Whether Liquidated Damages Clause is Unenforceable Penalty is Fact Question

On December 6, 2013, Justice Friedman of the New York County Commercial Division issued a decision in 412 W. 12th St. 1N LLC v. C and A Capital LLC, 2013 NY Slip Op. 33099(U), ruling that whether a liquidated damages clause was an unenforcable penalty was a fact question that could not be resolved on a motion to dismiss.

In 412 W. 12th St., the parties executed a mortgage providing that upon default, defendant was entitled to, among other things, default interest at "a rate of interest equal to the lesser of 24% . . . per annum or the maximum legal rate at the time any such interest is to be calculated" plus a "late charge of 4¢ for each $1 so overdue." Plaintiff defaulted, subsequently paid default interest and liquidated damages, and then sued for their return, alleging that they constituted an unenforcable penalty. In response to defendant's motion to dismiss, the court ruled that it could not determine on a motion to dismiss whether the late payment charge and default interest were unenforceable penalties, writing:

[A] contractual provision fixing damages in the event of breach will be sustained if the amount liquidated bears a reasonable proportion to the probable loss and the amount of actual loss is incapable or difficult of precise estimation. If, however, the amount fixed is plainly or grossly disproportionate to the probable loss, the provision calls for a penalty and will not be enforced. . . . As the Court of Appeals has noted, today the trend favors freedom of contract through the enforcement of stipulated damage provisions as long as they do not clearly disregard the principle of compensation.

On this motion, [defendant] fails to meet its burden of demonstrating both that the damages that would result from a default under the Mortgage Agreement were not readily ascertainable at the time the contract was entered into, and that the default interest rate provision, the late charge provision, or both in combination, are not grossly disproportionate to the probable damages. The issue of what the default interest rate and the late charge were intended to compensate [defendant] for, and what its probable losses were at the time of contracting, cannot be resolved on the record of this motion to dismiss.

(Internal quotations and citations omitted).

A lesson here for both transactional counsel and litigators is it is unwise to assume--even in a commercial transaction--that the courts will hold contracting parties to liquidated damages provisions that cannot be justified by the circumstances.