It is said that justice never sleeps. This is true, even as we adjust to life during the coronavirus pandemic. Although state and federal courts around the country have limited the business they handle, they nonetheless remain open. But what does this mean? The Lower Courts The State of New York has answered this question through several recent court orders. These orders make clear that the courts are, as Chief Judge Janet DiFiore stated in a recent online message, “up and r

On March 24, 2020, the New York Court of Appeals decided Plavin v. Group Health Inc. , 2020 N.Y. Slip Op. 02025 (Mar. 24, 2020) ( here ), a case in which the Court was asked by the United States Court of Appeals for the Third Circuit to decide whether an insurance company’s alleged misstatements and omissions about its insurance plan, made to over 600,000 current and former New York City employees and retirees, sufficed to satisfy the consumer-oriented element of a claim unde

Sometimes this Blog gets to address numerous issues in its examination of a case. In MDK Hijos Trust v. Nordlicht , 2020 N.Y. Slip Op. 30793(U) (Sup. Ct., N.Y. County Mar. 10, 2020) ( here ), we get the opportunity to do so again. MDK Hijos Trust v. Nordlicht Background Plaintiff, MDK Hijos Trust (“Plaintiff” or “MDK”), sought damages for, among other claims, fraudulent inducement and breach of fiduciary duty in connection with investments by the Katz family (Marcos Katz and

As a general matter, business entities ( e.g. , for-profit and not-for-profit corporations, limited liability companies, and limited partnerships) formed outside the State of New York (whether in another state or a foreign country) may not do business within the State unless they receive authority to do so. See generally , Business Corporation Law (“BCL”) §§ 1301-1320 (corporations), Limited Liability Company Law (“LLCL”) §§ 801-809 (limited liability companies), Not-for-Prof

Most (lay) people think that a breach of contract action involves nothing more than a failure to perform some requirement in a contract. One need look no further than Wikipedia for such a definition. ( Here (“Breach occurs when a party to a contract fails to fulfill its obligation(s) as described in the contract.…”).) But as today’s post shows, there can be more to a breach of contract action than a simple failure to perform. Schum v. Spatorico , 2020 N.Y. Slip Op. 01816 (4t

Many cases involving an alleged fraud typically rise and fall on the reliance element of the cause of action. Sometimes, the issue before the court is the state of mind of the alleged fraudster. While at other times, the issue concerns whether the defendant made a misrepresentation of material fact. In today’s Fraud Notes, we examine Cohen Bros. Realty Corp. v. Mapes , 2020 N.Y. Slip Op. 01440 (1st Dept. Mar. 3, 2020) ( here ), a case involving the state of mind element of a

In a prior post ( here ), this Blog discussed Barrett v. Grenda , 2017 NY Slip Op. 07031 (4th Dept. Oct. 6, 2017), a case in which the court dismissed a breach of contract claim because the plaintiff failed to identify the provision of an agreement alleged to have been breached. In NFA Group v. Lotus Research, Inc. , 2020 N.Y. Slip Op. 01356 (2d Dept. Feb. 26, 2020) ( here ), the Appellate Division, Second Department affirmed the dismissal of a breach of contract action for t

Forum non conveniens is a common law doctrine in which a court may dismiss an action because adjudication of the matter is more appropriate in another forum. In New York, the doctrine can be found in CPLR § 327(a). Under this section, a court may stay or dismiss an action if it finds “that in the interest of substantial justice the action should be heard in another forum.” CPLR § 327(a). The party seeking dismissal bears the burden of establishing that New York is not the pr

In today’s Fraud Notes, we look at two fraud cases involving real estate: Lash v. Schleider , 2020 N.Y. Slip Op. 30406(U) (Sup. Ct., N.Y. County Feb. 11, 2020) ( here ); and Goff v. Parker , 2020 N.Y. Slip Op. 30396(U) (Sup. Ct., Suffolk County Feb. 10, 2020) ( here ). Lash v. Schleider Lash arose from a contract between plaintiffs, Lori Lash, Robert Lash, and Goldsholle, LLC (“Goldsholle”), and the moving defendants, Jeffrey Schleider (“Schleider”) and Miron Properties, LLC

