Readers of this Blog know that to state a cause of action for fraudulent inducement, the complaint must allege “that the defendant intentionally made a material misrepresentation of fact in order to defraud or mislead the plaintiff, and that the plaintiff reasonably relied on the misrepresentation and suffered damages as a result.” Connaughton v. Chipotle Mexican Grill, Inc. , 135 A.D.3d 535, 537 (1st Dept. 2016), aff’d , 29 N.Y.3d 137 (2017) (citations omitted). Significantl

Pursuant to CPLR § 3211(a)(5), “a party may move for judgment dismissing one or more causes of action asserted against him on the ground that the cause of action may not be maintained” because of collateral estoppel or res judicata. Under the doctrine of res judicata , a party may not litigate a claim where a judgment on the merits exists from a prior action between the same parties involving the same subject matter. The doctrine applies not only to claims actually litigated

Business relationships come in all forms. People can be shareholders of a corporation, joint venturers and partners. Sometimes, as in Capizzi v. Brown Chiari LLP , 2021 N.Y. Slip Op. 02956 (4th Dept. May 7, 2021) ( here ), a dispute arises among the parties to a business relationship concerning the existence of the relationship itself. When that happens, courts will, as an initial matter, examine the writings between the parties to determine the existence of the relationship

“If it looks like a duck, swims like a duck, and quacks like a duck, then it probably is a duck.” This saying best describes the duplication of claims doctrine that this Blog often writes about – that is, the doctrine whereby a fraud claim will duplicate a contract claim when “the only fraud alleged is that the defendant was not sincere when it promised to perform under the contract.” Mañas v. VMS Assoc., LLC , 53 A.D.3d 451, 453 (1st Dept. 2008) (quoting First Bank of Ams. v

Under New York law, a party’s performance may be excused, even if the contract contains no express provision for the event that made performance impossible. See , e.g. , City of New York v. Local 333, Mar. Div., Intl. Longshoremen’s Assn. , 79 A.D.2d 410 (1st Dept. 1981). To determine whether performance may be excused, the court takes a wholistic approach, considering the facts and circumstances surrounding the non-performance and the roles, if any, the parties played in sai

A “recurring question” New York courts grapple with is whether the facts alleged in a complaint give rise to claims for both breach of contract and fraudulent inducement. Cronos Grp. v. XComIP, LLC , 156 A.D.3d 54, 56 (1st Dept. 2017). Readers of this Blog know that a fraud claim, which “ar from the same facts , s identical damages and d not allege a breach of any duty collateral to or independent of the parties’ agreements<,> is subject to dismissal as redundant of the c

When a person releases another from claims or the threat of claims, he/she is giving up the right to sue the other in connection with the subject of the release. Centro Empresarial Cempresa S.A. v América Móvil, S.A.B. de C.V. , 17 N.Y.3d 269, 276 (2011) (“Generally, a valid release constitutes a complete bar to an action on a claim which is the subject of the release.”). A release effectively eliminates all claims against another that are possessed by the party giving the re

Under well-settled principles, summary judgment in lieu of complaint is available for an instrument for the payment of money only. In considering such a motion, the courts will look at the four corners of the instrument sued upon in determining whether the instrument qualifies as one for the payment of money only. here.=">here</a>."> In Yang v. Dai , 2021 N.Y. Slip Op. 02125 (1st Dept. April 6, 2021) ( here ), the Appellate Division, First Department applied the foregoing pri

Corporations are legal entities distinct from their managers. As such, like any shareholder or investor, a corporation can buy shares in another corporation. When a corporation buys enough voting shares of another corporation to control that company, a parent - subsidiary relationship is created. Specifically, when a corporation buys less than 100%, but more than 50%, of another company, the latter company becomes a regular subsidiary of the former. If the corporation acquir

Although New York law does not provide for a single statute of limitations for breach of fiduciary duty or unjust enrichment claims, courts typically determine the applicable limitations period — three years under CPLR § 214 (4) or six years under CPLR § 213(1) — by analyzing the substantive remedy that the plaintiff seeks. IDT Corp. v. Morgan Stanley Dean Witter & Co. , 12 N.Y.3d 132, 139 (2009). Thus, for example, “ here the remedy sought is purely monetary in nature, court

Fraud in the sale of securities. Such an allegation is often governed by an arbitration clause, requiring the parties to resolve their dispute before a FINRA tribunal. Not all investment claims, however, require resolution in arbitration. Sometimes the dispute can be adjudicated in a court of law. Such was the case in Pottorff v. Centra Fin. Group, Inc. , 2021 N.Y. Slip Op. 01645 (1st Dept. Mar. 19, 2021 ( here ). Pottorff v. Centra Financial Group, Inc. Background Pottorff

