By: Jeffrey M. Haber An operating agreement is the primary document that establishes the rights, powers, duties, liabilities, and obligations of the members of a limited liability company (“LLC”) between themselves and with respect to the company. The purpose of the document is to govern the internal operations of an LLC in a way that addresses the needs of the company’s owners (also known as “members”). Notwithstanding its importance, not every state requires an LLC to have

By: Jeffrey M. Haber It is not uncommon for courts to apply the law of another jurisdiction to resolve a dispute before it. In commercial matters, choice of law contract provisions and doctrines, such as the internal affairs doctrine, typically identify the law that should apply to the parties’ dispute. Palella v. TMO VI LLC , 2025 N.Y. Slip Op. 30373(U) (Sup. Ct., N.Y. County Jan. 27, 2025) ( here ), is a recent example of a New York court applying the law of another jurisdi

By: Jeffrey M. Haber As readers of this Blog know, to recover damages 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 element that most often spells failure for a plaintiff is reasonable reliance – that is, reliance on

By: Jeffrey M. Haber We have written frequently about the substance and scope of general releases. In New York, “a valid release constitutes a complete bar to an action on a claim which is the subject of the release.” If “the language of a release is clear and unambiguous, the signing of a release is a ‘jural act’ binding on the parties.” For this reason, “ release should never be converted into a starting point for … litigation except under circumstances and under rules

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 CP

By: Jeffrey M. Haber In Hobish v. AXA Equit. Life Ins. Co. , 2025 N.Y. Slip Op. 00183 (Jan. 14, 2025) ( here ), the New York Court of Appeals addressed the question of whether punitive damages can be awarded to a successful party under General Business Law (“GBL”) § 349. Answering the question in the negative, the Court, in an opinion written by Judge Shirley Troutman, resolved a split among the appellate divisions. GBL § 349 applies to virtually all economic activity, and i

By: Jeffrey M. Haber On numerous occasions, this Blog has examined the attorney-client privilege, the common interest doctrine, and the attorney work product doctrine. Today, we take another opportunity to explore the contours of these privileges. The Tension Between Disclosure and The Attorney-Client Privilege The Civil Practice Law and Rules (“CPLR”) directs that there shall be “full disclosure of all matter material and necessary in the prosecution or defense of an action

By: Jeffrey M. Haber 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 their writing.” As such, “a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms.” “Courts may not ‘by construction add or excise terms, nor distort the meaning of those used and thereby make a new con

By: Jeffrey M. Haber The justifiable reliance element has been described as a “fundamental precept” and a “venerable rule”. The requirement is one of the five elements of a fraud cause of action: (1) a misrepresentation or a material omission of fact; (2) which was false and known to be false by the defendant(s); (3) made for the purpose of inducing another person to rely upon it; (4) justifiable reliance of the other party on the misrepresentation or material omission; an

By: Jeffrey M. Haber In International Business Machs. Corp. v. GlobalFoundries U.S. Inc. , 2024 N.Y. Slip Op. 06425 (1st Dept. Dec. 19, 2024) ( here ), the Appellate Division, First Department was asked to consider whether a contractual jury waiver provision applied to a claim for fraudulent inducement where the plaintiff did not seek to void or rescind the subject contracts if it prevailed on its fraudulent inducement claim, but instead attempted to enforce the contracts and

By: Jeffrey M. Haber In almost every litigation, the question that clients most often ask is whether they can get back their attorney’s fees. As we have explained in past articles ( e.g. , here , here , and here ), attorney’s fees are not generally recoverable in litigation under the “American Rule”. The American Rule “was originally derived from federal legislation passed in 1853 which recognized that ‘losing litigants were being unfairly saddled with exorbitant fees.’” Un

By: Jeffrey M. Haber In today’s article, we revisit some familiar principles concerning claims of fraudulent inducement. We will also examine the impact of a contractual exculpatory clause on the viability of a fraud claim, as well as the impact of contractual provision that negates the basis for a fraud claim. Our examination of these issues and principles is centered on MREF REIT Lender 2 LLC v. FPG Maiden Holdings LLC , 2024 N.Y. Slip Op. 06161 (1st Dept. Dec. 10, 2024) (

“The doctrine of equitable estoppel prevents a party from denying her own expressed or implied admission which has in good faith been accepted and acted upon by another.” “The purpose of equitable estoppel is to preclude a person from asserting a right after having led another to form the reasonable belief that the right would not be asserted, and loss or prejudice to the other would result if the right were asserted.” Stated differently, the purpose of the doctrine “is to

By: Jeffrey M. Haber In litigation, parties often dispute the content and meaning of documents that form the basis of their dispute. Too many times a litigant will say that they “have a copy” of a document that is material and necessary to their claim or defense. But, the question is whether that document is the “best evidence” available. “The ‘oft-mentioned and much misunderstood’ best evidence rule simply requires the production of an original writing where its contents are

By: Jeffrey M. Haber One of the many changes that the Covid 19 pandemic brought to the workplace was remote employment for employees and consultants alike. When consultants from a different state perform services for a business or entity, questions arise, for dispute resolution purposes, about whether the court can exercise personal jurisdiction over them. In Applied Healthcare Research Mgt. v. Ibrahim , 2024 N.Y. Slip Op. 05734 (4th Dept. Nov. 15, 2024) ( here ), the Appella

By: Jeffrey M. Haber In Singh v. T-Mobile , 2024 N.Y. Slip Op. 05554 (2d Dept. Nov. 13, 2024) ( here ), the Appellate Division, Second Department affirmed the dismissal of an action for, among other things, breach of contract, breach of the covenant of good faith and fair dealing, and unjust enrichment. As discussed below, the Court did so on the basis of familiar principles of contract and quasi-contract law . In April 2018, plaintiff Cellray, Inc. (“Cellray”) entered into a

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 fifth, and Mr. Haber’s thirteenth, consecutive year of selection. Both Messrs. Freiberger and Haber were recognized for their work in business litigation . Super Lawyers Magazine® is an affiliate of Thomson Reuters. It recognizes att

By: Jeffrey M. Haber 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 their writing.” As such, “a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms.” “Courts may not ‘by construction add or excise terms, nor distort the meaning of those used and thereby make a new con

By: Jeffrey M. Haber In Emirates Islamic Bank PJSC v. NeoPharma LLC , 2024 N.Y. Slip Op. 51461(U) (Sup. Ct., N.Y. County Oct. 4, 2024) ( here ), Justice Gerald Lebovits addressed an interesting question concerning personal jurisdiction against them that caught our eye. The jurisdictional issue in Emirates Islamic Bank concerned whether personal jurisdiction over the defendants was necessary in order to enforce a foreign-country judgment through a CPLR 3213 motion. To exerci

By: Jeffrey M. Haber Statutes of limitations limit the time within which a defendant can be held liable for any type of alleged wrongdoing. Plaintiffs who do not pursue their rights within the limitations period will find the courthouse doors closed to their claims. For this reason, whether the statute of limitations has run is an important issue to consider before commencing an action. Important to this consideration is ascertaining when the claim sought to be asserted accru