By: Jeffrey M. Haber The law can be funny. Not in a comedic way, but in a way that defies expectations about what is needed to bring a cause of action. Sometimes this is manifested in the quantum of evidence needed to bring an action and survive a pre-answer motion to dismiss. Other times, it is manifested in the capacity or standing of the plaintiff to commence the action. In Greco v. Syracuse ASC, LLC , 2023 N.Y. Slip Op. 03987 (4th Dept., July 28, 2023) ( here ), the Appel

By Jonathan H. Freiberger In most situations, the contemplated goal of a mortgage foreclosure action is the sale of the subject property at public auction pursuant to a judgment of foreclosure and sale. Once a sale occurs, however, can it be set aside? “A court has the inherent power to ensure that a sale conducted pursuant to a judgment of foreclosure is not made an instrument of injustice in the exercise of its equitable powers, has the discretion to set aside a judicia

By Jonathan H. Freiberger Folks sign contracts of all types that purport to contain limitations of liability; but are they enforceable. In many cases, the answer is “yes”. “In the absence of a contravening public policy, exculpatory provisions in a contract, purporting to insulate one of the parties from liability resulting from the party’s own negligence, although disfavored by the law and closely scrutinized by the courts, generally are enforced, subject however to variou

By Jonathan H. Freiberger This Blog has frequently written about RPALP 1304 . By way of background, and as previously noted in this Blog, RPAPL 1304 requires that at least ninety days before commencing legal action against a borrower with respect to a “home loan” (as defined in the relevant statutes), a “lender, assignee or mortgage loan servicer” must: send written notice to the borrower by certified and regular mail that the loan is in default; provide a list of approved h

By: Jeffrey M. Haber On August 26, 2022, the Securities and Exchange Commission (“SEC” or “Commission”) announced ( here ) that it adopted two amendments to the rules governing its whistleblower program. The first rule change allows the Commission to pay whistleblowers for their information and assistance in connection with non-SEC actions in certain circumstances. The second rule affirms the Commission’s authority to consider the dollar amount of a potential award for the l

By Jonathan H. Freiberger Regular readers of this Blog are familiar with Bank of America, N.A. v. Kessler , 202 A.D.3d 10 (2021)(“ Kessler ”), a case about which we have previously written < here ,=">here</a>," here=">here</a>"> and which addresses the pre-foreclosure notice requirements of RPAPL 1304 (a topic that is a frequent subject of this Blog – see < here =">here</a>"> and the articles linked therein). Briefly, as noted in prior Blog articles, RPAPL 1304 requires

By: Jeffrey M. Haber Previously, this Blog examined the doctrines of frustration of purpose and impossibility of performance in the context of Covid-19 ( here and here ). The doctrine of frustration of purpose is narrowly applied. 1 “In order to invoke the doctrine of frustration of purpose, the frustrated purpose must be so completely the basis of the contract that, as both parties understood, without it, the transaction would have made little sense.” 2 In other words, t

By: Jeffrey M. Haber Over the years, this Blog has examined numerous cases (indeed, too many to link to) in which the plaintiff claims to have been fraudulently induced to enter into a contract with the defendant. Most of the cases were dismissed because the plaintiff failed to allege a misrepresentation of present fact, as opposed to a misrepresentation of future intent to perform under the contract. Today, we examine, International Business Machines Corp. v. GlobalFoundries

By: Jeffrey M. Haber The Securities and Exchange Commission (“SEC”) has frequently brought enforcement actions against those who trade upon material, non-public information. Many of these actions show that insider trading extends beyond the employees of the subject company. In those enforcement actions, an employee of the company shares material, non-public information with a third party, typically a family member or friend, who thereafter trades on the information or shares

By: Jeffrey M. Haber Last April, this Blog wrote about Sodhi v. IAC/InterActiveCorp , 2021 N.Y. Slip Op. 31220(U) (Sup. Ct., N.Y. County Apr. 8, 2021) ( here ), an action to recover money claimed to be improperly withheld by IAC/Interacticecorp (“IAC”). The primary issue in the Sodhi was whether the releases in a settlement letter covered the claims asserted in the action. The motion court held that the releases were broad and covered plaintiffs’ claim to the money alleged

