New York Contracts Legal Questions

It takes very little time (maybe a half-hour to an hour) to "draw up" a subpoena to appear as a witness, more if the subpoena asks the person to produce documents or other tangible things.  The amount of time it takes to serve the subpoena (you can't just mail it) depends on how easy it is to find the person, whether the person tries to avoid service, and, probably most important, how much you are willing to pay the process server.  Process servers charge more for expedited service.  At normal rates, it can take more than a week, even if there is no problem finding the witness.  However, you can't serve someone with a subpoena on Tuesday directing them to appear on Wednesday; you have to give them a reasonable amount of notice.  What is reasonable depends on the circumstances, but I would try to get the witness served at least two weeks in advance.... Read Answer

It appears to be a poorly drafted indemnity provision which is probably intended to make sure that if either party sustains any damages (legal fees, recall costs, etc.) due to the other party's wrongdoing in connection with the agreement, the wrongdoing party will pay those damages.  For example, if the distributor is sued because the products it is distributing for the manufacturer violate a third party's patent, this provision is intended to make sure that the manufacturer will pay the distributor's damages (legal fees, any damages awarded to the patent owner, etc.)  To me, the clause seems more vague and broad than it should be.... Read Answer

it means that just because one party allows a breach once or twice, it does not mean that they have waived their right to insist on full performance of that provision thereafter.  For example, if one party is supposed to pay money to the other on the 1st of each month, and the receiving party accepts late payment once or twice, that doesn't mean that he or she has waived his or her right to be paid on the 1st of the month in the future, or that future delays in payment will not be considered breaches of the contract.  You have to be careful, however, because in New York, a consistent  course of conduct (for example accepting payment on the fifth of each month) can create a waiver of the right to receive money on the 1st, despite the clause.  ... Read Answer

The statute of limitations has nothing to do with when the llc was dissolved, but rather what the nature of the claim is.  For example, the NY statute of limitations for breach of contract is 6 years from the breach, for fraud it is the longer of 6 years from the fraud or two years from when the person discovered or should have discovered the fraud, for defamation it is one year from the defamation, etc.... Read Answer

Under New York law, inheritances and gifts are separate property, not marital property.  However, if the home appreciates over the term of the marriage, that appreciation in value may become marital property.  Also, if the woman commingles the funds, by, for example, putting the money into a joint account with her fiance, it could become marital property (this result is less likely if she uses the money as a downpayment on a home that is owned jointly.)  These concerns can be obviated by a prenuptial agreement.... Read Answer

In consideration of receiving a good price, you agreed to book the venue without a prior taste test.  Unless the contract gave you the right to cancel if you were dissatisfied with the taste test, I don't think you have a right to cancel on that basis, although if you really became ill you might have a chance.  However, even if the contract provides that you must pay 75% of the wedding cost if you cancel, I'm not sure that this provision, known as a liquidated damages provision, would be enforceable.  In order for a liquidated damages provision to be enforceabel under NY law (I assume that both you and the venue are in NY) actual damages from a breach must not be readily ascertainable and the liquidated damages amount must be a reasonable attempt to approximate what the actual damages would be.  I'm not sure that this clause meets either requirement.  If the venue is unable to rebook another party, damages would be the amount you were to pay minus the expenses the venue saved by your cancellation (unless it was considered what is known as a lost volume seller, but I don't want to get too technical here.)  If it was able to rebook another party, the venue may have no damages or, if it received less than it would have from you, its damages would be the difference minus any saved costs.  With regard to "reasonable approximation", I can't believe the venue operates on a 75% profit margin.  Let's say that you agreed to pay $20,000 for the venue.  It would have to expend money on food, liquor, waiters, heat (or air conditioning), valets, chefs, etc., all of which it will save if you cancel, even assuming that it can't rebook a party in 9 months.  I don't believe that these expenses do not come to well more than 25% of the total price.... Read Answer

Normally, the funeral expenses come out of the estate of the deceased.  If your father had a will, it would normally have a provision about how funeral expenses are to be paid, normally from the residuary estate.  While technically you probably have no liability for the funeral expenses, in practice you do, because unless your father left an unusual will, your share of the estate would be reduced by the estate paying for the funeral.  If your grandmother signed the contract with the funeral  home, she will have to pay on that contract, but she may turn around and seek to be reimbursed from the estate, and might have a good claim (although the estate should not have to pay for any extravagances that the beneficiaries did not agree to.)... Read Answer

