Clients often ask if their oral agreement is enforceable. To support their claim, they point to emails and text messages as evidence of such an agreement. As this Blog has noted in the past, whether an oral agreement is enforceable and whether emails and text messages are sufficient documentary evidence to demonstrate the existence of such an agreement are dependent upon whether the evidence is admissible and irrefutable. See , e.g. , here , here , and here . In today’s post,

In November of 2018, this Blog wrote about Unique Goals International, Ltd. v. Finskiy ( here ), a case involving a fraud cause of action that was dismissed because the plaintiff failed to satisfy the justifiable reliance element of the claim. On December 26, 2019, the Appellate Division, First Department unanimously affirmed the dismissal of the fraud claim. Unique Goals Intl., Ltd. v. Finskiy , 2019 N.Y. Slip Op. 09381 (1st Dept. Dec. 26, 2019) ( here ). Background Plainti

From time to time, this Blog writes about procedural issues that arise during the course of a litigation. Today, we write about the note of issue and certificate of readiness. A note of issue is a form that is filed and served on all parties confirming that the case is ready for trial. CPLR § 3402(a). Although any party may file the note of issue after issue is joined, it is usually the plaintiff who files the form. In addition to the note of issue, the party making the fil

Whether to permit discovery of insurance coverage decisions is often hotly contested. The issue typically arises in cases in which the carrier performs an investigation into the facts and circumstances of a potential or actual claim. The fruits of such an investigation can be very illuminating. For this reason, plaintiffs request the disclosure of all documents concerning such investigations. Defendants and insurers often resist producing these materials on privilege and work

In August of this year, this Blog wrote about Norddeutsche Landesbank Girozentrale v. Tilton , 2019 N.Y. Slip Op. 32470(U) (Sup. Ct., N.Y. County Aug. 20, 2019) ( here ), a case involving several elements of a fraud claim. ( Here .) As we noted at the time, Norddeutsche was a good example of why the courts refrain from dismissing fraud claims – there are issues of fact that are best left to the trier-of-fact to decide. Shortly after this decision, Defendants appealed the mot

It is not uncommon for parties settling an action to negotiate a confidentiality provision that prohibits them from disclosing the terms of their agreement. While there may be reasons for requiring non-disclosure (a topic for another day), courts often grapple with the circumstances under which disclosure is warranted. In Appleyard v. Tigges , 2019 N.Y. Slip Op. 29373 (Sup. Ct., Bronx County Dec. 6, 2019) ( here ), the Court declined to order the disclosure of a confidential

In Benjamin v. Yeroushalmi , 2019 N.Y. Slip Op. 08647 (2d Dept. Dec. 4, 2019) ( here ), the Appellate Division, Second Department considered an appeal involving an action to recover damages for breach of contract, breach of fiduciary duty and fraudulent inducement. The action involved the acquisition and development of real properly located in Mineola and Brooklyn, New York. Beginning in 2007, the plaintiffs, Jim Benjamin (“Jim”), a real estate developer and investor, and his

Decision day in the Appellate Division, First Department involved several cases in which the Court addressed allegations of fraud or fraudulent inducement. Many of the cases focused on the elements of the claim, while others focused on the absence of particularity and the duplication of claims doctrine. We look at some of those cases in today’s post. Lerner v. Newmark & Co. Real Estate, Inc. In Lerner v. Newmark & Co. Real Estate, Inc. , 2019 N.Y. Slip Op. 08611 (1st Dept. D

It is not uncommon for a nonparty to a litigation to ask their attorney whether they must comply with a subpoena duly served upon them. As the court in Manswell v. Baptiste , 2019 N.Y. Slip Op. 29360 (Civ. Ct., Kings County, Nov. 20, 2019) ( here ), made clear, non-compliance is not an option. A subpoena is a document that commands a person to testify at a trial or deposition and/or to produce documents specifically demanded. A subpoena duces tecum differs from a subpoena ad

Allegations of fraudulent inducement come in many contexts. Today, this Blog looks at a fraudulent inducement claim in the context of a merger. Kainz v. Bernstein , No. 19 Civ. 2499 (LLS) (S.D. N.Y. Nov. 13, 2019) ( here ). As this Blog has noted, one of the more challenging elements of a fraudulent inducement cause of action for a plaintiff to satisfy is the justifiable reliance element. To satisfy this element, a plaintiff must demonstrate that he/she exercised the means of

