By: Jeffrey M. Haber In Wilburger v. Ava Labs, Inc. , 2025 N.Y. Slip Op. 51072(U) (Sup. Ct., N.Y. County July 3, 2025) ( here ), plaintiff sued defendant for breach of contract, unjust enrichment, and fraudulent inducement related to unpaid compensation for services rendered under an Independent Contractor Agreement. Plaintiff alleged that he worked over 2,300 hours between 2019 and 2023, including tasks beyond the scope of the agreement, and was promised payment in AVAX cry

By: Jeffrey M. Haber Under New York law, an action based upon fraud must be commenced within six years of the date the cause of action accrued, or within two years of the time the plaintiff discovered or could have discovered the fraud with reasonable diligence, whichever is greater. The cause of action accrues when “every element of the claim, including injury, can truthfully be alleged”, “even though the injured party may be ignorant of the existence of the wrong or inj

By: Jeffrey M. Haber In Lopez v. O’Sullivan , 2025 N.Y. Slip Op. 32178(U) (Sup. Ct., Suffolk County) ( here ), the court declined to dismiss fraud claims, among others, finding that plaintiff sufficiently stated a claim for such relief against the defendants. The court determined that plaintiff provided detailed allegations of misrepresentations made by defendants, which induced him to enter into transactions that ultimately deprived him of ownership of his property. In doin

By: Jeffrey M. Haber In Bardy v. Bonnem , 2025 N.Y. Slip Op. 03698 (2d Dept. June 18, 2025) ( here ), plaintiff claimed an oral agreement entitled him to purchase a 25% ownership interest in a drive-thru coffee business in exchange for developing it. The agreement was allegedly based on a November 13, 2016 email offer, orally accepted three days later. Plaintiff allegedly performed substantial work without compensation, relying on the agreement. When the business succeeded,

By: Jeffrey M. Haber In One River Run Acquisition, LLC v. Milde , 2025 N.Y. Slip Op. 03653 (1st Dept. June 17, 2025) ( here ), the Appellate Division, First Department reinstated counterclaims for fraud and fraudulent transfers after they had been dismissed at the motion court level. The case arose from a failed joint venture between One River Run Acquisition, LLC (“ORRA”) and Greenwich Group International LLC (“GGI”) to develop a luxury resort in Colorado. In its countercla

By: Jeffrey M. Haber This Blog has written about the process known as “summary judgment in lieu of a complaint” on several occasions. The process, codified in CPLR 3213, is a procedure that is unique to New York practice. CPLR 3213 allows a plaintiff to move for summary judgment before the complaint is filed, directly challenging the defendant’s ability to contest the underlying claim. It bypasses traditional pleading and discovery and is available when the action is based

By: Jeffrey M. Haber In New York, litigants often grapple with the appropriate limitation period to apply to breach of fiduciary claims. There is no single statute of limitations that the courts and the parties can look to. “Rather, the choice of the applicable limitations period depends on the substantive remedy that the plaintiff seeks.” “Where the remedy sought is purely monetary in nature, courts construe the suit as alleging ‘injury to property’ within the meaning of C

By: Jeffrey M. Haber In today’s Fraud Notes, we examine Yudkin v. Evergreen Terrace 888 Corp. , 2025 NY Slip Op 03223 (2d Dept. May 28, 2025) ( here ), and Lapin v. Verner , 2025 NY Slip Op 03184 (2d Dept. May 28, 2025) ( here ). Yudkin involved the statute of limitations for fraud and the continuing wrong doctrine. Lapin involved the failure to plead the elements of a fraud claim. Yudkin v. Evergree Terrace 888 Corp. “A defendant who moves to dismiss a complaint pursuant

By: Jeffrey M. Haber In Libman v. Hershey Co. , 2025 N.Y. Slip Op. 31769(U), (Sup. Ct., N.Y. County May 5, 2025) ( here ), the motion court was asked to consider whether a front-of-the-package label on the Twizzlers candy wrapper violated General Business Law (“GBL”) §§ 349 and 350. Front-of-package labels are labels that manufacturers put on the front of packaged foods to give consumers basic nutrition information in a way that is easy to understand and allows them to compar

