By: Jeffrey M. Haber In New York, foreign entities – that is, corporations, limited liability companies and partnerships authorized to do business in another jurisdiction or country – are required to register to business with the Secretary of State. 1 The failure to receive such authority deprives the foreign entity of the ability to affirmatively access the courts of New York and subjects any action commenced by the foreign entity to dismissal. 2 The purpose of the registra

By: Jeffrey M. Haber “The doctrine of forum non conveniens permits a US court to decline to exercise its judicial jurisdiction if the court would be a seriously inconvenient forum and if an adequate alternative forum exists.” 1 The doctrine presupposes at least two forums in which the defendant is amenable to process; the doctrine furnishes criteria for choice between them. 2 “The forum non conveniens determination is committed to the sound discretion of the trial court.

By: Jeffrey M. Haber In our last article ( here ), we examined a choice-of-law provision that, if applied, would violate New York public policy concerning usurious loans. In that case, Virginia law, which does not prohibit usury, was deemed “so violative of New York’s public policy that the choice-of-law provision” at issue was deemed invalid. The underlying predicate in that case was an agreement whereby the corporate defendant agreed to pay plaintiff $1,742,000 over the co

By: Jeffrey M. Haber On August 23, 2023, the Appellate Division, Second Department issued two decisions that briefly touched upon fraud causes of action: Hershman v. Bank of N.Y. Mellon , 2023 N.Y. Slip Op. 04369 (2d Dept. Aug. 22, 2023) ( here ), and Hillary Dev., LLC v. Security Title Guar. Corp. of Baltimore , 2023 N.Y. Slip Op. 04370 (2d Dept. Aug. 23, 2023) ( here ). In Hershman , the Court affirmed the dismissal of a fraud claim for failure to state a claim, and in Hill

By: Jeffrey M. Haber On numerous occasions, this Blog has examined the attorney-client privilege and the attorney work product doctrine. 1 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.” 2 Notwithstanding, the CP

By: Jeffrey M. Haber Defamation is broadly defined as any false statement that harms the reputation of a person, business, or organization. It is a false statement “‘that tends to expose a person to public contempt, hatred, ridicule, aversion or disgrace.’” 1 Defamation includes both libel and slander. Libel generally refers to defamatory statements that are published or broadcast in writing, while slander refers to statements that are verbally made. To state a cause of acti

By: Jeffrey M. Haber Most litigants think that financial documents, such as tax returns, are confidential. The same is true with regard to trade secrets and other proprietary business information. While those sentiments are most often true, as discussed below, litigants are, nevertheless, often surprised to learn that there are well-developed rules governing the protection of such information from public view. “Under New York law, there is a broad presumption that the public

By: Jeffrey M. Haber In 1990, Congress created the EB-5 Immigrant Investor Visa Program (“EB-5 Program”) to stimulate the U.S. economy through job creation and capital investment by foreign investors. The EB-5 Program offers foreign investors and members of their family an opportunity to obtain permanent residence in the United States ( i.e. , obtain a green card) and provides a source of financing for developers to use in, among other things, construction and business projec

By: Jeffrey M. Haber Under New York law, there are two methods by which a person can domesticate a foreign judgment – i.e. , a judgment obtained outside the State of New York. The first method is contained in Article 54 of the Civil Practice Law and Rules (“CPLR”), which codified the Uniform Enforcement of Foreign Judgments Act. Under CPLR § 5402(a), to recognize a foreign judgment, a judgment creditor must: (1) file the foreign judgment within 90 days of the date of the judg

By: Jeffrey M. Haber The voluntary payment doctrine bars recovery of payments voluntarily made with full knowledge of the facts, and in the absence of fraud or material mistake of fact or law. 1 Notably, there is a presumption that payments are voluntary. 2 Thus, to rebut the presumption, the plaintiff must show that he/she protested the payment. In order for a protest to be effective, it must be in writing and made at the time of payment. 3 In addition, the written protest

