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 Jonathan H. Freiberger Today’s article relates to renewal judgments under CPLR 5014 in the face of potentially defective service of process. This BLOG has previously addressed CPLR 5014 < here =">here</a>"> . Issues involving service of process have been addressed numerous times in this BLOG. See, e.g. , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here ="

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

RPAPL 1304 requires that at least ninety days before commencing legal action against a borrower with respect to a “home loan” (as defined in the relevant statutes), a lender must: send written notice to the borrower by certified and regular mail that the loan is in default; provide a list of approved housing agencies that offer free or low-cost counseling; and, advise that legal action may be commenced after ninety days if no action is taken to resolve the matter.

By: Jeffrey M. Haber In a prior post, we examined the impact of proofreading failures when drafting an agreement ( here ). In MAK Technology Holdings Inc. v. Anyvision Interactive Technologies Ltd. , 2024 N.Y. Slip Op 03376 (June 20, 2024) ( here ), the Court of Appeals examined a similar issue – whether typographical errors, grammatical mistakes, or other obvious errors render a contract ambiguous. In a 4-3 decision, written by Judge Cannataro, the Court held that grammatica

By Jonathan H. Freiberger In today’s BLOG we discuss AMK Capital Corp. v. Plotch . , a case decided on June 18, 2024, by the Appellate Division, First Department, that involves, inter alia , an interesting service of process issue. The Court in AMK Capital recognized that the appeal it was deciding is “an issue of apparent first impression – whether CPLR 308(2)’s restrictions prohibiting the inclusion of information indicating that a communication ‘is from an attorney or con

By: Jeffrey M. Haber In Noto v. Planck, LLC , 2024 N.Y. Slip Op. 03340 (1st Dept. June 18, 2024) ( here ), the Appellate Division, First Department examined an at-will employee’s decision to refrain from leaving his employment with the company that employed him and whether that decision constituted consideration sufficient to support the formation of a contract. As discussed, the First Department held that such action sufficed. Noto arose from an alleged agreement whereby d

By: Jeffrey M. Haber Section 3101 of the Civil Practice Law and Rules (“CPLR”) provides that, in general, “there should be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof” by, among others, a party and its representatives. The phrase “material and necessary” is “interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for

By Jonathan H. Freiberger In today’s BLOG we discuss Trento 67, LLC v. One West Bank, N.A. , a case decided on June 12, 2024, by the Appellate Division, Second Department, that involves, inter alia , the statute of limitations/acceleration in mortgage foreclosure actions 1 and Real Property Actions and Proceedings Law (“RPAPL”) 1501(4). 2 The Court in Trento recognized that the appeal it was deciding is “an issue of apparent first impression for an appellate court in this S

By: Jeffrey M. Haber Over the years, we have examined a motion for summary judgment in lieu of a complaint under CPLR § 3213 ( see , e.g. , here , here , here , here , and here ). Sometimes, the case that we examine involves a guaranty and whether it constitutes an instrument for the payment of money only. See , e.g. , here . A guaranty can be tricky for purposes of CPLR § 3213 because the instrument may include provisions that impose other obligations on the guarantor

By Jonathan H. Freiberger A significant part of commercial business dealings involves the drafting and interpretation of contracts. Accordingly, when disputes arise amongst businesspeople, interpretation of the agreements governing the parties’ relationship becomes a critical aspect of commercial litigation. Rules of contract interpretation, therefore, are a frequent topic addressed in this BLOG. See, e.g., < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>">

When parties negotiate an agreement, the terms of which are clear and unambiguous, their writing will be enforced according to its terms. In the event of a dispute, evidence outside the four corners of the document as to what the parties really intended is generally inadmissible.

By: Jeffrey M. Haber To state a cause of action for fraud, a plaintiff must allege “a material misrepresentation of a fact, knowledge of its falsity, an intent to induce reliance, justifiable reliance by the plaintiff and damages.” 1 The allegations must be stated with particularity to satisfy CPLR 3016(b). 2 Thus, the plaintiff must provide sufficient facts to support a “reasonable inference” that the allegations of fraud are true. 3 Conclusory allegations will not suffic

By Jonathan H. Freiberger A notice of pendency, also known as lis pendens , is a provisional remedy available to litigants seeking a judgment that affects title to real property. 5303 Realty Corp. v. O&Y Equity Corp. , 64 N.Y.2d 313 (1984). 1 The rules concerning notices of pendency are found in Article 65 of the CPLR. As the name suggests, a notice of pendency puts the world on constructive notice that an action has been commenced that may affect the title to the property

By: Jeffrey M. Haber When parties enter into a contract, each assumes that the language in their agreement accurately memorializes their understandings and intentions. For this reason, when a dispute arises, the courts in New York look to the intent of the parties as expressed by the language they chose to put into their writing. 1 A clear, complete document will be enforced according to its terms. 2 When the parties have a dispute over the meaning of their contract, the cou

By Jonathan H. Freiberger Today’s BLOG article touches on two areas of the law on which we have previously written – account stated 1 and duplication. 2 “An account stated is an agreement between parties to an account based on prior transactions between them with respect to the correctness of the account items and balance due.” Accent Collections, Inc. v. Cappelli Enterprises, Inc. , 94 A.D.3d 1026 (2 nd Dep’t 2012) (Citations and internal quotation marks omitted.) See als

By: Jeffrey M. Haber As readers of this Blog know, on December 6, 2019, the State of New York joined the vast majority of jurisdictions to adopt the Uniform Voidable Transaction Act (“UVTA”) in whole or in part. The New York version of the UVTA became effective on April 4, 2020. The UVTA governs fraudulent transfers. Although it has been four years since the effective date of the UVTA, there remain scores of cases in the court system that were filed under the former Debtor Cr

By: Jeffrey M. Haber In Cline v. Grodin , 2024 N.Y. Slip Op. 02586 (1st Dept. May 9, 2024) ( here ), the Appellate Division, First Department was asked to consider whether an agreement involving a limited partnership permitted the general partner to employ and compensate others, including the limited partners, to run the day-to-day business operations of the limited partnership. As discussed below, the Court answered the question in the affirmative. Cline involved Alcova Cap

By: Jeffrey M. Haber In Nosegbe v. Charles , 2024 N.Y. Slip Op. 02406 (4th Dept. May 3, 2024) ( here ), the Appellate Division, Fourth Department affirmed the dismissal of a fraud claim because the plaintiff failed to identify the statement claimed to be false. The Court also reinstated a claim that the motion court dismissed on the grounds that, inter alia , the text message on which the lower court relied was not documentary evidence within the meaning of CPLR 3211(a)(1). W