By: Jeffrey M. Haber On March 20, 2018, the United States Supreme Court decided Cyan, Inc. v. Beaver County Employees Retirement Fund , in which it unanimously held that the Securities Litigation Uniform Standards Act of 1998 does not strip state courts of subject-matter jurisdiction over class actions involving claims brought under the Securities Act of 1933 (the “Securities Act”) and does not allow for the removal of those cases to federal court. Since that time, there has

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 Jonathan H. Freiberger Generally, folks borrow money to purchase real property. Such loans are typically secured by a mortgage on the property being purchased. The mortgage, when filed with the clerk of the county in which the property is located, creates a lien on the property. Upon full payment of the underlying loan, the borrower expects that a mortgage satisfaction will be filed with the Clerk to release the lien of the mortgage from the property. Indeed, RPAPL 192

By Jonathan H. Freiberger Specific Performance is an equitable remedy used to compel a party to perform under a contract. McGinnis v. Cowhey , 24 A.D.3d 629 (2 nd Dep’t 2005). Specific Performance is frequently used to enforce a party’s rights under real estate contracts. This Blog has previously discussed specific performance. See, e.g. , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> and < here =">here</a>"> . In EMF General Contracting Corp. v.

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 Jonathan H. Freiberger This Blog has recently written on the issue of contractual limitations of liability. < Here ="><em>Here</em></a><em>"> Proving that timing is everything, Jonathan H. Freiberger, one of Freiberger Haber LLP’s founding members, was interviewed for, and quoted in, an August 1, 2023, article appearing in Hotel News Now, titled: “Is Extreme Tourism Responsible Tourism? Hotels Catering to Adventurous Guests Seek to Limit Liability Exposure.” Hotel News N

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 Jonathan H. Freiberger As discussed in a prior blog article < here =">here</a>"> , a notice of pendency (or lis pendens) is a provisional remedy governed by Article 65 of the CPLR. The Court of Appeals, in 5303 Realty Corp. v. O & Y Equity Corp. , 64 N.Y.2d 313 (1984), one of the leading cases on the subject, described the a notice of pendency as a: potent shield to protect litigants claiming an interest in real property. The powerful impact that this device has on the a

By: Jeffrey M. Haber In Merchant Factors Corp. v. Crush Apparel & Accessories Inc. , 2023 N.Y. Slip Op. 50755(U) (Sup. Ct., N.Y. County July 21, 2023) ( here ), plaintiff, Merchant Factors Corp., a factoring and commercial financing services provider, brought suit against defendant Crush Apparel & Accessories Inc. (“Crush Apparel”), among others, 1 to recover for an allegedly fraudulent scheme to steal and divert millions of dollars in goods, services, and real property that

By Jonathan H. Freiberger In most situations, the contemplated goal of a mortgage foreclosure action is the sale of the subject property at public auction pursuant to a judgment of foreclosure and sale. Once a sale occurs, however, can it be set aside? “A court has the inherent power to ensure that a sale conducted pursuant to a judgment of foreclosure is not made an instrument of injustice in the exercise of its equitable powers, has the discretion to set aside a judicia

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

On July 12, 2023, the Appellate Division, Second Department, in U.S. Bank Trust, N.A. v. Rahman, addressed an issue that has been confusing lawyers for quite some time involving 22 N.Y.C.R.R. §202.48

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

The common law doctrine of caveat emptor is a well-accepted rule of law in New York. Under the doctrine, the courts will not impose liability on a seller of property for failing to disclose information material to the transaction when the parties deal at arm’s length, unless there is some conduct on the part of the seller which constitutes active concealment.

By Jonathan H. Freiberger Folks sign contracts of all types that purport to contain limitations of liability; but are they enforceable. In many cases, the answer is “yes”. “In the absence of a contravening public policy, exculpatory provisions in a contract, purporting to insulate one of the parties from liability resulting from the party’s own negligence, although disfavored by the law and closely scrutinized by the courts, generally are enforced, subject however to variou

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

By Jonathan H. Freiberger Because there have been a number of appellate decisions interpreting RPAPL 1304 , this Blog has written frequently on that topic. 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 =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> and < here =">here</a>"> . By way

By Jonathan H. Freiberger Today’s Blog involves motions to renew and reargue and successive motions for summary judgment. When a motion is denied, a movant has several options. One can accept the loss and move on. An appeal can also be pursued. Additional options are also available under CPLR 2221 , which permits a movant to move for renewal or reargument. A motion to renew is “properly made to the motion court (CPLR 2221) to draw its attention to material facts which, al

By Jonathan H. Freiberger Generally speaking, “term sheets” outline the basic terms of a transaction being negotiated by the parties thereto. This Blog has previously addressed the enforceability of “term sheets.” See, e.g., < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> and < here =">here</a>"> . On June 15, 2023, the Appellate Division, First Department, decided Parkmerced Investors, LLC v. WeWork Companie