The New York County Supreme Court has denied a motion of Embraer, in which it sought to strike compensation by Air Astana for damages related to issues with its fleet of E190-E2. The court wants Embraer to provide more answers to Air Astana’s claims first and present this during a preliminary conference that is scheduled for October 27. Embraer has to provide more evidence in Air Astana case. The Supreme Court held a video conference on September 7 on a motion from Embraer, in which the Brazilian airframer sought to strike remedies of consequential damages that were demanded by Air Astana. As reported here before, the airline from Kazakhstan and Embraer have been embroiled in a legal case since last year over apparent deficiencies of its five E190-E2s that caused operational issues. Air Astana grounded the aircraft in early 2021 and claimed that the E2 was not airworthy, but that Embraer masked the deficiencies. In a motion that was discussed on September 7, Embraer (once again) denied the accusations that the E2 was unsafe or that it had masked any issues. In the motion, the airframer stated that Air Astana was contradicting its own allegations about the safety of the aircraft as it has resumed E2 operations in July last year, at a time it said it would only do so when the safety of the type was demonstrated. That same month, Air Astana filed a lawsuit against Embraer. The court document dated September 8 shows that Air Astana has been seeking a combined $24 million in damages from Embraer. “The first, sounding in breach of contract with a focus on the duty to repair, seeks damages in excess of $ 12 million based on the Airframe Warranty Assignment (“AWA”) between Air Astana and (lessor) AerCap, dated as of November 30, 2018, by which AerCap assigned to Air Astana all warranties it held as against Embraer. The second cause of action, sounding in breach of warranty, is also based on the AWA and seeks damages of $12 million, with a focus on the condition of the aircraft at the time of sale.” The document adds: “Plaintiff (Air Astana) asserts two types of claims: (1) that defendant (Embraer) acted with gross negligence in the manufacture and sale of defective planes; and (2) that defendant breached its contractual obligation to make repairs and remedy defects. (…) The pleadings allege specific defects and conduct evincing defendant’s alleged reckless disregard for the safety of others or intentional wrongdoing such that plaintiff’s claim for consequential damages, liberally construed, survives dismissal at this stage of the litigation.” Although Embraer has clarified its position more than once, the Supreme Court asks the OEM to file an answer to Air Astana’s allegations within twenty days, before the end of September. A counsel of the court will then prepare the preliminary conference for October 27, in which the case will be discussed further. In the September 7 hearing, there was a small success for Embraer: it doesn’t have to pay for Air Astana’s attorney’s fees. The Supreme Court ruled that “there is no provision is any of the contracts allowing for attorney’s fees and plaintiff has not opposed that aspect of the motion.”
