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

By: Jeffrey M. Haber In today’s Fraud Notes, we examine two cases involving claims of fraudulent inducement and fraudulent concealment. In Board of Mgrs. of 570 Broome Condominium v. Soho Broome Condos LLC , 2024 N.Y. Slip Op. 04804 (1st Dept. Oct. 3, 2024) ( here ), the Court examined a fraudulent inducement claim in connection with the purchase of a condominium unit. As discussed below, the Court held that plaintiff sufficiently alleged that defendant asserted affirmative

By: Jeffrey M. Haber In Kapitus Servicing, Inc. v. MS Health, Inc. , 221 A.D.3d 504, 505 (1st Dept. Nov. 21, 2023) ( here ), the Appellate Division, First Department addressed the issue of whether a foreign limited liability company had the capacity to sue in New York due to defects in the entity’s corporate filings. In answering the question, the Court looked at the parties involved and who was the real party in interest with regard to the allegations asserted in the action

By: Jeffrey M. Haber In Rabinowitz v. Clarke , 2024 N.Y. Slip Op. 04627 ( st Dept. Sept. 26, 2024) ( here ), the Appellate Division, First Department addressed legal principles and causes of action that are familiar to readers of this Blog: fraud, the particularity requirement of CPLR 3016(b), the statute of limitations applicable to fraud claims, breach of contract and the duplication doctrine. We examine Rabinowitz below. Rabinowitz arose from plaintiff providing defenda

By: Jeffrey M. Haber During the Covid pandemic, conducting discovery, especially the taking of depositions, was challenging. Parties and their counsel had to adapt to the global health crisis. One adaptation was to remotely take depositions. As the courts opened and a new normalcy came into being, many parties and attorneys nevertheless continued to avail themselves of the remote deposition. In the Commercial Division of the Supreme Court of the State of New York, the option

By Jonathan H. Freiberger Discovery (or disclosure) in litigation, which is governed in New York State practice by Article 31 of the CPLR , is the mechanism by which litigants obtain facts and information from other parties and non-parties to support their claims and/or defenses and otherwise prepare for trial. This BLOG has previously addressed discovery issues. See, e.g. , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">

By: Jeffrey M. Haber In Seitz v. Marcum LLP , 2024 N.Y. Slip Op. 51141(U) (Sup. Ct., N.Y. County Aug. 30, 2024) ( here ), Justice Robert R. Reed of the New York County Commercial Division addressed the doctrine of in pari delicto , which “bars a party that has been injured as a result of its own intentional wrongdoing from recovering for those injuries from another party whose equal or lesser fault contributed to the loss.” The doctrine is available to a defendant as an aff

By: Jeffrey M. Haber In Hydraulic IP Holdings, LLC v. Tan , 2024 N.Y. Slip Op. 32930(U) (Sup. Ct., N.Y. County Aug. 16, 2024 ( here ), the court was asked to hold certain successor entities liable for the unsatisfied judgment (“Judgment”) issued by the motion court in plaintiff’s favor and against non-party Grace Apparel LLC (“Grace”). As discussed below, the motion court declined to grant summary judgment in either party’s favor, holding there were issues of fact as to whe

By: Jeffrey M. Haber Often, in the pre-action investigation of a client’s claims, it becomes evident that discovery would materially aid the client in framing his/her complaint or in learning the identities of the persons against whom the complaint should be brought. Obtaining pre-action discovery from the court, however, is not easy. As discussed below, the plaintiff must demonstrate the existence of a meritorious cause of action against the proposed defendant and the materi

By: Jeffrey M. Haber In DirecTV, LLC v. Nexstar Broadcasting, Inc. , 2024 N.Y. Slip Op. 04225 (1st Dept. Aug. 15, 2024) ( here ), the Appellate Division, First Department considered the viability of a fraudulent inducement claim and whether the plaintiff satisfied the elements of the claim. As discussed below, the Court held that the motion court “should have granted summary judgment in plaintiff’s favor on” this claim. DirecTV arose out of a retransmission consent agreement

By: Jeffrey M. Haber In Villaver v. Paglinawan , 2024 N.Y. Slip Op. 04159 (2d Dept. Aug. 7, 2024) ( here ), the Appellate Division, Second Department reversed the dismissal of a legal malpractice, breach of fiduciary duty, and intentional infliction of emotional distress action on collateral estoppel grounds. As discussed below, the Court found that, among other things, the claims at issue were not identical to those in the prior litigation and were not otherwise actively lit

By: Jeffrey M. Haber “A third-party beneficiary … is a person or entity that receives benefits from a contract between two other parties, even though they are not a party to the contract.” The concept of a third-party beneficiary stems from the notion that “it is just and practical to permit the person for whose benefit the contract is made to enforce it against one whose duty it is to pay” or perform. “ party asserting rights as a third-party beneficiary must establish (1)

By: Jonathan H. Freiberger CPLR 3213 , which is a procedural device permitting a plaintiff, under certain circumstances, to obtain summary relief at the very beginning of a lawsuit, provides, in pertinent part: When an action is based upon an instrument for the payment of money only or upon any judgment, the plaintiff may serve with the summons a notice of motion for summary judgment and the supporting papers in lieu of a complaint. The summons served with such motion papers

It is well-settled that leave to amend a pleading is to be freely granted. Leave may be denied, however, if the proposed amendment is palpably insufficient or patently devoid of merit, or if it would cause undue prejudice to a party. Amendments that seek to add a time-barred claim or party will be found to be patently devoid of merit, unless the untimeliness can be saved by application of the relation-back doctrine.

By Jeffrey M. Haber A confession of judgment is an agreement whereby a defendant or debtor agrees to the entry of judgment against him/her in an amount certain. It is a procedural device whereby the plaintiff or creditor can bypass the commencement of a lawsuit to obtain the amount “confessed.” Confessions of judgment are used in a variety of circumstances. For example, parties to a litigation may use a confession of judgment as part of a settlement whereby the defendant ag

By: Jeffrey M. Haber In Iberdrola Energy Projects v. Oaktree Capital Management L.P. , 2024 N.Y. Slip Op. 03798 (1st Dept. July 11, 2024) ( here ), the Appellate Division, First Department was asked to determine the scope of a no recourse provision in a contract between two sophisticated commercial actors relating to the construction of a power plant, and, relatedly, the extent to which certain non-parties to the contract (defendants) were insulated from liability by virtue

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 inju

By: Jeffrey M. Haber As readers of this Blog know, we have frequently written about how courts enforce contracts that are clear and unambiguous. In fact, many of our articles on this subject reflect this fundamental principle of contract interpretation in their title: “ The New York Court of Appeals Reminds Litigants That Words In Contracts Have Meaning ”; “ Contracts That Say What They Mean, Mean What They Say ” and “ Contracts That Say What They Mean, Mean What They Say Red