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  • NEW YORK, NYKI Legal and client​ – Koutsoudakis & Iakovou Law Group, PLLC (d/b/a “KI Legal”), represented by Co-Founders Andreas Koutsoudakis and Michael Iakovou, and Liakas Law P.C., represented by Senior Partner Nicholas Liakas and Supervising Partner Scott A. Steinberg, hosted a press conference on Monday, May 20, 2024, announcing the filing of a lawsuit on behalf of four firefighters from Ladder Company 84 and Engine Company 168 – Lieutenant Bill Doody, Firefighter Michael Guidera, Firefighter Kwabena Brentuo, and Firefighter John Sarnes – who nearly lost their lives in a blaze on February 17, 2023. The four-alarm fire began at a single-family home on Shotwell Ave but ultimately spread to neighboring homes due to heavy winds. The closest firehouse, Ladder Company 167, was closed for annual medical exams as per FDNY policy. This left the responding firefighters short-handed and delayed the response. This FDNY policy includes periodic closures of firehouses for medical exams and training, which contributed to the severity of the situation. All four injured firefighters are seeking $20 million in damages and a change in policy.

    “As a native Staten Islander, when this matter was first brought to my attention, I felt a strong need to step in immediately. This could’ve been my house, my family, my neighborhood that was impacted. This story is innately close to home, so to realize that the firefighters in my community, and across the City of New York, are rushing into raging blazes, and that this type of situation could be prevented, is what is motivating our taking on this case. Real-life heroes don’t wear capes; they wear 50 pounds of gear and run into burning buildings. While people run away from danger, our firefighters run towards it to protect the public.” said KI Legal Personal Injury Co-Founder Andreas Koutsoudakis. “The City of New York should be implementing common sense policies to ensure that our bravest are protected, not implementing nonsensical policies that put them in harm’s way. The policy of closing firehouses for required physicals without replacements is a dangerous policy that increases the likelihood that our firefighters will be placed in harm’s way. Our clients suffered life-altering injuries as a result of this policy. We look forward to fighting vigorously in Court on their behalf so that they can be compensated for their injuries and to ensure that the same does not occur to any other firefighters.”

    The lawsuits, on behalf of the plaintiffs, have been filed in Richmond County Supreme Court. For further reference, the index numbers are: 151001/2024; 151002/2024; 151003/2024; and 151004/2024.

    KI Legal and Liakas Law Announce Filing of Lawsuit Against the City of New York on Behalf of Staten Island Firefighters
    Firm News,  Personal Injury
  • A real estate development generally progresses through the following stages before construction can begin:

    1. Project planning;
    2. Forming an investment entity;
    3. Negotiating the development agreement;
    4. Negotiating the land acquisition and performing due diligence;
    5. Land use, zoning, and regulatory compliance;
    6. Retaining the contractor;
    7. Securing the financing; and
    8. Closing the acquisition and financing.

    A commercial real estate development project typically begins with a real estate developer who formulates and oversees a project from inception through completion. One consideration that a developer typically analyzes is the geographic area in which the development is located. To do so, the developer typically obtains a commercial real estate broker to assist in selecting the best location for the development. Commercial brokers often have access to large databases containing information about potential properties and development locations, including details on the demographics, price, recent sales, and much more.

    Once a developer identifies a potential development site, the due diligence phase begins. The preliminary due diligence phase determines the project’s feasibility prior to negotiating a letter of intent or term sheet to purchase the land.

    The negotiation aspect of the land acquisition usually coincides with the formation of the investment entity and any joint venture and development agreements, if applicable. If the developer has the financial means, then they may sign a purchase agreement or acquire the land before the investors are committed to development, if the project is to become a joint venture.

    What is a joint venture agreement? A joint venture agreement specifies the terms on which investors agree to provide capital for a development project, how that capital will be repaid, and how the various parties will each have a role in the conduct of the entity’s business and management of the project. When a joint venture agreement is drafted for a development project, it often contains financial arrangements between the developer and the investor. Many times, these arrangements involve a development fee and the promote payment structure. What is a development fee? A development fee represents the compensation paid to the developer throughout the construction period. What is the promote? The promote is the disproportionate share of profits paid to the developer following the repayment of capital plus a negotiated return to the investors.

    Now, what are purchase and sale agreements? Purchase and sale agreements encompass the many various deal points associated with the acquisition of the land underlying the development, which deal points may include:

    1. Seller’s representations regarding the property,
    2. Expiration of the due diligence period, and
    3. The purchaser’s closing contingencies.

