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SPECIAL SITUATIONS FUND III, L.P. v. ATTUNITY, LTD.

3 A.D.3d 408 (2004)

770 N.Y.S.2d 619

SPECIAL SITUATIONS FUND III, L.P., et al., Respondents, v. ATTUNITY, LTD., Appellant.

Appellate Division of the Supreme Court of the State of New York, First Department.

January 20, 2004.

Mosler Safe Co. v Maiden Lane Safe Deposit Co. (199 N.Y. 479 [1910]) established the general rule that where delays are caused by the mutual fault of the parties to a contract, a liquidated damages clause is abrogated and a claimant must resort to recovery for actual damages. It would be inequitable and illogical to allow a claimant to reap the benefit of the liquidated damages clause for its own wrongdoing (cf. X.L.O. Concrete Corp. v John T. Brady & Co.,<...

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