The statute of limitations on a breach of contract claim generally runs from when the contract was breached.  In NY, the statute of limitations is 6 years, except for sales contracts falling within article 2 of the UCC, in which case the statute of limitations is 4 years.  If the contract was a continuing one, and was repeatedly breached, each breach has a separate limitations period.  Thus, for example, let's say you breached a contract by failing to make payments in February, 2008 and July, 2008.  The statute of limitations would have run out on the February, 2008 breach, but you could still be sued for the July, 2008 breach.... Read Answer

I don't think that this could be considered duress sufficient to void the contract.  You wanted more aid, the school wanted a quick decision, and bargained for it in exchange for the aid you wanted.  I don't see how this is different from any other contract negotiations - I'll hire you but only if you agree not to compete with me for a year after your employment ends; I'll loan you the money, but only if you agree to pay me back with 10% interest and secure the loan with a lien on your house; I'll sell you car insurance at a low rate, but only if you agree to insure your house with me as well.... Read Answer

As a general matter, you can sue someone in Kansas if they have sufficient contacts with Kansas so that it would not violate the constitution for them to be sued there.  Most states allow suits in their jurisdictions if the defendant has allegedly committed a tort out of state which he/she/it knew would cause damage within the state.  This seems like it might apply to your situation. You could also hire a New York attorney to sue this person in New York.  Although the attorney could handle a great deal of what needed to be done alone, you would need to appear for deposition, if the other side seeks to depose you, and for trial, if a trial is necessary.  You would also be needed to help respond to discovery requests, although you could do that from your home.  Moreover, given the small amount involved (this claim would fall well within the jurisdiction of the small claims court in New York, which can hear claims up to $6000), the other side may not spend any money conducting depositions or other discovery, and it is possible that you may be able to obtain a summary judgment without need of trial. However, given the small amount involved, it seems very unlikely to me that any attorney would agree to represent you on a contingency, i.e. charge you nothing except a share of your recovery. Dear Mr. Kornelson:  Thank you very much for your kind words.  I'm adding this to my prior answer because the site won't allow me to respond again.  Under the UCC, the limitations period for breach of a contract for the sale of goods is 4 years, and this would apply whether NY or Kansas law is applied.  The NY statute of limitations for fraud is the later of 6 years or 2 years from when the fraud was or should have been discovered.  I don't think you can file papers electronically in small claims court, but I think you can file by mail.  Much of what you mention (info subpoenas, for example) would not need to be filed, only served on the judgment debtor.   ... Read Answer

The discussion concerning a work order that affects such a substantial contract should not be reduced to an opinion being given in this forum, without the opportunity to review both the agreement and the work order- you should consult with a qualified attorney who can review same and then offer an opinion. Gerry Wendrovsky, Esq.- Upper West Side Business Lawyer www.upperwestsidelawyer.com... Read Answer

You are required to obey the ruling of any court which has jurisdiction over you.  If you signed a contract specifying that you could be sued in Utah, the Utah court would have jurisdiction over you unless (a) you can show that the contract is somehow invalid (i.e. you were defrauded into signing it, signed it under duress, were too young to contract when you signed it, etc.) AND that Utah would not otherwise have jurisdiction over you, i.e. that you do not have sufficient contacts with Utah for it to exercise jurisdiction over you without violating the Constitution (it is also possible that Utah has a long arm jurisdiction statute that is more restrictive than the Constitution requires).  Given that you entered into a business transaction with a Utah company and sent funds to Utah in connection with that transaction, and that this transaction is the subject of the lawsuit, it is likely that Utah can exercise jurisdiction over you.  At any rate, you certainly can't take the chance that jurisdiction will later be found to have been lacking. As for arbitration, generally arbitration awards are not binding until and unless they are confirmed by a Court (although again I am not familiar with the specific law of Utah.)  However, such awards are routinely confirmed, as the grounds for contesting the awards are extremely narrow.  If you lost the arbitration, you would not get the chance to relitigate the merits of the dispute in Court.  If you signed an agreement agreeing to arbitrate any dispute in Utah, again you would have to show that that agreement was invalid for some reason to avoid doing so. Theoretically, even if a Utah can exercise jurisdiction over you, you might be able to get any lawsuit moved to a different location if you can show that another jurisdiction is a more appropriate one for the dispute.  However, based on the facts as I understand them (i.e. Utah is the home state of one of the two parties, other than you, all the witnesses in the case are likely Utah residents, etc.) I doubt very much that you would succeed in such a motion, particularly if you have signed an agreement to litigate or arbitrate in Utah.... Read Answer