A couple of months ago, we examined NW Media Holdings Corp. v. IBT Media Inc. , 2023 N.Y. Slip Op. 30875(U) (Sup. Ct., N.Y. County Mar. 22, 2023) ( here ), a case in which a lower court addressed the question whether the destruction of millions of pages of data on a Google Workspace states a claim for trespass to chattels or conversion ( here ). As discussed in that article, the court concluded that the allegations concerning the destruction of such data sufficed to state a c

By: Jeffrey M. Haber A common theme in commercial litigation is the assertion of a breach of contract claim and a fraudulent inducement claim. Where both claims are asserted, more times than not, the fraud claim is dismissed under the duplication of claims doctrine – a principle of law that stands for the proposition that a fraud claim cannot stand side-by-side with a breach of contract claim when there is “a valid and enforceable written contract govern a particular subje

By: Jeffrey M. Haber The internal affairs doctrine is a “conflict of laws principle which recognizes that only one State should have the authority to regulate a corporation’s internal affairs—matters peculiar to the relationships among or between the corporation and its current officers, directors, and shareholders—because otherwise a corporation could be faced with conflicting demands.” 1 Stated differently, “ nder the internal affairs doctrine, claims concerning the relat

By: Jeffrey Haber Section 3211(a)(8) of the Civil Practice Law and Rule (“CPLR”) allows a party to “move for judgment dismissing one or more causes of action asserted against him on the ground that … the court has not jurisdiction of the person of the defendant.” Whether the court has personal jurisdiction over a non-domiciliary involves a two-part inquiry: (1) the exercise of jurisdiction must be permissible under New York’s long-arm statute; and (2) the exercise of jurisd

Query: does the recipient of an assignment via a contract or a note automatically have the right to assert tort claims, including fraud claims, arising from that contract or note? In SureFire Dividend Capture, LP v. Industrial & Commercial Bank of China Financial Services LLC , 2023 N.Y. Slip Op. 02841 (1st Dept. May 25, 2023) ( here ), the Appellate Division, First Department answered the question in the negative. The reason, as one would expect, depends on the language used

By: Jeffrey Haber 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

By: Jeffrey M. Haber To plead a fraud cause of action, a plaintiff must allege: (1) a misrepresentation of material fact; (2) falsity; (3) scienter; (4) justifiable reliance; and (5) damages. 1 Each element of the claim must be satisfied for the plaintiff to prevail on the cause of action. The failure to satisfy each element will result in dismissal of the claim. In Hayes v. Martinez , 2023 N.Y. Slip Op. 02587 (1st Dept. May 11, 2023) ( here ), the Appellate Division, First

By: Jeffrey M. Haber New York’s Business Corporation Law (“BCL”) § 630(a) provides that “ he ten largest shareholders,” of a corporation are “personally liable”, “jointly and severally”, “for all debts, wages or salaries due and owing to any of its laborers, servants or employees other than contractors, for services performed by them for such corporation.” For purposes of BCL § 630(a), “wages or salaries … mean all compensation and benefits payable by an employer to or for t

By: Jeffrey M. Haber In Lucky of 195 Madison St. Roofing & Contracting Inc. v. Creif, 109 LLC , 2023 N.Y. Slip Op. 02065 (1st Dept. Apr. 20, 2023) ( here ), the Appellate Division, First Department was asked to consider whether a legal opinion issued in connection with a mortgage transaction was fraudulent. As discussed below, the First Department affirmed the holding of the motion court, which found that the legal opinion in question was, for pleading purposes, fraudulent. A

By: Jeffrey M. Haber When is a joint venture a joint venture under the law? The easy answer to this question can be found when the parties enter into an express joint-venture arrangement or an express partnership arrangement. The hard answer, however, must be found in the facts and circumstances of the dispute between the parties. In Capstone Capital Group, LLC v. DCK Worldwide Holdings, Inc. , 2023 N.Y. Slip Op. 01953 (1st Dept. Apr. 18, 2023) ( here ), the answer to the qu