Business Law

New New York Power of Attorney Form

by Fred Abramson

New New York Power of Attorney Form Com­menc­ing Sep­tem­ber 1, 2009, NY enacted new law with regards to power of attor­neys.  You can find the new forms here:
http://www.judicialtitle.com/forms.php

Sample Multimedia Agreements

by Fred Abramson

Look­ing for the right mul­ti­me­dia agree­ment for your business. Here is a list of some of the Agree­ments that my office can draft for you.

  • Copy­right Assignment
  • Work for Hire Agreement
  • Moral Rights Waiver
  • Copy­right Per­mis­sion letters
  • Fram­ing Agreement
  • Cease-and-Desist Let­ter for Trademarks
  • Nondis­clo­sure Agreements
  • Sub­mis­sion Agreement
  • Mutual Non-Disclosure Agreement
  • Right of Pub­lic­ity Agreement
  • Model Release
  • Employ­ment Agreement
  • Employee Nondis­clo­sure Agreement
  • Web­site Pri­vacy Agreement
  • Con­sult­ing Agreement
  • New Employer Letters
  • Soft­ware Devel­op­ment and Pub­lish­ing Agreements
  • Title Devel­op­ment and Pub­lish­ing Agreements
  • Ghost­writer Agreements
  • Beta Site Test Agreement
  • Pro­to­type License Agreement
  • Web­site Devel­op­ment Agreement
  • Online Pub­lish­ing Agreement
  • Inter­na­tional Dis­tri­b­u­tion Agreement
  • Co-Branding Agree­ment
  • Web­site Terms of Use Agreement
  • Video Clip License Agreement
  • Music Video License Agreement
  • Music Sam­ple Agreement
  • Soft­ware Acqui­si­tion Agreement
  • Soft­ware Licens­ing Agreements
  • Shrink-Wrap Licenses
  • Videogame Pro­fes­sional Ser­vices Agreements
  • Videogame Con­fi­den­tial­ity Agreements.

What Can You Sue For? Basic Contract Damages

by Fred Abramson

What Can You Sue For? Basic Contract DamagesIf you are suing for a breach of con­tract you are prob­a­bly won­der­ing what money can you col­lect.  You could also be won­der­ing if there is any other relief that you can obtain from the court. Listed below are the basics of what you can sue for in a breach of con­tract case:

  1. Com­pen­satory Damages.
  2. Con­se­quen­tial Damages;
  3. Liq­ui­dated Damages;
  4. Injunc­tions and other Equi­table Relief.

COMPENSATORY DAMAGES:

If you can prove your breach of con­tract claim, then the judge usu­ally awards com­pen­satory dam­ages.  The pur­pose of com­pen­satory dam­ages it make the plain­tiff be in the same place as if the con­tract had been performed.

CONSEQUENTIAL DAMAGES:

If you can prove that the other party knew or could have fore­seen when the agree­ment was made, you can recover con­se­quen­tial damages.

One com­mon issue in a breach of con­tract case regard­ing con­se­quen­tial dam­ages is whether you can recover for lost prof­its.  The gen­eral rule is that you can only recover for lost prof­its if this issue was rea­son­ably fore­see­able when you signed the con­tract and the other party knew of your cir­cum­stances or if it is expressly writ­ten in the con­tract. For exam­ple, if you plan on open­ing a restau­rant, and the party that you con­tracted with failed to install a stove, you may be able to recover con­se­quen­tial damages.

LIQUIDATED DAMAGES

When dam­ages will be dif­fi­cult to assess if a con­tract is breached, you can agree to a liq­ui­dated dam­ages clause in your con­tract. A liq­ui­dated dam­ages clause will state the amount of dam­ages that will be paid if there is a breach.

INJUNCTIONS:

If mon­e­tary dam­ages are insuf­fi­cient, the judge has the power to order an injunc­tion, attach­ment, spe­cific per­for­mance and rescission.