    The representations regarding the property include representations that the seller has made about the property and the condition of the buildings on the property (if any) in addition to any known historical information about the property. As for due diligence periods, they are often included as points in purchase and sale agreements, as it is essential that the real estate developer has the opportunity to analyze the property and ensure it is fit for the intended development. Due diligence periods are also used to allow a developer to obtain zoning variances or other land approvals and potentially secure construction financing and engage contractors, architects, and other consultants.

    A development agreement is typically entered into between an affiliate of the developer and the property owning-entity. As the developer is often also a partner in the joint venture that owns the land on which the development is taking place, the developer must wear two different hats in the development process. The roles set forth in the development agreement set out the developer’s specific responsibilities as a contractor and building during the construction process and the development agreement also provides the limits on the developer’s authority during this construction period.

    One development aspect that often presents many unknowns, and that is time consuming and resource-intensive, is the zoning and land use compliance process. Developers must understand the federal, state, and local laws and regulations regarding zoning, environmental compliance, building and fire codes, and construction labor. This aspect of the due diligence process can take weeks, sometimes years, to complete.

    The last stage of the development process before breaking ground is the closing of the land acquisition, which may involve financing transactions. Considering all the fluctuating factors that occur during a real estate development deal, there is no “typical deal,” but rather just what is considered to be standard during a deal.

    As can be seen, it is crucial that you fully understand the various stages of development that take place before construction begins if you are involved, or want to be involved, in a commercial real estate development. KI Legal’s real estate attorneys are well versed in these matters and are prepared to help guide you through the process. For more information on commercial real estate developments, or for help with your particular real estate venture at hand, contact us at (212) 404-8644 or email info@kilegal.com to discuss.

    This information is the most up to date news available as of the date posted. Please be advised that any information posted on the KI Legal Blog or Social Channels is being supplied for informational purposes only and is subject to change at any time. For more information, and clarity surrounding your individual organization or current situation, contact a member of the KI Legal team.

    KI Legal focuses on guiding companies and businesses throughout the entire legal spectrum. KI Legal’s services generally fall under three broad-based practice group areas: Transactions, Litigation and General Counsel. Its extensive client base is primarily made up of real estate developers, managers, owners and operators, lending institutions, restaurant and hospitality groups, construction companies, investment funds, and asset management firms. KI Legal’s unwavering reputation for diligent and thoughtful representation has been established and sustained by its strong team of reputable attorneys and staff. For the latest updates, follow KI Legal on LinkedIn, Facebook, and Instagram. For more information, visit kilegal.com.

    Commercial Real Estate Developments 101
    Development and Finance,  Real Estate and Finance
  • New York City has long been the center of business and commerce, not only in the country but in the entire world. Because of this, New York has a long legal history of business litigation and case law regarding several business torts. Among the most common of these torts is fraud. Fraud may be committed throughout the course of business dealings, for example, during contract disputes and negotiations as well as during the purchase and sale of assets.[1] Claims of fraud may take several forms, but in this article, we will discuss fraud via negligent misrepresentation. What is negligent misrepresentation? Negligent misrepresentation occurs when one party makes an inaccurate or deceptive statement when negotiating, and the false or deceptive statement is used to persuade the innocent person into entering into a contract.

    New York courts have established that “a claim for negligent misrepresentation requires the plaintiff to demonstrate

    1. The existence of a special or privity-like relationship imposing a duty on the defendant or privity-like relationship imposing a duty on the defendant to impart correct information to the plaintiff;
    2. That the imparted information was incorrect; and
    3. Reasonable reliance on that information.”[2]

    In order to prove a claim for negligent misrepresentation, the plaintiff must show that there was a relationship between plaintiff and defendant in which a duty was owed. Oftentimes, this duty is created through a contractual obligation, or if no contract exists, when there is a traditionally recognized fiduciary or confidential relationship between parties.[3] Without an existing contract, some of the relationships that would allow for a claim of negligent misrepresentation to be brought are of that between clients and attorneys, accountants, and in some cases even professional consultants.[4] The policy reason for needing a contractual or fiduciary duty in order to prevail on a claim for negligent misrepresentation is that it restricts liability to specific relationships. These are relationships where one party is put in a position of higher trust in comparison to an ordinary arm’s length business dealing or transaction.

    Intent to defraud the plaintiff or misrepresent facts is not necessary to succeed on this claim. Unlike common law fraud, there must have only been a false statement or misrepresentation made by the defendant to the plaintiff, which the plaintiff then relied on and acted upon.[5] No intent is necessary because the contractual and/or fiduciary duty that is essential to this claim creates a legal duty in lieu of intent.[6] Liability for negligent misrepresentation exists where a defendant possesses unique or specialized expertise which the plaintiff would reasonably rely on.[7] Because of this imbalance in knowledge, courts have found it just that the plaintiff should recover damages when a defendant provides a plaintiff with faulty information. If this duty is not protected and enforced by the courts, then no duty would exist in the first place. Thus, it is necessary to protect such rights of the plaintiff, to also protect the legitimacy of both contractual, fiduciary, and confidential relationships.

