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THE FIRST EMPLOYMENT AGREEMENT INCLUDED A FORUM SELECTION CLAUSE, THE SECOND AGREEMENT REQUIRED ARBITRATION, THE SECOND AGREEMENT SUPERSEDED THE FIRST (FIRST DEPT).

The First Department, reversing Supreme Court, determined that an agreement signed after the employment agreement superseded the employment agreement. Therefore the dispute was subject to arbitration based upon the second agreement:

After [plaintiff] and defendant Mirae Asset Securities (USA) Inc. had entered into an employment agreement which contained a forum selection clause, plaintiff executed a “Uniform Application for Securities Industry Registration or Transfer” (Form U-4), which contains an arbitration provision. We find that the Form U-4 supersedes the employment agreement and therefore that the parties' dispute must be arbitrated.

This dispute is governed by state contract law principles … . The first principle is that “a subsequent contract regarding the same matter will supersede the prior contract” … . The determination whether a subsequent agreement is superseding is fact-driven … . Plaintiff's execution of a valid U-4 Form constituted an agreement to limit his contractual remedies when he signed the U-4 Form… . The U-4 Form encompasses the same employment-related disputes as were addressed in the employment agreement. Thus, the forum selection clause was effectively extinguished … . Hyuncheol Hwang v Mirae Asset Sec. (USA) Inc., 2018 NY Slip Op 06485, First Dept 10-2-18

EMPLOYMENT LAW (THE FIRST EMPLOYMENT AGREEMENT INCLUDED A FORUM SELECTION CLAUSE, THE SECOND AGREEMENT REQUIRED ARBITRATION, THE SECOND AGREEMENT SUPERSEDED THE FIRST (FIRST DEPT))/CONTRACT LAW (EMPLOYMENT LAW, THE FIRST EMPLOYMENT AGREEMENT INCLUDED A FORUM SELECTION CLAUSE, THE SECOND AGREEMENT REQUIRED ARBITRATION, THE SECOND AGREEMENT SUPERSEDED THE FIRST (FIRST DEPT))/FORUM SELECTION CLAUSE (THE FIRST EMPLOYMENT AGREEMENT INCLUDED A FORUM SELECTION CLAUSE, THE SECOND AGREEMENT REQUIRED ARBITRATION, THE SECOND AGREEMENT SUPERSEDED THE FIRST (FIRST DEPT))/ARBITRATION CLAUSE (THE FIRST EMPLOYMENT AGREEMENT INCLUDED A FORUM SELECTION CLAUSE, THE SECOND AGREEMENT REQUIRED ARBITRATION, THE SECOND AGREEMENT SUPERSEDED THE FIRST (FIRST DEPT))

BREACH OF DUTY CAUSE OF ACTION WAS DUPLICATIVE OF THE BREACH OF CONTRACT CAUSE OF ACTION AND WAS PROPERLY DISMISSED, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department noted that a breach of duty cause of action was duplicative of the breach of contract action and was properly dismissed:

The cause of action alleging breach of duty was duplicative of the breach of contract cause of action. “[A] simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated” … . Junger v John V. Dinan Assoc., Inc., 2018 NY Slip Op 06232, Second Dept 9-26-18

CONTRACT LAW (BREACH OF DUTY CAUSE OF ACTION WAS DUPLICATIVE OF THE BREACH OF CONTRACT CAUSE OF ACTION AND WAS PROPERLY DISMISSED, CRITERIA EXPLAINED (SECOND DEPT))/BREACH OF DUTY (CONTRACT LAW, BREACH OF DUTY CAUSE OF ACTION WAS DUPLICATIVE OF THE BREACH OF CONTRACT CAUSE OF ACTION AND WAS PROPERLY DISMISSED, CRITERIA EXPLAINED (SECOND DEPT))

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NOTICE PURPORTING TO DISSOLVE A PARTNERSHIP WAS A NULLITY BECAUSE IT DID NOT COMPORT WITH THE RELEVANT PROVISIONS OF THE PARTNERSHIP AGREEMENT (FIRST DEPT).

