Before: Buckley, P.J., Mazzarelli, Saxe, Sullivan, Rosenberger, JJ.


Mosler Safe Co. v. Maiden Lane Safe Deposit Co. ( 199 N.Y. 479) established the general rule that where delays are caused by the mutual fault of the parties to a contract, a liquidated damage clause is abrogated and a claimant must resort to recovery for actual damages. It would be inequitable and illogical to allow a claimant to reap the benefit of the liquidated damage clause for its own wrongdoing ( cf. X.L.O. Concrete Corp. v. John T. Brady Co., 66 N.Y.2d 970, affg 104 A.D.2d 181). Applying this rationale to the circumstances herein, the trial court correctly instructed the jury that the liquidated damage clause would be abrogated only if plaintiffs' conduct with respect to certain specific acts allegedly contributing to the delays was wrongful or arbitrary and capricious. In any event, the record does not support a finding that plaintiffs' actions materially contributed to the delays ( see P.T. L. Constr. Co. v. State of New York, 179 A.D.2d 850).

We have considered defendant's other arguments and find them unpersuasive.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.


Summaries of

Special Situations Fund III v. Attunity, Ltd.

Appellate Division of the Supreme Court of New York, First Department
Jan 20, 2004
3 A.D.3d 408 (N.Y. App. Div. 2004)
Case details for

Special Situations Fund III v. Attunity, Ltd.

Case Details

Full title:SPECIAL SITUATIONS FUND III, L.P., ET AL., Plaintiffs-Respondents, v…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Jan 20, 2004

Citations

3 A.D.3d 408 (N.Y. App. Div. 2004)
770 N.Y.S.2d 619