    It is important that you are aware of the legal hurdles and dangers that may await your business. For help navigating business torts, contracts, and prospective dealings, contact KI Legal’s knowledgeable corporate governance attorneys so our team can help protect your business and interests. Call (212) 404-8644 or submit a contact form on our website at kilegal.com today.

    This information is the most up to date news available as of the date posted. Please be advised that any information posted on the KI Legal Blog or Social Channels is being supplied for informational purposes only and is subject to change at any time. For more information, and clarity surrounding your individual organization or current situation, contact a member of the KI Legal team.

    _____________________________________________________________________________________

    KI Legal focuses on guiding companies and businesses throughout the entire legal spectrum. KI Legal’s services generally fall under three broad-based practice group areas: Transactions, Litigation and General Counsel. Its extensive client base is primarily made up of real estate developers, managers, owners and operators, lending institutions, restaurant and hospitality groups, construction companies, investment funds, and asset management firms. KI Legal’s unwavering reputation for diligent and thoughtful representation has been established and sustained by its strong team of reputable attorneys and staff. For the latest updates, follow KI Legal on LinkedIn, Facebook, and Instagram. For more information, visit kilegal.com.

     

    [1] Omid H. Nasab, 2022 in New York Business Litigation 469–489, 476 (2022).

    [2] J.A.O. Acquisition Corp. v. Stavitsky, 863 N.E.2d 585, 587 (2007).

    [3] Parrot v. Cooper & Lybrand, LLP, 741 N.E.2d 506, 508 (2000).

    [4] See Ossining Union Free Sch. Dist. v. Anderson, 539 N.E.2d 91 (1989) (finding that engineering consultants were liable for negligent misrepresentation regarding their analysis on the structural integrity of a building).

    [5] See J.A.O. Acquisition Corp. (2007).

    [6] See Nasab (2022).

    [7] Id.

    Business Fraud in NY: Negligent Misrepresentation
    Business Fraud
  • A defendant faced with a breach of contract claim in New York has a few different defenses available to them. Here, we will address certain defenses specifically as they relate to contract formation, performance, damages, and procedural defenses.

    Contract Formation

    Ambiguity

    A defendant can assert ambiguity as a defense to the formation of a contract where the contractual provision in question is ambiguous and the defendant believes his interpretation is correct. A contract term is ambiguous if it lacks a precise meaning, can be interpreted to mean more than one thing, or provides a reasonable basis for a difference of opinion.

    Duress

    Next, a defendant may also assert duress as a defense where the plaintiff made wrongful threats to the defendant, the threats coerced the defendant to agree to contract terms, the defendant promptly repudiated or did not otherwise ratify the contract, the defendant had no other reasonable alternative but to accept the contract terms, and ordinary breach remedies are inadequate to protect the defendant.

    Mistake

    Mistake is another defense a defendant may assert, which can be mutual or unilateral. A mutual mistake occurs when both parties had erroneous beliefs at the time of contracting that certain material facts were true, the mistake existed when the contract was entered into, and it was so substantial that it goes to the heart of the parties’ agreement. A unilateral mistake occurs when the defendant alone had an erroneous belief of certain material facts at the time of contracting, the defendant’s consent to the contract was induced by fraud or some other wrongdoing, and the mistake was not caused by the defendant’s own negligence, it existed when the parties entered into the agreement, and was so substantial that it goes to the heart of the agreement.

    Contract Performance

    Accord and Satisfaction

    A defendant can assert accord and satisfaction where there is a genuine dispute concerning the defendant’s obligations, the plaintiff agreed to accept from the defendant something different than the original obligations, and the plaintiff accepted the new agreement by express or implied conduct.

    Relinquishment of Known Contractual Right

    Also, a defendant may defend against a breach of contract action where the plaintiff intentionally and voluntarily relinquished a known contractual right, in other words, waived his right under a contract, and that but for the waiver, the contractual right would have been enforceable.

    Damages Defenses

    Duplicative Damages

    A defendant may be able to assert a challenge to the damages award sought by plaintiff if the damages are duplicative of those sought for another claim, such are where tort claims seek the same damages as those for breach of contract claims.

    Double Recovery

    Also, a defendant may be able to challenge the damages sought by plaintiff if the award would result in double recovery for the same loss or the damages are superseded by a liquidated damages clause in the contract.