The First Department determined the notice issued by two partners purporting to dissolve the partnership was a nullity because the notice did not comport with the relevant provisions of the partnership agreement:

On October 15, 2015, two of the partners issued a notice purporting to withdraw from and dissolve the partnerships, pursuant to New York Partnership Law § 62(1)(b), “which,” the notice said, “provides that a partnership is terminable at will on notice.” * * *

“New York's Partnership Law creates default provisions that fill gaps in partnership agreements, but where the agreement clearly states the means by which a partnership will dissolve, or other aspects of partnership dissolution, it is the agreement that governs the change in relations between partners and the future of the business” … . Where, as here, a partnership agreement contains provisions governing the dissolution of the partnership by the will of the partners, ordinary contract principles apply … , and a notice by a partner or partners to dissolve a partnership in contravention of the partnership agreement's dissolution provisions is a legal nullity and does not effect a dissolution of the partnership. Wiener v Weissman, 2018 NY Slip Op 06205, First Dept 9-26-18

PARTNERSHIP LAW (NOTICE PURPORTING TO DISSOLVE A PARTNERSHIP WAS A NULLITY BECAUSE IT DID NOT COMPORT WITH THE RELEVANT PROVISIONS OF THE PARTNERSHIP AGREEMENT (FIRST DEPT))/CONTRACT LAW (PARTNERSHIP LAW, NOTICE PURPORTING TO DISSOLVE A PARTNERSHIP WAS A NULLITY BECAUSE IT DID NOT COMPORT WITH THE RELEVANT PROVISIONS OF THE PARTNERSHIP AGREEMENT (FIRST DEPT))

PLAINTIFF, AS A THIRD PARTY BENEFICIARY OF THE AGREEMENT, HAD STANDING TO BRING THE BREACH OF CONTRACT ACTION, DESPITE THE BOILERPLATE EXCLUSION OF THIRD PARTY BENEFICIARIES (SECOND DEPT).

The First Department, in a full-fledged opinion by Justice Singh too complex to fairly summarize here, reversing Supreme Court, determined that plaintiff was a third-party beneficiary to the contract, despite the boilerplate exclusion of third-party beneficiaries:

…[W]e reject defendant's contention that plaintiff does not have standing to sue for breach of the [agreement] because it is not a party to that agreement. Plaintiff is an intended third-party beneficiary of the [agreement], as that agreement explicitly refers to plaintiff and grants it enforceable rights. Accordingly, the [agreement's] boilerplate exclusion of third-party beneficiaries does not apply to plaintiff, and this action may not be properly dismissed for lack of standing … . MPEG LA, LLC v Samsung Elecs. Co., Ltd., 2018 NY Slip Op 06147, First Dept 9-19-18 

CONTRACT LAW (PLAINTIFF, AS A THIRD PARTY BENEFICIARY OF THE AGREEMENT, HAD STANDING TO BRING THE BREACH OF CONTRACT ACTION, DESPITE THE BOILERPLATE EXCLUSION OF THIRD PARTY BENEFICIARIES (FIRST DEPT))/THIRD PARTY BENEFICIARY (CONTRACT LAW, PLAINTIFF, AS A THIRD PARTY BENEFICIARY OF THE AGREEMENT, HAD STANDING TO BRING THE BREACH OF CONTRACT ACTION, DESPITE THE BOILERPLATE EXCLUSION OF THIRD PARTY BENEFICIARIES (FIRST DEPT))

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PLAINTIFF WAS GRANTED A PRELIMINARY INJUNCTION IN THIS ACTION FOR SPECIFIC PERFORMANCE OF A REAL ESTATE PURCHASE AGREEMENT, ALTHOUGH THE AMOUNT OF THE UNDERTAKING IS WITHIN THE COURT’S DISCRETION, THE COURT MUST REQUIRE PLAINTIFF TO GIVE AN UNDERTAKING (SECOND DEPT).