For more reading:

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What Can You Sue For? Basic Contract Damages

4 things you should think about when deciding how partners should be compensated

by Fred Abramson

4 things you should think about when deciding how partners should be compensatedDecid­ing part­ner com­pen­sa­tion when start­ing up a com­pany is crit­i­cal.  With­out a fair and just writ­ten com­pen­sa­tion  pro­vi­sion in a part­ner­ship agree­ment, the busi­ness can implode.  Here are 4 things you should think about when decid­ing how part­ners should be compensated:

  1. When will prof­its be divided? Will it be once a year, at the end of the year or will part­ners be able to draw their prof­its at some ear­lier point?
  2. Should a part­ner receive a addi­tional salary? In the case where one per­son may work more hours than the other part­ners, it is advis­able to either pay an addi­tional salary or pro­vide a larger por­tion of the profits.
  3. Should prof­its and losses be shared equally?
  4. Should a cer­tain per­cent­age of the prof­its be re-invested in the com­pany? For exam­ple, it may be impor­tant to retain some of the prof­its to pro­vide a bonus to keep a key employee.

It is vital that you and your part­ners how decide prof­its should be shared as early as pos­si­ble.  A lawyer can help you focus on what is impor­tant and select solu­tions. But ulti­mately, it is up to you to decide how prof­its are allocated.

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4 things you should think about when deciding how partners should be compensated

Attachment of Property in New York — Provisional Remedies

by Fred Abramson

The attach­ment of prop­erty is a strong weapon when used prop­erly in New York. A busi­ness­man who is hav­ing finan­cial prob­lems decides not to pay for goods that he pur­chased.  If your com­pany is the cred­i­tor, it could take years before he will have to pay. At that time, the funds could be depleted.  One key pro­vi­sional rem­edy that a cred­i­tor can seek is to obtain an attach­ment.  Here, the cred­i­tor can obtain an attach­ment on the bank account and the busi­ness­man would not be able to use the money. Even though the plain­tiff is not able to use or obtain the funds, the busi­ness­man will not have the lux­ury of time and would be more moti­vated to settle.

Attach­ment of prop­erty can have dev­as­tat­ing effects on the busi­ness­man.  Attach­ments can be ordered by the court ex parte, mean­ing that the busi­ness­man will have no notice.  This could cause checks to bounce and dras­ti­cally alter the abil­ity for a small com­pany to con­duct business.

In order to obtain an order of attach­ment, the cred­i­tor would have to show, as per CPLR 6201(a): 1. that \“there is a cause of action\” and that the plain­tiff will prob­a­bly suc­ceed on the mer­its; 2. that at least one of the grounds of attach­ment found in the law exists;  and 3. that the amont asked for in the law­suit exceeds any coun­ter­claims that the cred­i­tor has knowl­edge of.

If an order is granted, it is directed to the sher­riff, not the defen­dant. Some orders are granted with­out notice to the businessman.

If you have a ques­tion about pro­vi­sional reme­dies such as attach­ment of prop­erty in New York, act now and con­tact the Law Office of Fred­eric R. Abram­son at 212–233-0666. Feel free to keep up to date on all New York Busi­ness Law issues by vis­it­ing my blog.

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Attachment of Property in New York Provisional Remedies

What To Do If An Owner of A Business wants to Transfer its Interests

by Fred Abramson

What To Do If An Owner of A Business wants to Transfer its InterestsNew Yorker\‘s are a mobile bunch. Espe­cially New York busi­ness own­ers. Busi­ness open and close every day.  It is risky to believe that your co-owners will still be with you five years down the line. It is likely that there will come a time when of your co-owners will want to sell his shares or inter­ests in the com­pany to some­one else.  One of the most com­mon ways that a small busi­ness can get dis­rupted is when an owner desires to sell or trans­fer his inter­ests in a com­pany. So, what should you do?  You should cre­ate in advance a method for the own­ers to review and block any that is not in the best inter­ests of the com­pany.  Here are some things you should think about:

  1. Right of First Refusal. This is the most com­mon pro­vi­sion in a buy-sell agree­ment. The owner who wishes to sell his inter­ests first offers it to his co-owners before any­one else.
  2. Decide the Price of the Own­er­ship Inter­ests in Advance. Often the price will be set at the price a pro­posed out­side buyer has bid.  I do not rec­om­mend this option because a fraud­u­lent offer is pos­si­ble. Another method is to set a pre-determined price at the time a buy-sell agree­ment is drafted.  Another option is to set a high down pay­ment price which would show good faith.
  3. Make clear the effect of any sale on Minor­ity Own­ers. Often a right of first refusal pro­vi­sion may freeze out a minor­ity owner from sell­ing his inter­ests.  As a result, it may be impor­tant to include a \“Right to a Forced Sale\” clause.
  4. Decide who can buy the inter­est. Should the com­pany have the right to pur­chase shares or the indi­vid­ual owners?
  5. Should an owner be able to give away his inter­est? Often own­ers wish to grant their inter­ests in a com­pany to a trust for estate plan­ning rea­sons. This could be prob­lem­atic because tech­ni­cally the trust would own the shares of the busi­ness. Often these issues are addressed when draft­ing a buy sell agreement.
  6. No Trans­fer Restric­tions. Refus­ing to trans­fer any own­er­ship inter­est is another pos­si­bil­ity. This can lim­ited in a few dif­fer­ent ways, such a no trans­fers to cer­tain per­sons and no trans­fers with­out writ­ten con­sent of the other owners.