    Plaintiff's Duty to Mitigate Damages

    Additionally, a plaintiff has a duty to mitigate damages and a failure to do so may give defendant a viable defense. Specifically, the defense is available if plaintiff failed to mitigate damages where the plaintiff did not take reasonably necessary and available steps to minimize injury and reduce its damages, and the contract, a statute, or case law does not eliminate the duty to mitigate.

    Procedural Defenses

    Statute of Limitations

    Defendant may assert the statute of limitations if plaintiff failed to timely commence the action. In New York, a plaintiff must commence an action within six years of the alleged breach or within six years after accrual of any alleged quasi-contract claims, such as promissory estoppel or unjust enrichment.

    Lack of Standing

    Finally, if plaintiff does not have standing to commence the action in the first place, which can be asserted by defendant as a defense to the action. A plaintiff may not have standing where, for example, he is not a party to the contract which has allegedly been breached, the plaintiff is not the real party in interest because it transferred or assigned its rights under the contract to another party, or the plaintiff sued in his individual capacity despite the contract divesting rights only in a partnership held by plaintiff.

    Conclusion

    As a practical matter, before asserting any defenses, defendants should review their contract to determine whether there are any limitations in the contract itself. For example, contracts may have loss allocation provisions, no-action clauses, or other limitations that limit certain rights and remedies. This is why it is important to retain competent counsel to assist with preliminary contract review before asserting defenses to breach of contract claims. KI Legal’s experienced litigation attorneys are ready and able to help guide you through every step of this process. If you have questions about breach of contract defenses, or need help with your particular commercial dispute matter, KI Legal’s knowledgeable litigation attorneys are here to help. Schedule a free consultation by calling (212) 404-8644 or emailing info@kilegal.com.

    This information is the most up to date news available as of the date posted. Please be advised that any information posted on the KI Legal Blog or Social Channels is being supplied for informational purposes only and is subject to change at any time. For more information, and clarity surrounding your individual organization or current situation, contact a member of the KI Legal team.

    _____________________________________________________________________________________________

    KI Legal focuses on guiding companies and businesses throughout the entire legal spectrum. KI Legal’s services generally fall under three broad-based practice group areas: Transactions, Litigation and General Counsel. Its extensive client base is primarily made up of real estate developers, managers, owners and operators, lending institutions, restaurant and hospitality groups, construction companies, investment funds, and asset management firms. KI Legal’s unwavering reputation for diligent and thoughtful representation has been established and sustained by its strong team of reputable attorneys and staff. For the latest updates, follow KI Legal on LinkedIn, Facebook, and Instagram. For more information, visit kilegal.com.

    Breach of Contract Defenses Checklist
    Contractual Disputes,  Corporate Law
  • In today's competitive business landscape, companies are constantly seeking innovative ways to expand their reach, access new markets, and leverage additional resources. One effective strategy that has gained popularity in recent years is the formation of joint ventures. This article will provide an overview of joint ventures, exploring their benefits, challenges, and key considerations for success.

    What is a Joint Venture?

    A joint venture is a strategic partnership between two or more companies that collaborate on a specific project or venture while maintaining their separate legal identities.
    At its core, a joint venture is a mutually beneficial arrangement where two or more companies pool their resources, expertise, and networks to achieve a common goal. Joint ventures can take various forms, ranging from short-term collaborations to long-term partnerships. They can be established for a specific project, such as the development of a new product or the exploration of a new market, or for ongoing operations in a particular industry.


    Joint Venture Advantages

    One of the primary benefits of a joint venture is the ability to access additional resources and capabilities. By partnering with another company, organizations can tap into their partner's expertise, technology, distribution channels, and customer base. This can significantly enhance their competitive advantage and accelerate their growth.

    Joint ventures also allow companies to share the risks and costs associated with a particular venture, making it a more viable option for pursuing ambitious projects that may be too costly or risky to undertake alone.


    Another advantage of joint ventures is the opportunity for market expansion. By partnering with a company that has a strong presence in a particular market or industry, organizations can gain access to new markets, customers, and distribution channels.

    Joint Venture Challenges

    With all that said, it is important to note that joint ventures also come with challenges. One of the key challenges is finding the right partner. It is crucial to identify a partner that shares a similar vision, values, and strategic objectives.

    Compatibility in terms of culture, management style, and decision-making processes is also essential for a successful partnership. Additionally, clear and well-defined roles, responsibilities, and expectations should be established from the outset to avoid conflicts and misunderstandings.