The Second Department, reversing Supreme Court, noted that a party who has been granted a preliminary injunction must give an undertaking, although the amount is within the court’s discretion:

The plaintiff commenced this action for specific performance of a contract for the sale of certain real property in Queens. The plaintiff moved for a preliminary injunction, inter alia, restraining the defendants from selling, transferring, or encumbering the subject property. In an order entered March 17, 2015, the Supreme Court granted the plaintiff’s motion for a preliminary injunction. In the order appealed from, the court determined that an undertaking was not required. The defendants appeal.

“[U]pon the granting of a preliminary injunction, a plaintiff shall give an undertaking in an amount to be fixed by the court'” (…CPLR 6312[b]). Thus, “[w]hile fixing the amount of an undertaking when granting a motion for a preliminary injunction is a matter within the sound discretion of the court, CPLR 6312(b) clearly and unequivocally requires the party seeking an injunction to give an undertaking” … . Chao-Yu C. Huang v Shih, 2018 NY Slip Op 06075, Second Dept 9-19-18

CIVIL PROCEDURE (UNDERTAKING, PLAINTIFF WAS GRANTED A PRELIMINARY INJUNCTION IN THIS ACTION FOR SPECIFIC PERFORMANCE OF A REAL ESTATE PURCHASE AGREEMENT, ALTHOUGH THE AMOUNT OF THE UNDERTAKING IS WITHIN THE COURT’S DISCRETION, THE COURT MUST REQUIRE PLAINTIFF TO GIVE AN UNDERTAKING (SECOND DEPT))/CPLR 6321 (UNDERTAKING, PLAINTIFF WAS GRANTED A PRELIMINARY INJUNCTION IN THIS ACTION FOR SPECIFIC PERFORMANCE OF A REAL ESTATE PURCHASE AGREEMENT, ALTHOUGH THE AMOUNT OF THE UNDERTAKING IS WITHIN THE COURT’S DISCRETION, THE COURT MUST REQUIRE PLAINTIFF TO GIVE AN UNDERTAKING (SECOND DEPT))/UNDERTAKING (CIVIL PROCEDURE, PRELIMINARY INJUNCTION, PLAINTIFF WAS GRANTED A PRELIMINARY INJUNCTION IN THIS ACTION FOR SPECIFIC PERFORMANCE OF A REAL ESTATE PURCHASE AGREEMENT, ALTHOUGH THE AMOUNT OF THE UNDERTAKING IS WITHIN THE COURT’S DISCRETION, THE COURT MUST REQUIRE PLAINTIFF TO GIVE AN UNDERTAKING (SECOND DEPT))/PRELIMINARY INJUNCTION  (UNDERTAKING, PLAINTIFF WAS GRANTED A PRELIMINARY INJUNCTION IN THIS ACTION FOR SPECIFIC PERFORMANCE OF A REAL ESTATE PURCHASE AGREEMENT, ALTHOUGH THE AMOUNT OF THE UNDERTAKING IS WITHIN THE COURT’S DISCRETION, THE COURT MUST REQUIRE PLAINTIFF TO GIVE AN UNDERTAKING (SECOND DEPT))/INJUNCTION, PRELIMINARY (UNDERTAKING, PLAINTIFF WAS GRANTED A PRELIMINARY INJUNCTION IN THIS ACTION FOR SPECIFIC PERFORMANCE OF A REAL ESTATE PURCHASE AGREEMENT, ALTHOUGH THE AMOUNT OF THE UNDERTAKING IS WITHIN THE COURT’S DISCRETION, THE COURT MUST REQUIRE PLAINTIFF TO GIVE AN UNDERTAKING (SECOND DEPT))/CONTRACT LAW (SPECIFIC PERFORMANCE, UNDERTAKING, PLAINTIFF WAS GRANTED A PRELIMINARY INJUNCTION IN THIS ACTION FOR SPECIFIC PERFORMANCE OF A REAL ESTATE PURCHASE AGREEMENT, ALTHOUGH THE AMOUNT OF THE UNDERTAKING IS WITHIN THE COURT’S DISCRETION, THE COURT MUST REQUIRE PLAINTIFF TO GIVE AN UNDERTAKING (SECOND DEPT))/REAL PROPERTY LAW (SPECIFIC PERFORMANCE, UNDERTAKING, PLAINTIFF WAS GRANTED A PRELIMINARY INJUNCTION IN THIS ACTION FOR SPECIFIC PERFORMANCE OF A REAL ESTATE PURCHASE AGREEMENT, ALTHOUGH THE AMOUNT OF THE UNDERTAKING IS WITHIN THE COURT’S DISCRETION, THE COURT MUST REQUIRE PLAINTIFF TO GIVE AN UNDERTAKING (SECOND DEPT))

