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Recent Firm Publications

March 2020

Contractual Impossibility and Frustration of Purpose in the Face of the COVID-19 Epidemic
By Lisa Bentley

The outbreak of the global epidemic now known as COVID-19, which has come to be all too familiar to us in the past few weeks, is a story that has only just begun. As many of us watch this current health and economic calamity unfold, it is simply not clear at this point what the myriad of long-term effects of the virus will be on our world.

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February 2020

Aguilar Bentley Secures Unanimous Reversal from the New York Appellate Division, First Department

On February 11, 2020, in J. Carlo Cannell et al. v. Grail Partners LLC, Appellate No. 2018-4352 (Index No. 652735/2018), the New York State Appellate Division, First Department, ruled unanimously in favor of Aguilar Bentley’s investment firm client, Grail Partners, holding that the lower court erred in awarding a judgment against Grail Partners for over one million dollars.

In October 2018, the trial court had issued a judgment against Grail Partners after plaintiffs filed a motion for summary in judgment in lieu of complaint, a unique procedural mechanism available in New York state court, allowing for an accelerated process to obtain a judgment in cases where an “instrument for the payment of money only” is at issue. This procedural device is often used in matters involving the enforcement of promissory notes, as was the case here. The lower court had issued a million-dollar judgment in favor of the plaintiffs four months after the motion was filed, finding that three separate promissory notes were in default.

Aguilar Bentley was retained after that judgment was entered, and filed an appeal on the grounds that the lower court had awarded damages for breaches that had occurred prior to the expiration of the six-year statute of limitations, which applies to breach of contract cases in New York. The appeal was argued in October 2019, and the unanimous reversal was granted in February 2020. The Appellate Division held that separate causes of action had accrued each time an installment payment was missed. Because six of the installment payments were missed prior to June 1, 2012­ ­–– ­six years before the date plaintiffs filed their case ­­–– those breaches were deemed time-barred, as argued by Aguilar Bentley in the appeal. Though plaintiffs had argued that their notice of acceleration of the debt in 2013 had the effect of reaching back in time to make the entire balance due, that argument was rebutted by Aguilar Bentley, which argued that acceleration only works to make the remaining balance due; it does not reset the statute of limitations for prior missed installment payments. The Appellate Division agreed, reversing the lower court’s decision and remanding the case for a recalculation of damages.

Aguilar Bentley and its client are very pleased with this decision, which has the effect of reducing damages by more than sixty-percent.


January 24, 2017

Aguilar Quoted in Article Regarding Enforceability of Non-Competes,” and then provide the following link to the article:

Businesses of all stripes rely on non-compete agreements (NCAs) to protect their intellectual property (IP) from former employees. However, innovation companies must remain vigilant in their use because state laws can vary widely regarding what to allow.

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April 4, 2016

Actions by Insureds Against Brokers: “Special Relationships” Since “Voss”

Two years ago, the New York Court of Appeals issued its seminal decision in Voss v. The Netherlands Insurance Company, which put some teeth into the concept of a “special relationship” between an insurance broker and an insured. The Voss court held that a broker could be subject to liability for negligence or other tort claims where such liability would be unattainable in the typical broker-insured relationship. Since the Voss decision, courts in New York have considered the “special relationship” concept enunciated in Voss a number of times. This article examines the state of the law on the “special relationship” between brokers and their clients following the two-year anniversary of Voss.

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