    Effective communication and collaboration are also critical for the success of a joint venture. Open and transparent communication channels should be established to ensure that all partners are aligned and informed about the progress, challenges, and decisions related to the venture. Regular meetings, progress reports, and performance evaluations can help foster a collaborative and productive working relationship.

    Joint Venture Agreement
    All potential challenges that can occur should be contemplated and addressed in a well-drafted joint venture agreement. This agreement should outline the terms and conditions of the partnership as well as address key aspects such as:

    • The purpose and scope of the joint venture,
    • The contribution of each partner,
    • The sharing of profits and losses,
    • Decision-making processes,
    • Dispute resolution mechanisms, and
    • The duration and termination of the venture.

    Seeking legal advice and involving experienced professionals in the negotiation and drafting of the agreement is highly recommended to ensure that all parties' interests are protected. KI Legal’s knowledgeable transactional attorneys are well-versed in these matters and are prepared to help guide you through each step of the process. For more information on joint ventures, or for help with your particular real estate venture at hand, contact us at (212) 404-8644 or email info@kilegal.com to discuss.

    This information is the most up to date news available as of the date posted. Please be advised that any information posted on the KI Legal Blog or Social Channels is being supplied for informational purposes only and is subject to change at any time. For more information, and clarity surrounding your individual organization or current situation, contact a member of the KI Legal team.

    _____________________________________________________________________________________________

    KI Legal focuses on guiding companies and businesses throughout the entire legal spectrum. KI Legal’s services generally fall under three broad-based practice group areas: Transactions, Litigation and General Counsel. Its extensive client base is primarily made up of real estate developers, managers, owners and operators, lending institutions, restaurant and hospitality groups, construction companies, investment funds, and asset management firms. KI Legal’s unwavering reputation for diligent and thoughtful representation has been established and sustained by its strong team of reputable attorneys and staff. For the latest updates, follow KI Legal on LinkedIn, Facebook, and Instagram. For more information, visit kilegal.com.

    Joint Ventures 101
    Agreements,  Corporate Law,  Formation,  Joint Ventures
  • Marital status discrimination occurs when an employer makes an employment decision, whether it be in hiring, firing, promoting or any other employment action, based not on an employee’s skill, experience, or other qualifications, but on marital status.[1] In New York State, there are specific laws in place to safeguard individuals from discrimination based on their marital status.

    The New York State Human Rights Law (NYSHRL) serves as a shield against biased treatment on the grounds of whether an individual is single, married, divorced, separated, or falls within similar categories. This law prohibits employers from engaging in discriminatory practices, emphasizing that an individual's marital status should never be a factor in employment decisions or treatment within the workplace. In addition, the New York City Human Rights Law (NYCHRL) has similar prohibitions on marital discrimination in the workplace. Because these laws are virtually similar, a plaintiff may make a case under both statutes. This means they may bring forward two causes of action for marital status discrimination if the discrimination occurred in a New York City business.[2]

    Unlike the NYSHRL NYCHRL, federal law under Title VII does not prohibit employment discrimination based on marital status. Nevertheless, instances where criteria based on marital status demonstrate disparate treatment among various protected classes could potentially support a federal discrimination claim.[3]

    A pivotal case, Kipper v. Doron Precision Systems, serves as a clear illustration of the stringent stance taken by the Third Department against marital status discrimination.[4] In this case, discriminatory statements directed at an employee—citing that their single status made them more financially resilient and thus a preferable candidate for layoff—were deemed as direct evidence of discrimination.[5] This verdict emphasizes the broad scope to which anti-discrimination laws apply in New York.

    To defend against a case of marital discrimination, a defendant must show legitimate, independent, and nondiscriminatory reasons for its employment decision.[6] For example, once a plaintiff makes a case establishing evidence of marital discrimination, the defendant can rebut with evidence that the plaintiff's employment was terminated as part of a reduction in work force due to economic conditions, and that the plaintiff was chosen for the layoff due to lack of work.[7] Courts have established that these factors are legitimate, independent and nondiscriminatory reasons for an employment decision.[8]

    It's crucial to note a notable distinction within the NYSHRL: it does not extend protections to "marital relationships."[9] This means that claims of discrimination specifically centered around marriage to a particular individual are not covered.[10] Consequently, New York's prohibition on marital status discrimination does not prevent employers from enforcing facially neutral policies aimed at preventing nepotism or favoritism. Such policies can include restrictions on employees supervising family members, including spouses, or engaging in intimate relationships within their supervisory hierarchy. One such example where a claim for marital status would not apply is when there is a refusal to hire a prospective employee based on the fact that she is married to a current employee. Such a distinction does not fall under the purview of the NYSRHL because the prospective hire is not being discriminated against based on her status as married, but instead because she is married to a specific person.[11]

    While New York’s legal landscape champions the protection of individuals from unfair treatment based on their marital status, there are nuances and exceptions within the law. It is important that you are aware of the legal hurdles and dangers that may await your business. KI Legal is here to help employers navigate all types labor & employment, discrimination, and business litigation dealings – protecting your business every step of the way. Contact us today to learn more about how we can help you. Call (212) 404-8644 or submit a contact form on our website at kilegal.com for a free consultation.