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CONSTRUCTION CONTRACT REQUIRING INSURANCE WILL NOT BE INTERPRETED TO REQUIRE ADDITIONAL INSURED COVERAGE ABSENT A SPECIFIC PROVISION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the causes of action alleging that parties should have been named as additional insureds in this Labor Law 200 and 241 (6) action should have been dismissed. Contracts which call for the procurement of insurance do not, without specific provisions, require parties to be named as additional insureds:

“A provision in a construction contract cannot be interpreted as requiring the procurement of additional insured coverage unless such a requirement is expressly and specifically stated. In addition, contract language that merely requires the purchase of insurance will not be read as also requiring that a contracting party be named as an additional insured” … . Uddin v A.T.A. Constr. Corp., 2018 NY Slip Op 06136, Second Dept 9-19-18

INSURANCE LAW (CONSTRUCTION CONTRACT REQUIRING INSURANCE WILL NOT BE INTERPRETED TO REQUIRE ADDITIONAL INSURED COVERAGE ABSENT A SPECIFIC PROVISION (SECOND DEPT))/CONTRACT LAW (INSURANCE, CONSTRUCTION CONTRACT REQUIRING INSURANCE WILL NOT BE INTERPRETED TO REQUIRE ADDITIONAL INSURED COVERAGE ABSENT A SPECIFIC PROVISION (SECOND DEPT))/ADDITIONAL INSURED COVERAGE (CONSTRUCTION CONTRACT REQUIRING INSURANCE WILL NOT BE INTERPRETED TO REQUIRE ADDITIONAL INSURED COVERAGE ABSENT A SPECIFIC PROVISION (SECOND DEPT))/CONSTRUCTION CONTRACTS (ADDITIONAL INSURED COVERAGE, CONSTRUCTION CONTRACT REQUIRING INSURANCE WILL NOT BE INTERPRETED TO REQUIRE ADDITIONAL INSURED COVERAGE ABSENT A SPECIFIC PROVISION (SECOND DEPT))

CONTRACT PROVISION ABOUT ALLOWED USES OF THE DIOCESE’S PROPERTY BY A CATHOLIC SCHOOL WAS AMBIGUOUS, DIOCESE’S SUMMARY JUDGMENT MOTION SEEKING DAMAGES FOR BREACH SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a contract provision about the use of property by a Catholic school (CTK) was ambiguous about other allowed uses (daycare, charter school, etc.) and therefore the plaintiff's (the Diocese's) motion for summary judgment should not have been granted:

It cannot be said that the language of the 1976 Agreement requiring CTK to “maintain and operate a Catholic high school in and upon the entire premises herein described and . . . use the same for no other purpose not customarily or usually associated with such use” has ” a definite and precise meaning, unattended by danger of misconception in the purport of the [agreement] itself, and concerning which there is no reasonable basis for a difference of opinion,'” particularly given the time that has passed and the changes in circumstances since the negotiation of the 1976 Agreement… . CTK came forward with evidence of other instances where unused or underused portions of Catholic schools were rented to charter schools, raising a triable issue of fact as to whether such a use is customarily and usually associated with the operation of a Catholic school under the budgetary and enrollment constraints currently facing schools within the Diocese. Roman Catholic Diocese of Brooklyn, N.Y. v Christ the King Regional High Sch., 2018 NY Slip Op 06130, Second Dept 9-19-18

CONTRACT LAW (CONTRACT PROVISION ABOUT ALLOWED USES OF THE DIOCESE'S PROPERTY BY A CATHOLIC SCHOOL WAS AMBIGUOUS, DIOCESE'S SUMMARY JUDGMENT MOTION SEEKING DAMAGES FOR BREACH SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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ATTORNEY HAD APPARENT AUTHORITY TO SIGN STIPULATION OF SETTLEMENT (SECOND DEPT).