Today, we examine Two Rivers Entities, LLC v. Sandoval , 2021 N.Y. Slip Op. 01527 (1st Dept. Mar. 16, 2021) ( here ), a case involving breach of contract and the faithless servant doctrine. Before we examine Two Rivers , we discuss the principles of law at issue in the case. Breach of Contract To sustain a breach of contract cause of action, a plaintiff must allege: (1) a valid agreement; (2) the plaintiff’s performance of its obligations under the agreement; (3) the defenda

It has long been the law in New York that a party’s disclaimer of reliance on extra-contractual representations and omissions will not preclude a fraudulent inducement claim unless: (1) the disclaimer is specific to the fact alleged to be misrepresented or omitted; and (2) the alleged misrepresentation or omission does not concern facts peculiarly within the knowledge of the non-moving party. Basis Yield Alpha Fund v. Goldman Sachs Group, Inc. , 115 A.D.3d 128, 137 (1st Dept

In the past, this Blog has examined cases in which the plaintiff brings a breach of contract claim and fraud claim in the same proceeding. < e.g. , here,=">here</a>," and="and" >here.=">here</a>."> e.g.,> Those cases show that where the two claims arise from the same facts and circumstances and seek the same relief, the fraud claim will be dismissed as duplicative of the contract claim. Indeed, as this Blog has explained previously, New York courts will not permit a fraud c

“Summary judgment is a judgment entered by a court for one party and against another party without a full trial.” ( Here .) The motion is designed to avoid unnecessary trials – that is, its purpose is to avoid a trial where there are no material issues of fact to be decided by the trier of fact ( e.g. , the judge or the jury). Summary judgment motions can also simplify a trial (known as a motion for partial summary judgment) because it can dispense with issues or claims for w

“You can’t have fraud if you disclose it,” said the motion court in Ibarrondo v. Evans , 2020 N.Y. Slip Op 30051(U) (Sup. Ct., N.Y. County Jan. 6, 2020) ( here ), aff’d , 2021 N.Y. Slip Op. 01200 (1st Dept. Feb. 25, 2021) ( here ). Yet, without alleging any new facts detailing how the alleged fraud was not disclosed, the plaintiff in Ibarrondo sought to amend her complaint to reallege the cause of action. In today’s article, we examine Ibarrondo . Ibarrondo involved a dispu

In today’s article, we examine familiar territory: complaints alleging breach of contract and fraudulent inducement. Kleber v. 10012 Holdings Inc. , 2021 N.Y. Slip Op. 30441(U) (Sup. Ct., N.Y. County Feb. 8, 2021) ( here ). As the title of the article indicates, Kleber involved the purchase of an “Uncle Sam” screen print edition 1/5 by Andy Warhol (the “Artwork”), which was signed and numbered by the artist. In April 2019, Plaintiff Claus Kleber and Defendant Guy Hepner (“He

“We make premium widgets with the highest quality metals.” Assume for the moment, the widgets are made from alloys that are prone to imperfections. Also assume that the speaker sincerely believed the statement to be true, notwithstanding the instances of imperfections. Is this statement an actionable fraud? In Matter of Sundial Growers, Inc. Sec. Litig. , 2021 N.Y. Slip Op. 01014 (1st Dept.Feb. 16, 2021) ( here ), the Court considered this question and, as discussed below, he

It is well settled that communications between an attorney and a client for the purpose of obtaining legal advice are privileged and not discoverable unless the privilege is deemed to have been waived by the client. Veras Inv. Partners, LLC v. Akin Gump Strauss Hauer & Feld LLP , 52 A.D.3d 370, 374 (1st Dept. 2008) (citing Jakobleff v. Cerrato, Sweeney & Cohn , 97 A.D.2d 834, 835 (2d Dept. 1983)). A client who voluntarily testifies to a privileged matter, who publicly disclo

Last month, this Blog examined Shilon v. New Upreal LLC , 2021 N.Y. Slip Op. 30146(U) (Sup. Ct., Kings County Jan. 11, 2021), a case involving a motion by a nonparty to intervene in the litigation. ( Here .) Today, we look at 1467 Bedford Holdings LLC v. Spitzer , 2021 N.Y. Slip Op. 30302(U) (Sup. Ct., Kings County Feb. 1, 2021) ( here ), a case involving intervention as of right under CPLR §1012(a)(2). Under CPLR §1012(a)(2), a party may intervene as a matter of right “when