    This information is the most up to date news available as of the date posted. Please be advised that any information posted on the KI Legal Blog or Social Channels is being supplied for informational purposes only and is subject to change at any time. For more information, and clarity surrounding your individual organization or current situation, contact a member of the KI Legal team.

    ______________________________________________________________________________________________

    KI Legal focuses on guiding companies and businesses throughout the entire legal spectrum. KI Legal’s services generally fall under three broad-based practice group areas: Transactions, Litigation and General Counsel. Its extensive client base is primarily made up of real estate developers, managers, owners and operators, lending institutions, restaurant and hospitality groups, construction companies, investment funds, and asset management firms. KI Legal’s unwavering reputation for diligent and thoughtful representation has been established and sustained by its strong team of reputable attorneys and staff. For the latest updates, follow KI Legal on LinkedIn, Facebook, and Instagram. For more information, visit kilegal.com.

     

    [1] N.Y. Exec. Law §296

    [2] N.Y. Admin. Code §8-107(1)(a)-(d)

    [3] 29 C.F.R. §1604.4

    [4] Kipper v. Doron Precision Sys. Inc, 194 A.D.2d 855, 857, 598 N.Y.S.2d 399, 401 (3d Dep’t 1993).

    [5] Id.

    [6] Matter of Miller Brewing Co. v. State Div. of Human Rights, 66 N.Y.2d 937, 498 N.Y.S.2d 776, 489 N.E.2d 745.

    [7] Manning v. Norton Co., 189 A.D.2d 971, 972, 592 N.Y.S.2d 154 [1993].

    [8] Id.

    [9] Pibouin v. CA, Inc., 867 F. Supp. 2d 315, 319 (E.D.N.Y. 2012).

    [10] Manhattan Pizza Hut, Inc. v. New York State Hum. Rts. Appeal Bd., 51 N.Y.2d 506, 511–12, 415 N.E.2d 950, 953 (1980).

    [11] See id.

    Marital Status Discrimination
    Harassment Discrimination,  Labor & Employment
  • Defendants who face breach of contract claims may have several defenses available to challenge performance. This article will dive into some of those defenses.

    Defense 1: Accord and Satisfaction

    The first such defense is accord and satisfaction. Accord and satisfaction occur when the parties to a contract mutually agree to resolve their dispute by eliminating their original agreement and entering into a new agreement. Subsequently, the parties perform their respective obligations under the new agreement. The performance under the new agreement discharges the defendant from the prior obligations, rendering the old agreement unenforceable. Performance under the new agreement precludes plaintiff from attempting to enforce the defendant’s obligations under the previous agreement.

    Defense 2: Ambiguity

    Ambiguity is another defense which a defendant may assert. Ambiguity concerns a particular term of the agreement which the parties interpreted in different ways. For example, suppose a payment plan scheduled in an agreement requires payment of $100,000 in ten monthly installments of $11,000. Ten monthly payments of $11,000 totals $110,000. So, does the contract require payment of $100,000.00 or $110,000? The defendant can argue that his interpretation of the ambiguous term was correct, and therefore, he did not breach the contract.

    Defense 3: Anticipatory Breach

    Furthermore, anticipatory breach is a defense available to a defendant when the plaintiff anticipatorily breached the contract. In this instance, defendant may be excused from performing contractual obligations because the plaintiff repudiated the contract before the defendant’s performance was due. For example, say plaintiff was expected to deliver a shipment of ice cream to defendant’s ice cream parlor before defendant was expected to pay. A defendant will be excused from paying for the ice cream if plaintiff failed to provide it.

    Defense 4: Unclean Hands

    Unclean hands is another defense that a defendant may be able to assert if the plaintiff engaged in some wrongdoing in performance of the contract. However, in order to successfully invoke this defense, the defendant must be able to demonstrate that he relied on the plaintiff’s misconduct which resulted in harm to defendant and as a result, plaintiff may not be awarded equitable relief.