The Second Department determined that a stipulation of settlement was properly enforced because the attorney had the apparent authority to sign the stipulation on the client’s behalf:

“An agreement between parties or their attorneys relating to any matter in an action, other than one made between counsel in open court, is not binding upon a party unless it is in a writing subscribed by him [or her] or his [or her] attorney or reduced to the form of an order and entered” (CPLR 2104). A stipulation of settlement signed by an attorney may bind his or her client even if it exceeds the attorney’s actual authority if the attorney had apparent authority to act on his or her client’s behalf … . Here, the plaintiff is bound by the stipulation of settlement signed by her former attorney, as the record supports the finding that even if the attorney lacked actual authority to enter into the stipulation of settlement on the plaintiff’s behalf, he had apparent authority to do so (see CPLR 2104 …). Anghel v Utica Mut. Ins. Co., 2018 NY Slip Op 06073, Second Dept 9-19-18

CIVIL PROCEDURE (STIPULATION, ATTORNEY HAD APPARENT AUTHORITY TO SIGN STIPULATION OF SETTLEMENT (SECOND DEPT))/CONTRACT LAW (STIPULATION, ATTORNEY HAD APPARENT AUTHORITY TO SIGN STIPULATION OF SETTLEMENT (SECOND DEPT))/ATTORNEYS (STIPULATION, ATTORNEY HAD APPARENT AUTHORITY TO SIGN STIPULATION OF SETTLEMENT (SECOND DEPT))/AGENCY (ATTORNEYS, STIPULATION, ATTORNEY HAD APPARENT AUTHORITY TO SIGN STIPULATION OF SETTLEMENT (SECOND DEPT)/STIPULATION (ATTORNEYS, AGENCY, ATTORNEY HAD APPARENT AUTHORITY TO SIGN STIPULATION OF SETTLEMENT (SECOND DEPT))/APPARENT AUTHORITY (AGENCY, ATTORNEYS, STIPULATION, ATTORNEY HAD APPARENT AUTHORITY TO SIGN STIPULATION OF SETTLEMENT (SECOND DEPT))/CPLR 2104 (STIPULATION, ATTORNEY HAD APPARENT AUTHORITY TO SIGN STIPULATION OF SETTLEMENT (SECOND DEPT))

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SELLER DID NOT DEMONSTRATE THE TIME OF THE ESSENCE LETTER GAVE BUYER SUFFICIENT TIME AND DID NOT DEMONSTRATE THE ABILITY TO CLOSE ON THAT DATE, SELLER’S MOTION FOR SUMMARY JUDGMENT IN THIS SPECIFIC PERFORMANCE ACTION PROPERLY DENIED (SECOND DEPT).

The Second Department determined (1) seller did not demonstrate the time of the essence letter gave buyer sufficient time and (2) seller did not demonstrate the ability to close on that date. Therefore seller's motion for summary judgment in this specific performance action was properly denied:

In order to make time of the essence, “there must be a clear, distinct, and unequivocal notice to that effect giving the other party a reasonable time in which to act”… . “What constitutes a reasonable time for performance depends upon the facts and circumstances of the particular case” … . “Included within a court's determination of reasonableness are the nature and object of the contract, the previous conduct of the parties, the presence or absence of good faith, the experience of the parties and the possibility of prejudice or hardship to either one, as well as the specific number of days provided for performance” … . “The determination of reasonableness must by its very nature be determined on a case-by-case basis” … . “[T]he question of what constitutes a reasonable time is usually a question of fact” … .