You should decide in advance what to do if an owner of a busi­ness wants to trans­fer its inter­ests through a buy sell agree­ment to avoid unnec­es­sary prob­lems and poten­tial litigation.

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What To Do If An Owner of A Business wants to Transfer its Interests

Checklist for sale of a business

by Fred Abramson

If you are plan­ning to sell or buy the assets of a cor­po­ra­tion, before you go to your lawyers office you should pro­vide the answers to the  fol­low­ing questions:

  • Names and addresses of every­one involved in the sale
  • All assets and prop­erty that will be in part of the sale
  • What monies are being paid?
  • What are the debts and lia­bil­i­ties of the company?
  • Will the con­sid­er­a­tion be paid in install­ments or a lump sum?
  • When will pay­ment be due?
  • Have all due dili­gence doc­u­ments been obtained?  For exam­ple, have you inspected the books, prop­erty or busi­ness records?
  • Agree on a clos­ing date
  • Are there any warranties?
  • Any intel­lec­tual prop­erty, such as the use of the com­pany name be transferred?
  • Who pays any poten­tial taxes?
  • Are there any employee agreements?
  • Are there any leases?
  • What hap­pens if one party defaults?
Checklist for sale of a business

What happens if there is an ambiguous term in a contract?

by Fred Abramson

Q:   What hap­pens if you enter into an Agree­ment and there is ambigu­ous language? What happens if there is an ambiguous term in a contract?

A:   If the per­son mak­ing the offer means one thing and the per­son accept­ing the offer rea­son­ably means another, then there is no con­tract.  Be aware that just because you failed to put some­thing into a con­tract or there was a mis­take, does not mean it the con­tract is ambiguous.

The court looks at the con­tract as a whole to deter­mine whether a con­tract is ambiguous.

Remem­ber, courts only enforce con­tracts, they will not re-write them.

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What is a void or voidable contract?

by Fred Abramson

In New York, a void con­tract is sim­ply no con­tract at all. It binds nei­ther party.  If you enter into a void con­tract, noth­ing more has to be accom­plished on your part.  It is bind­ing by nei­ther party and can­not be ratified.

Con­tracts that are usu­ally con­sid­ered void­able when one of the par­ties has the abil­ity either to avoid or val­i­date the agreement.

Once you per­form the duties and oblig­a­tions of a con­tract, it can­not be con­sid­ered voidable.

For more infor­ma­tion on void or void­able con­tracts, con­tact me at 212–233-0666.

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How long do I have to sue? The New York Statute of Limitations

by Fred Abramson

Cen­turies ago, there was no fixed time start a law­suit.  The Statute of Lim­i­ta­tions was enacted to pro­tect defen­dants against defend­ing old law­suits after a rea­son­able time has passed.  The law has spe­cific pro­vi­sions that pre­scribe how long a plain­tiff has before start­ing a law­suit. If you fail to com­mence your law­suit within the statute of lim­i­ta­tions, your case is gen­er­ally dismissed.

As a gen­eral rule, it is wise to begin a law­suit within at least six to eight months before the statute of lim­i­ta­tions expires. The rea­son for this is because the law is often quirky.  For exam­ple the law requires the plain­tiff to serve the defen­dant.  By allot­ting a six-eight month win­dow  before the statute of lim­i­ta­tions expires, it would be pos­si­ble to re-serve the defendant.

The spe­cific time peri­ods regard­ing the statue of lim­i­ta­tions can be found in the New York Civil Prac­tice Law and Pro­ce­dure Arti­cle 2.

If you have a ques­tion of how the statute of lim­i­ta­tions impacts your case, con­tact my law office by phone at 212–233-0666 or via email at fabramson@abramsonlegal.com

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How long do I have to sue? The New York Statute of Limitations

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