    Defense 5: Ratification of Allegedly Wrongful Act

    Finally, a plaintiff may be barred from enforcing a breach of contract claim if plaintiff ratified the allegedly wrongful act. Say you, defendant, delivered 100 bushels of wheat though plaintiff ordered 120 bushels. If plaintiff accepts and pays for the 100 bushels, he cannot later claim that you breached the contract. Plaintiff was aware that you delivered 20 less than expected because you advised him as much, and he decided to accept the 100 for the price of 100 bushels. In this instance, Plaintiff ratified and relinquished any right to demand the 120 bushels based upon that contract.

    It is important to keep in mind that these defenses may not extinguish liability entirely but may help to mitigate damages or prompt meaningful settlement discussions. If you have questions about breach of contract defenses, or need help with your particular commercial dispute matter, KI Legal’s knowledgeable litigation attorneys are here to help. Schedule a free consultation by calling (212) 404-8644 or emailing info@kilegal.com.

    This information is the most up to date news available as of the date posted. Please be advised that any information posted on the KI Legal Blog or Social Channels is being supplied for informational purposes only and is subject to change at any time. For more information, and clarity surrounding your individual organization or current situation, contact a member of the KI Legal team.

    _____________________________________________________________________________________________

    KI Legal focuses on guiding companies and businesses throughout the entire legal spectrum. KI Legal’s services generally fall under three broad-based practice group areas: Transactions, Litigation and General Counsel. Its extensive client base is primarily made up of real estate developers, managers, owners and operators, lending institutions, restaurant and hospitality groups, construction companies, investment funds, and asset management firms. KI Legal’s unwavering reputation for diligent and thoughtful representation has been established and sustained by its strong team of reputable attorneys and staff. For the latest updates, follow KI Legal on LinkedIn, Facebook, and Instagram. For more information, visit kilegal.com.

    Defenses to Contract Performance in New York
    Business Owner Disputes,  Contractual Disputes,  Corporate Law
  • When starting a new business, or considering restructuring an existing one, one of the most critical decisions you will face is choosing the right entity type. The entity you select will have significant implications for your business's legal structure, liability protection, and, importantly, its tax treatment. This article will explore the importance of choosing the right entity and discuss the requisite tax issues you need to consider.

    The first step in the process is understanding the various entity options available to you. Each entity type has its own unique characteristics, advantages, and disadvantages, so it is crucial to evaluate them carefully before making a decision. The most common types of business entities include:

    • Sole Proprietorships,
    • Partnerships,
    • Limited Liability Companies (LLCs),
    • S Corporations, and
    • C corporations.


    One of the primary tax considerations when choosing an entity is the treatment of profits and losses. Sole proprietorships and partnerships are considered pass-through entities, meaning that the profits and losses of the business are passed through to the owners and reported on their individual tax returns. This can be advantageous as it allows for the avoidance of double taxation. However, it is important to note that the owners are personally liable for the business's debts and liabilities.

    On the other hand, LLCs, S corporations, and C corporations offer limited liability protection, meaning that the owners' personal assets are generally shielded from the business's liabilities. However, the tax treatment differs for each entity type. LLCs have flexibility in their tax treatment and are pass through entities. S corporations are also pass-through entities but have certain restrictions on ownership and can only have a limited number of shareholders. C corporations, on the other hand, are subject to double taxation.


    Another important tax consideration is the ability to take advantage of certain tax deductions and credits. Depending on the nature of your business, certain entity types may allow for more favorable tax treatment. For example, C corporations have the ability to deduct certain fringe benefits, such as health insurance premiums, while S corporations and LLCs may have limitations on these deductions.


    It is important to note that the tax laws and regulations surrounding business entities are complex and subject to change. Therefore, it is highly recommended to consult with a qualified tax professional or attorney who can provide personalized advice based on your specific circumstances.

    Choosing the right entity for your business is a crucial decision that can have significant tax implications. Understanding the tax treatment of each entity type, including the treatment of profits and losses, the availability of deductions and credits, and the impact on raising capital, is essential. By carefully evaluating your business's needs and consulting with professionals, you can make an informed decision that aligns with your goals and maximizes your tax benefits.

    KI Legal’s Transactional attorneys are well versed in these matters and are prepared to help guide you through the process. For more information on choosing your entity type, or for help with your particular business venture at hand, contact us at (212) 404-8644 or email info@kilegal.com to discuss.

    This information is the most up to date news available as of the date posted. Please be advised that any information posted on the KI Legal Blog or Social Channels is being supplied for informational purposes only and is subject to change at any time. For more information, and clarity surrounding your individual organization or current situation, contact a member of the KI Legal team.