Here, the seller failed to establish, prima facie, that the time of the essence letter provided the buyer with a reasonable time within which to close … . Furthermore, the seller's submissions failed to eliminate triable issues of fact as to whether the property was the subject of ongoing administrative proceedings, in violation of the contract of sale, which could be completely resolved at the scheduled closing or within a reasonable time thereafter … . Under these circumstances, the seller failed to sustain its burden of demonstrating that it was ready, willing, and able to convey title in accordance with the contract of sale … . Rodrigues NBA, LLC v Allied XV, LLC, 2018 NY Slip Op 06129, Second Depy 9-19-18

REAL PROPERTY LAW (SELLER DID NOT DEMONSTRATE THE TIME OF THE ESSENCE LETTER GAVE BUYER SUFFICIENT TIME AND DID NOT DEMONSTRATE THE ABILITY TO CLOSE ON THAT DATE, SELLER'S MOTION FOR SUMMARY JUDGMENT IN THIS SPECIFIC PERFORMANCE ACTION PROPERLY DENIED (SECOND DEPT))/ CONTRACT LAW (REAL PROPERTY, SELLER DID NOT DEMONSTRATE THE TIME OF THE ESSENCE LETTER GAVE BUYER SUFFICIENT TIME AND DID NOT DEMONSTRATE THE ABILITY TO CLOSE ON THAT DATE, SELLER'S MOTION FOR SUMMARY JUDGMENT IN THIS SPECIFIC PERFORMANCE ACTION PROPERLY DENIED (SECOND DEPT))PURCHASE AGREEMENT (REAL PROPERTY, SELLER DID NOT DEMONSTRATE THE TIME OF THE ESSENCE LETTER GAVE BUYER SUFFICIENT TIME AND DID NOT DEMONSTRATE THE ABILITY TO CLOSE ON THAT DATE, SELLER'S MOTION FOR SUMMARY JUDGMENT IN THIS SPECIFIC PERFORMANCE ACTION PROPERLY DENIED (SECOND DEPT))/TIME OF THE ESSENCE (REAL PROPERTY, SELLER DID NOT DEMONSTRATE THE TIME OF THE ESSENCE LETTER GAVE BUYER SUFFICIENT TIME AND DID NOT DEMONSTRATE THE ABILITY TO CLOSE ON THAT DATE, SELLER'S MOTION FOR SUMMARY JUDGMENT IN THIS SPECIFIC PERFORMANCE ACTION PROPERLY DENIED (SECOND DEPT))/SPECIFIC PERFORMANCE (REAL PROPERTY, SELLER DID NOT DEMONSTRATE THE TIME OF THE ESSENCE LETTER GAVE BUYER SUFFICIENT TIME AND DID NOT DEMONSTRATE THE ABILITY TO CLOSE ON THAT DATE, SELLER'S MOTION FOR SUMMARY JUDGMENT IN THIS SPECIFIC PERFORMANCE ACTION PROPERLY DENIED (SECOND DEPT))

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INSURER OF RESIDENTIAL MORTGAGE-BACKED SECURITIES NOT ENTITLED TO RECOVER ALL CLAIMS PAID OUT AS A RESULT OF 50% OF THE UNDERLYING MORTGAGES GOING INTO DEFAULT UNDER A FRAUD THEORY, ONLY A BREACH OF CONTRACT THEORY WAS AVAILABLE (FIRST DEPT).

The First Department, modifying Supreme Court, in a full-fledged opinion by Justice Manzanet-Daniels, determined plaintiff insurer's (MBAI's) motion for summary judgment should have been denied in its entirety in this action stemming from the insuring of residential mortgage-backed securities. MBAI sought to recover all the payments made after more than 50% of the mortgages underlying the securities went into default:

MBIA seeks “Claims Payment Damages” and “Repurchase Damages.” The “Claims Payment Damages” consist of “all claims payments that MBIA has made . . . [or] will likely incur,” and are designed to put MBIA in the same position it would have been in had the policy never been issued. As such, they constitute rescissory damages and are not recoverable by plaintiff monoline insurer seeking redress under an irrevocable policy. We have made clear that an insurer is “not entitled to damages amounting to all claims payments it made or will make under the policies,” inasmuch as such damages are “rescissory damages to which the insurer is not entitled” … .

