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One Way (Albeit Rare) to Recover Your Legal Fees in NY: Frivolous Conduct
As noted elsewhere (see, e.g., Why Its So Hard to Recover Legal Fees in a NY Breach of Contract Case), the general rule in New York is that you cannot recover the costs youve incurred to defend a lawsuit that has been brought against you. Of course, there are some exceptions to that rule, the most prevalent being where the two sides to the litigation had previously entered into a written agreement that provided for either side to recover their legal fees. There is another limited exception to that rule: where the court determines that your adversary has engaged in frivolous conduct.
You should never assume that a court will make you whole for defending a lawsuit that you personally deem frivolous.
So what constitutes frivolous conduct under New York law? Fortunately, it is defined by Uniform Court Rule 130-1.1 (c), which provides, in pertinent part, as follows: (c) For purposes of this Part, conduct is frivolous if: (1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false. As noted in the title to this article, however, it is extraordinarily rare that a New York State court will award costs and/or sanctions against the other side to a particular litigation. Therefore, you should never assume that a court will make you whole for defending a lawsuit that you personally deem frivolous.
This publication is intended to educate small businesses and individuals about general litigation matters, as well as personal injury and defective product issues. It is not intended to be legal advice, and does not constitute an attorney-client relationship until we have a written agreement. To discuss your particular issues or case, please contact the Law Offices of Jonathan Cooper at 516.791.5700.
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After Bullied Student Retaliates, School Responds By Expelling Him
contd from page 1
emotionally for being a "book worm" with a nervous habit, and having the school repeatedly ignore his calls for help, this student finally responded to two of his attackers in a by picking up a screwdriver and threatening: "I've had enough. If you leave me alone, I'll leave you alone." The school's response: they expelled the student who was being bullied; the It seems very clear that the school had other students - it seems - were left alone. To be sure, a student who threatens other students with a screwdriver should be severely disciplined - and perhaps expelled. On the other hand, it also appears that he has now been victimized again - but this time by the educational institution itself rather than its student body; in effect, the school has chosen to penalize this student yet again for the school's own negligence in failing to adopt and enforce a zero tolerance policy for bullying. Stated differently, it seems very clear that the school - had it been discharging its responsibility to this student's safety properly could very well have prevented this incident from occurring. And for that reason - and on policy grounds - I think that the school should be deemed negligent and held accountable as a matter of law. COMMUNICATION POLICY: As a general rule, Mr. Cooper does not accept unscheduled phone calls. This policy affords
Mr. Cooper the ability to pay closer and more focused attention to each case, resulting in more efficient and effective representation for his clients. Moreover, it avoids the endless and needless game of phone tag played by most businesses and law firms. To schedule a phone call or in-person appointment with Mr. Cooper, please call his office at 516.791.5700.
it been discharging its responsibility for this students safety could very well have prevented this incident from occurring.
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When New Yorks Courts Will Uphold Liquidated Damages for Breach of a Non-Compete Agreement
Although most non-compete agreements that I've seen do not have such a provision, there are some employers who've gone to the trouble of inserting a clause in the contract stating that in the event that the employee breaches the non-compete (or, in legalese, "restrictive covenant"), he may be liable for a multiple of the billable work generated by the client that over the past year - and that has now been lost to the company/employer. So, here's the question: is such a provision an enforceable liquidated damages clause, or is it an unenforceable penalty insofar as New York law is concerned? Unfortunately, there really isn't a clear-cut answer, or bright-line test because each such clause turns on its own unique facts. That said, New York State's highest court has weighed in on the factors that the courts must look to in order to determine whether the particular liquidated damages clause is enforceable or not, stating: "Liquidated damages provisions, under our precedents, are valid if the "damages flowing from a breach are difficult to ascertain [and under] a provision fixing the damages in advance * * * the amount is a reasonable measure of the anticipated probable harm" (City of Rye v Public Serv. Mut. Ins. Co., 34 NY2d 470, 473). On the other hand, if "the amount fixed is plainly or grossly disproportionate to the probable loss, the provision calls for a penalty and will not be enforced" (Truck Rent-A-Ctr. v Puritan Farms 2nd, 41 NY2d 420, 425)."