By: Jeffrey M. Haber A contract is an agreement between two or more parties to do something ( e.g. , provide goods or services) in exchange for a benefit. When one or more parties to a contract fail to perform a term in their agreement, they are in breach of that agreement. Most breaches fall into one of two categories: actual or anticipatory. In the former, a party to the contract fails or refuses to perform his/her obligations under the agreement or performs his/her oblig

By: Jeffrey M. Haber The elements of a claim for breach of contract are straightforward. The movant must establish: (1) the existence of a valid contract, (2) the plaintiff’s performance of the contract, (3) the defendant’s breach of the contract, and (4) damages resulting from the defendant’s breach. As readers of this Blog know, “ hen the terms of a written contract are clear and unambiguous, the intent of the parties must be found within the four corners of the contract, g

By: Jeffrey M. Haber It has long been the law that the business judgment rule applies to the decisions made by boards of directors of residential cooperatives and condominiums. “The business judgment rule ‘bars judicial inquiry into actions of corporate directors taken in good faith and in the exercise of honest judgment in the lawful and legitimate furtherance of corporate purposes.’” “ ourts must defer to a board’s determination if it was taken in furtherance of the corpo

By: Jeffrey M. Haber On July 8, 2019, this Blog wrote an article titled, “First Department Unanimously Affirms Denial of Motion to Compel Arbitration and Motion to Dismiss Fraud Claims” ( here ). The article examined the decision of the Appellate Division, First Department in BML Properties Ltd. v. China Construction America Inc. , 2019 N.Y. Slip Op. 05339 (1st Dept. July 2, 2019), in which the Court (as the title states) affirmed the denial of a motion to compel arbitration

By: Jeffrey M. Haber In Idi v. Sela , 2025 N.Y. Slip Op. 01890 (1st Dept. Apr. 1, 2025) ( here ), the Appellate Division, First Department addressed an issue of contract interpretation that this Blog often examines: enforcing written agreements that are complete, clear, and unambiguous on their face. Under New York law, written agreements are construed in accordance with the parties’ intent . “The best evidence of what parties to a written agreement intend is what they say in

By: Jeffrey M. Haber To state a claim for fraud, 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.” The claim must pleaded with particularity. Conclusory allegations will not suffice. Neither will allegations based on information and

By: Jeffrey M. Haber In Imperium Blue Acquisition Partners, LLC v. Marathon Asset Mgt., L.P. , 2025 N.Y. Slip Op. 01317 (1st Dept. Mar. 11, 2025) ( here ), the Appellate Division, First Department was asked to consider whether, among other things, plaintiffs satisfied the justifiable reliance element of a fraud claim. As discussed below, the Court held that plaintiffs failed to do so. In Essential Home Remodeling, Inc. v. Rossin , 2025 N.Y. Slip Op. 01314 (1st Dept. Mar. 11,

By: Jeffrey M. Haber Previously, this Blog examined the doctrine of res judicata ( here , here , here and here ). Under the doctrine, 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 but also to claims that could have been raised in the prior litigation. The rationale underlying the doctrine is that a party who h

By: Jeffrey M. Haber It is well-settled that a plaintiff asserting a derivative claim seeks to recover for injury to the business entity, regardless of whether the entity is a corporation, limited liability company, or partnership. A plaintiff asserting a direct claim seeks redress for injury to himself/herself individually. “The distinction between derivative and direct claims is grounded upon the principle that does not have an individual cause of action that derives from

By: Jeffrey M. Haber The question that clients most often ask their attorney is whether they can get back their attorney’s fees if they prevail on their claims. As we have explained in past articles ( e.g. , here , here , here , and here ), attorney’s fees are not generally recoverable in litigation under the “American Rule”. Under the American Rule, “attorney’s fees are incidents of litigation and a prevailing party may not collect them from the loser unless an award is auth

By: Jeffrey M. Haber Now and then a lawyer fails to meet a deadline or otherwise acts untimely. Several “saving” provisions in the Civil Practice Law and Rules (“CPLR”) are available to assist a lawyer when deadlines are missed. These include: CPLR 2005, CPLR 3012(d), and CPLR 5015(a). The key to applying one or more of these provisions is the reasonableness of the excuse for the delay or default. In Fox v. Gross , 219 A.D.3d 584, 585-586 (2d Dept. 2023), the Appellate Divi