“Repurchase Damages” represent the difference between the claims payments MBIA made or is projected to incur, and those MBIA would have made had [defendant] Credit Suisse repurchased nonconforming lines, i.e., those that breached the representations and warranties.

While such repurchase damages are in theory recoverable, the fraud claim was nonetheless correctly dismissed. It has long been the rule that parties may not assert fraud claims seeking damages that are duplicative of those recoverable on a cause of action for breach of contract (see e.g. Manas v VMS Assoc., LLC, 53 AD3d 451, 454 [1st Dept 2008]). As we noted in Manas, fraud damages are meant to redress a different harm than damages on a cause of action for breach of contract. Contract damages are meant to restore the nonbreaching party to as good a position as it would have been in had the contract been performed; fraud damages are meant to indemnify losses suffered as a result of the fraudulent inducement … . Where all of the damages are remedied through the contract claim, the fraud claim is duplicative and must be dismissed … . * * *

… [T]he order of the Supreme Court … [which] granted defendants' motion for summary judgment dismissing the fraudulent inducement claim, denied so much of plaintiff's motion for summary judgment as sought a ruling that an insurer does not have to prove loss causation in connection with a fraudulent inducement claim, granted so much of plaintiff's motion as sought a ruling on the meaning of the “No Monetary Default” representation and the “Mortgage Loan Schedule” representation in the Pooling and Service Agreement for the subject residential mortgage-backed securitization transaction, and denied plaintiff's motion to supplement the record in opposition to defendants' motion, should be modified, on the law, to deny plaintiff's motion as to the meaning of the representations, and otherwise affirmed … . MBIA Ins. Corp. v Credit Suisse Sec. (USA) LLC, 2018 NY Slip Op 06060, First Dept 9-13-18

INSURANCE LAW (SECURITIES, INSURER OF RESIDENTIAL MORTGAGE-BACKED SECURITIES NOT ENTITLED TO RECOVER ALL CLAIMS PAID OUT AS A RESULT OF 50% OF THE UNDERLYING MORTGAGES GOING INTO DEFAULT UNDER A FRAUD THEORY, ONLY A BREACH OF CONTRACT THEORY WAS AVAILABLE (FIRST DEPT))/CONTRACT LAW (INSURANCE LAW, SECURITIES, INSURER OF RESIDENTIAL MORTGAGE-BACKED SECURITIES NOT ENTITLED TO RECOVER ALL CLAIMS PAID OUT AS A RESULT OF 50% OF THE UNDERLYING MORTGAGES GOING INTO DEFAULT UNDER A FRAUD THEORY, ONLY A BREACH OF CONTRACT THEORY WAS AVAILABLE (FIRST DEPT))/SECURITIES (INSURANCE LAW,  INSURER OF RESIDENTIAL MORTGAGE-BACKED SECURITIES NOT ENTITLED TO RECOVER ALL CLAIMS PAID OUT AS A RESULT OF 50% OF THE UNDERLYING MORTGAGES GOING INTO DEFAULT UNDER A FRAUD THEORY, ONLY A BREACH OF CONTRACT THEORY WAS AVAILABLE (FIRST DEPT))/FRAUD (INSURANCE LAW, SECURITIES, INSURER OF RESIDENTIAL MORTGAGE-BACKED SECURITIES NOT ENTITLED TO RECOVER ALL CLAIMS PAID OUT AS A RESULT OF 50% OF THE UNDERLYING MORTGAGES GOING INTO DEFAULT UNDER A FRAUD THEORY, ONLY A BREACH OF CONTRACT THEORY WAS AVAILABLE (FIRST DEPT))/RESIDENTIAL MORTGAGE BACKED SECURITIES (INSURER OF RESIDENTIAL MORTGAGE-BACKED SECURITIES NOT ENTITLED TO RECOVER ALL CLAIMS PAID OUT AS A RESULT OF 50% OF THE UNDERLYING MORTGAGES GOING INTO DEFAULT UNDER A FRAUD THEORY, ONLY A BREACH OF CONTRACT THEORY WAS AVAILABLE (FIRST DEPT))

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