By Jonathan H. Freiberger In its February 20, 2021, article entitled: “ The New York Court of Appeals Decides Four Cases, In One Opinion, Addressing and Clarifying Issues Related to the Timeliness of the Commencement of Mortgage Foreclosure Actions ” (the “Prior Article”), this Blog discussed, Freedom Mortgage Corp. v. Engel , 37 N.Y.3d 1 (2021), a February 18, 2021, decision by the New York Court of Appeals. In Freedom , the Court of Appeals decided four cases “each turning

By: Jeffrey M. Haber The SEC Giveth In our last article (posted on September 17, 2021 ( here )) discussing the SEC’s whistleblower program, we noted that the Commission has paid more than $1 billion in awards to hundreds of whistleblowers since issuing its first award in 2012. In the month that followed, the amount paid to whistleblowers increased by more than $87 million. The first award of $11.5 million (announced on September 17, 2021, here ) was paid to two whistleblower

Melville, NY ( Law Firm Newswire ) October 15, 2021 - Freiberger Haber LLP is pleased to announce that co-founding partners, Jonathan H. Freiberger and Jeffrey M. Haber, have been named by Super Lawyers magazine to be among the top lawyers in the New York metropolitan area. This is Mr. Freiberger’s second, and Mr. Haber’s tenth, consecutive year of selection. Both Messrs. Freiberger and Haber were recognized for their work in business litigation. Super Lawyers Magazine® is a

To state a claim for fraud, a plaintiff must satisfy each element of the claim; namely, “a material misrepresentation of fact, knowledge of its falsity, an intent to induce reliance, justifiable reliance by the plaintiff and damages.”

On June 3, 2021, the New York Court of Appeals, the State’s highest court, handed down Himmelstein, McConnell, Gribben, Donoghue & Joseph, LLP v Matthew Bender & Co., Inc. , 2021 N.Y. Slip Op. 03485 (June 3, 2021) ( here ), a decision involving a claim under General Business Law § 349 (“GBL § 349”), New York’s consumer fraud statute. In a decision written by Judge Jenny Rivera, a majority of the Court made two rulings that will have an impact on future claims under the statut

It goes without saying that the spread of the coronavirus is accelerating across the country. As noted in the lead paragraph of an article posted in yesterday’s online version of the Washington Post, titled “U.S. Surpasses 15 million Coronavirus Cases as Spread Accelerates” ( here ): It took about 100 days for the United States to record its first 1 million coronavirus cases, and 44 more passed before the country topped 2 million. But now, in the middle of the most severe su

Anyone reading the newspapers or watching television knows that in the past few weeks the country has seen a surge in new coronavirus cases. As reported in the news media ( e.g. , here ), “ ighteen states have broken daily records for new cases in the past week and hospitalizations are up in 43 states.” According to Johns Hopkins University, there are more than 9.2 million coronavirus cases and more than 231,000 deaths since the start of the pandemic. Recognizing the risks

As we have noted, the financial exploitation of seniors is a significant problem ( e.g. , here , here , here , here , and here ). For many regulators, it is a top priority. here.=">here</a>."> FINRA is one such regulator. To help combat the financial exploitation of seniors, FINRA enacted Rule 2165 (“Financial Exploitation of Specified Adults”) ( here ). Among other things, the rule permits a member firm to place a temporary hold on the disbursement of funds or securities fr

Last week, this Blog wrote about the ramifications of failing to meet a deadline or otherwise act in a timely manner ( here ). In today’s post, we examine the ramifications of failing to meet the procedural requirements set forth in a statute. In Lincoln Sq. Synagogue, Inc. v. Lexington Strategies, LLC , 2020 N.Y. Slip Op. 32793(U) (Sup. Ct., N.Y. County Aug. 26, 2020) ( here ), the Court dismissed a turnover proceeding against a garnishee because the judgment creditor failed

Like most states in the country, New York is an “employment at will” state. This means that if there is no written agreement between the employer and employee governing when the employer can fire the employee, the employer has the right to fire the employee at any time for any reason. Smalley v. Dreyfus Corp. , 10 N.Y.3d 55, 58 (2008). The Court of Appeals has “repeatedly refused to recognize exceptions to, or pathways around, these principles.” Id. Thus, when an employee