    _____________________________________________________________________________________________

    KI Legal focuses on guiding companies and businesses throughout the entire legal spectrum. KI Legal’s services generally fall under three broad-based practice group areas: Transactions, Litigation and General Counsel. Its extensive client base is primarily made up of real estate developers, managers, owners and operators, lending institutions, restaurant and hospitality groups, construction companies, investment funds, and asset management firms. KI Legal’s unwavering reputation for diligent and thoughtful representation has been established and sustained by its strong team of reputable attorneys and staff. For the latest updates, follow KI Legal on LinkedIn, Facebook, and Instagram. For more information, visit kilegal.com.

    Choice of Entity: Tax Issues
    Corporate Law
  • In the realm of employment and civil rights, understanding the nuances of anti-discrimination laws is pivotal. In the state of New York, these laws are robust and inclusive, providing protection against discrimination based on sex, gender expression and identity, and sexual orientation. This article aims to shed light on the complexities of these laws, emphasizing the critical differences between federal and state regulations. While we provide a comprehensive overview, it is important to note that the intricacies of New York discrimination law are vast and continuously evolving.

    Title VII of the Civil Rights Act of 1964 is a cornerstone federal legislation that prohibits discrimination based on "sex." However, New York State takes a step further in its anti-discrimination efforts. The New York State Human Rights Law (NYSHRL) not only prohibits discrimination on the basis of "sex" but also encompasses "gender expression and identity." Meanwhile, the New York City Human Rights Law (NYCHRL) specifically targets discrimination based on "gender" and extends its umbrella to cover sexual orientation as well. Both NYSHRL and NYCHRL explicitly forbid discrimination rooted in sexual orientation.

    Under these statutes, protections against sex or gender discrimination apply to both men and women. The legislative bodies have expressed their intent to combat discrimination related to sexual or gender-related characteristics, irrespective of an individual's assigned sex at birth. However, the interpretation and extent of these protections vary between federal and state laws, leading to ongoing debates in the courts.

    A significant milestone in New York's anti-discrimination legislation occurred with the enactment of the Gender Expression Non-Discrimination Act (GENDA) in 2019. GENDA amended the NYSHRL, expressly safeguarding "gender identity and expression" as a protected class. This definition includes a person's perceived gender-related identity, appearance, behavior, or expression, regardless of their assigned sex at birth. While federal courts have differing opinions on the extension of Title VII protections to sexual identity or expression, the Equal Employment Opportunity Commission has recognized discrimination based on transgender status as sex discrimination.

    Furthermore, New York State took proactive measures in 2002, amending the NYSHRL to protect individuals from discrimination based on sexual orientation. This amendment aimed to address the prejudice faced by the LGBTQ+ community in workplaces and beyond. The NYSHRL's provisions against sexual orientation discrimination align with those protecting other classes, such as race and color. The NYCHRL mirrors these protections, defining "sexual orientation" broadly to include various forms of romantic, physical, or sexual attractions.

    In conclusion, New York's anti-discrimination laws stand as a robust framework, providing extensive protections against discrimination rooted in sex, gender expression and identity, and sexual orientation. This article has offered a broad overview of these laws; however, the field of discrimination law is intricate and constantly evolving. For specific legal advice and detailed information, employers are encouraged to consult with knowledgeable counsel who is well-versed in employment law and compliance matters.

    KI Legal is here to help employers navigate New York’s complex labor & employment landscape. Our experienced attorneys can provide guidance and support at every stage of the process, from reviewing wage and hour policies to defending against claims of non-compliance. Contact us today to learn more about how we can help you achieve compliance with Part 146 Hospitality Wage Order and other labor and employment regulations. Call (212) 404-8644 or submit a contact form on our website at kilegal.com for a free consultation.

    This information is the most up to date news available as of the date posted. Please be advised that any information posted on the KI Legal Blog or Social Channels is being supplied for informational purposes only and is subject to change at any time. For more information, and clarity surrounding your individual organization or current situation, contact a member of the KI Legal team.

    ______________________________________________________________________________________________

    KI Legal focuses on guiding companies and businesses throughout the entire legal spectrum. KI Legal’s services generally fall under three broad-based practice group areas: Transactions, Litigation and General Counsel. Its extensive client base is primarily made up of real estate developers, managers, owners and operators, lending institutions, restaurant and hospitality groups, construction companies, investment funds, and asset management firms. KI Legal’s unwavering reputation for diligent and thoughtful representation has been established and sustained by its strong team of reputable attorneys and staff. For the latest updates, follow KI Legal on LinkedIn, Facebook, and Instagram. For more information, visit kilegal.com.

    Prohibited Conduct: Sex, Gender, and Sexual Orientation Discrimination
    Harassment Discrimination,  Labor & Employment
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