On February 6, 2020, Justice Jennifer G. Schecter of the Supreme Court, New York County issued a decision in which she ruled, among other things, that Kesha Rose Sebert (better known by her stage name as Kesha) defamed Lukasz Gottwald (“Gottwald”), the music producer known as Dr. Luke, and Kesha’s former producer, when she claimed, in a text message to Lady Gaga, that he had raped Katy Perry. Gottwald v. Sebert , 2020 N.Y. Slip Op. 30347(U) (Sup. Ct., N.Y. County Feb. 6, 2020

Readers of this Blog know that we like to write about fraud cases. After all, a fraud can be perpetrated in so many contexts. Indeed, the circumstances upon which one can deceive another are limited only by the imagination of the wrongdoer. Sometimes, there are too many reported decisions for us to examine in the depth to which our readers have become accustomed. For this reason, we have created the “Fraud Notes” post in which we will examine multiple decisions addressing fra

Commercial transactions by their nature involve contracts. Sometimes, the parties involved in such transactions will dispute the meaning of their agreement. It may be that the language used is ambiguous; or the language is reasonably clear but is susceptible to different meanings; or although the language is clear, taken literally, it might not reflect the parties’ intent; or, as is often the case, an event has occurred that was not contemplated by the parties at the time of

Statutes of limitations limit the duration of a defendant’s liability for all types of alleged wrongdoing. Plaintiffs who do not pursue their rights within the limitation period will find the courthouse doors closed to their claims. For this reason, whether the statute of limitations has run can be an important topic of discussion between a lawyer and her client. The statute of limitations for a fraudulent inducement claim is the greater of (a) six years from the date when t

On January 23, 2020, the Appellate Division, First Department, unanimously affirmed the dismissal of fraud-based claims alleged in connection with the purchase of a promissory note that memorialized a $1.5 million loan.

“The attorney-client privilege shields from disclosure any confidential communications between an attorney and his or her client made for the purpose of obtaining or facilitating legal advice in the course of a professional relationship.” Ambac Assur. Corp. v. Countrywide Home Loans, Inc. , 27 N.Y.3d 616, 623 (2016). The privilege “fosters the open dialogue between lawyer and client that is deemed essential to effective representation.” Spectrum Sys. Intl. Corp. v. Chemical B

On January 16, 2020, the Appellate Division, First Department recalled and vacated its September 17, 2019 decision in Ambac Assur. Corp. v Countrywide Home Loans Inc. , 175 A.D.3d 1156 (1st Dept. 2019), for the primary purpose of deciding whether the motion court properly denied Countrywide’s motion to strike Ambac’s jury demand on its fraudulent inducement cause of action. In its decision replacing the recalled and vacated decision (2020 N.Y. Slip Op. 00367 ( here )), the Fi

Commercial contracts typically include a liquidated damages provision that allows for the payment of a predetermined amount of damages in the event of a breach by one of the parties. Courts will sustain such a provision if the liquidated amount is reasonably proportionate to the probable loss and the amount of actual loss is incapable or difficult of precise estimation. If, however, the amount fixed is grossly disproportionate to the probable loss, then the provision amounts

New York’s Business Corporation Law (“BCL”) provides shareholders owning 50% or more of a corporation two paths to judicial dissolution: a) BCL § 1104 – deadlock at the board or shareholder level such that the corporation “cannot continue to function effectively, and no alternative exists but dissolution”; or b) BCL § 1104-a – where directors or those in control of the corporation have been guilty of illegal, fraudulent or oppressive actions toward the complaining shareholder

As discussed in previous Blog posts, business owners and entrepreneurs wishing to insulate themselves from personal liability for the acts taken in the name of their business can generally do so by forming a corporation ( e.g. , C-Corp. or an S-Corp.) or limited liability company (“LLC”). Such protection, however, is not absolute; there are exceptions to the rule. For instance, a creditor or other third party can “pierce the corporate veil” – i.e. , go behind the corporate fo

An interesting question sometimes arises in the tort arena in which a third-party to a transaction claims to have been injured by one of the parties. Do the parties to the transaction owe a duty to the third party? The answer depends on whether the third party can show privity or near privity with the alleged tortfeasor. In this regard, the third party must demonstrate that the parties were aware that their report, agreement or transaction documentation would be used by the t