Economic duress, like duress, generally, provides an injured party with grounds to void a contract. Proof of the existence of economic duress requires a showing that one party to a contract has threatened to breach the agreement by withholding performance unless the other party agrees to some further demand. A party cannot be guilty of economic duress, however, for refusing to do that which it is not legally required to do or for threatening to do that which it is legally aut

A partnership is an association of two or more persons to carry on as co-owners of a business for profit. Partnership Law § 10(1). Typically, a partnership is memorialized in some type of writing, such as a partnership agreement. When, as in Giffuni v. Towler , 2019 N.Y. Slip Op. 51824(U) (Sup. Ct., Suffolk County Nov. 15, 2019) ( here ), there is no written partnership agreement between the parties, the court must determine whether a partnership-in-fact existed from the cond

Last week, two Appellate Division courts affirmed the dismissal of fraud claims because the parties asserting the claims failed to demonstrate justifiable reliance, and assert their claim within the statute of limitations. Atlas MF Mezzanine Borrower, LLC v. Macquarie Tex. Loan Holder LLC , 2019 N.Y. Slip Op. 08009 (1st Dept. Nov. 7, 2019) ( here ), and Beacon Estates, LLC v. Ingrassia , 2019 N.Y. Slip Op. 08042 (4 th Dept. Nov. 8, 2019) ( here ). In today’s post, this Blog l

Under New York’s rules of contract interpretation, “when parties set down their agreement in a clear, complete document, their writing should be enforced according to its terms.” Riverside S. Planning Corp. v. CRP/Extell Riverside, L.P. , 13 N.Y.3d 398, 403 (2009); W.W.W. Assoc. v. Giancontieri , 77 N.Y.2d 157, 162 (1990). “This rule is applied with special force ‘… where commercial certainty is a paramount concern, and where the instrument was negotiated between sophisticate

It is well settled that parties are free to contractually shorten a limitations period as long as their intent to do so is clearly stated and the time period is reasonable. Whitney Lane Holdings, LLC v. Don Realty, LLC , 159 A.D.3d 1163, 1165 (3d Dept. Mar. 8, 2018); John J. Kassner & Co. v. City of New York , 46 N.Y.2d 544, 550-551 (1979); see also CPLR 201, 213. But what is reasonable? As one might think, the answer to the question depends upon the facts and circumstances

To assert a fraud claim, a plaintiff must allege “a misrepresentation or a material omission of fact which was false and known to be false by defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury.” Mandarin Trading Ltd. v. Wildenstein , 16 N.Y.3d 173, 178 (2011) (internal quotation marks and citation omitted); Lama Holding Co. v Smith Barney , 88 N.Y.2d 413

The title of this post comes from the observation Justice Saliann Scarpulla made in Jobar Holding Corp. v. Halio , 2019 N.Y. Slip Op. 32813(U) (Sup. Ct., N.Y. County Sept. 23, 2019) ( here ), wherein she was asked to decide a motion to dismiss a complaint that asserted both direct and derivative claims. As discussed below, because, among other things, the complaint “mingled” the direct and derivative claims and otherwise failed to differentiate between the causes of action,

As this Blog has noted previously, the courts (in New York and Delaware) have refused to approve the settlement of shareholder litigation where class members receive no financial benefit and are asked to give broad releases to the defendants that are inimical to their rights. The latest court to follow this path is the Supreme Court, New York County, Commercial Division. In Matter of Xerox Corp. Consol. Shareholder Litig. , 2019 N.Y. Slip Op. 51467(U) (Sept. 10, 2019), Justic

The elements of a common law fraud claim in New York are well known to readers of this Blog: “a misrepresentation or a material omission of fact which was false and known to be false by the defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury.” Pasternack v. Laboratory Corp. of Am. Holdings , 27 N.Y.3d 817, 827 (2016) (internal citations and quotation mark

This Blog has often written about contract issues; in particular, the enforceability of a contract whether it be oral or written. In today’s post, we examine an implied contract – that is, an agreement arising from the conduct of the parties. In K2 Intelligence, LLC v. Frydman , 2019 N.Y. Slip Op. 32684(U) (Sup. Ct., N.Y. County Sept. 9, 2019) ( here ), the Court denied a motion to dismiss an implied contract action, holding that there was an issue of material fact as to whe