Sue her in North Carolina.  Since the contract in dispute was negotiated and performed partly in North Carolina, and she collected payment from a North Carolina bank account (I assume), this may be sufficient to confer jurisdiction over her upon the North Carolina courts, even if she has no other contact with NC.  Another option would be to hire a New York lawyer to sue  her in NY, but that would probably require you to testify in NY at some point.   Ditto if you assigned  your claim to a friend in NY; a non-lawyer could not represent you (actually this might be allowed in small claims court, I am not sure), but he/she could buy your claim and represent  himself or herself.... Read Answer

It depends on the type of verbal agreement.  Most agreements do not have to be in writing to be enforceable, but some (such as contracts for the sale of real property, for the sale of goods over $500, contracts which can't be performed within a year, etc.) are required to be in writing (although there are some circumstances under which this requirement might not apply).  If your contract is not one which is required to be in writing, your evidence would be your testimony.  If the Court believes you, you have a good chance of winning.... Read Answer

Your obligation can be excused if Honda agreed to excuse it, but why would Honda do so?  Perhaps if your ex found another co-signer who was in better financial condition than you, Honda would prefer to swap his/her/its guarantee for yours, but that is an unlikely scenario.  Alternatively, maybe your ex could find someone who would agree to indemnify you if you had to pay Honda, although I don't know why anyone would undertake that obligation voluntarily.  You would still be obligated to Honda, but you might feel more secure if you had another party, apart from your ex, whom you could look to to reimburse you for any money you had to pay Honda.... Read Answer

To me, the retainer is just saying that the attorney will help to find the proper experts, not that the attorney will pay for those experts.  Indeed, I believe that the attorney would violate his/her ethical obligations by paying for an expert, as an attorney is not allowed to promote litigation (a form of champerty).  Thus, even where the attorney is on contingency and takes no fee except a share of what the client receives, the client is still responsible for filing fees, court reporter fees, copying costs, expert fees, etc.... Read Answer

There may be a problem getting such an affidavit admitted into evidence, since, depending on exactly what x is testifying to, it could be considered hearsay, that is, it could be considered an out of court statement offered for the truth of the matter asserted.  A has had no opportunity to cross-examine X.  Of course, some hearsay exception might apply which is not apparent on the face of your email.  For example, in  a similar situation, I was able to offer similar testimony as a verbal act, because the testimony's relevance was that A accepted B's offer, and not the actual words he used to do so. I'm not sure what you're asking about when you ask about establishing foundation.  If you're asking whether the authenticity of the document is established by its contents, the answer would be no.  The fact that the document states that x saw A and B contract does not establish that the document was actually sworn to by X.  If X did not testify, you would probably have to get the notary or someone familiar with X's signature to authenticate the affidavit. If you are asking whether the affidavit is evicence that a contract was formed, your question seems circular to me.  Assuming you get around any hearsay or authentication problems, the affidavit would still only be admissible if it was relevant, and would only be relevant if it tended to demonstrate that a contract had been formed.  In other words, the affidavit would only be admissible in the first place if it was evidence that a contract had been formed.... Read Answer

It would be necessary to review the HOA by laws to see what the members need to approve as well as the power that the officers of the HOA have. Also, did the entity that did the paving have a copy of the by laws or a written agreement concerning the project and payment for it. Absent knowing the answers to the questions asked and/or implied by the foregoing, it is uncertain what the liability of the members of the HOA might be. This is not intended to be legal advice, and is general in nature. No attorney-client relationship exists or is formed by this information. Furthermore, this does not represent the views or opinions of LexisNexis or its affiliated companies.... Read Answer

There is no way to tell if you can cancel the agreement without knowing what, if any, cancellation terms it provides.  If the agreement provides that you are obligated to continue with the training services for 12 months unless you cancel it within 30 days, than the trainer is within his rights in insisting that you continue to perform for 12 months.... Read Answer

The answer depends on many factors, including: Was the contract of a type which is required to be in writing (most are not), or did the parties contemplate that their agreement would not be enforceable until it was reduced to writing and signed by all parties? Is the contract of a type which needed all 4 people, or could it be performed with only the three who signed? Did any of the signatories have authority, or apparent or implied authority, to bind the non-signatory? Did the non-signatory subsequently ratify the agreement, either expressly or by conduct? Did the parties perform, in whole or part, under the agreement? Moreover, the answers to some of these questions may not be clear cut, or may be the subject of dispute.  For example, one side may say "we had a verbal agreement" while the other may say "we all intended that the agreement would not be valid until everyone signed".  Bottom line is that the answer is not clear, at least based on the facts contained in your question.... Read Answer