By: Jeffrey M. Haber “The elements of a cause of action for fraud require a material misrepresentation of a fact, knowledge of its falsity, an intent to induce reliance, justifiable reliance by plaintiff and damages. A claim rooted in fraud must be pleaded with the requisite particularity under CPLR 3016(b).” 1 The failure to satisfy each element will result in dismissal of the claim. When a claim for fraud is predicated on a concealment or omission, “there must first be pr

By Jonathan H. Freiberger Mechanic’s liens are powerful tools that can be used by contractors, laborers and materialmen, among others, to assist in getting paid for work performed in improving real property. Indeed: The object and purpose of mechanics’ lien law was to protect a person who, with the consent of the of the owner of real property, enhanced its value by furnishing materials or performing labor in its improvement, by giving him an interest therein to the extent o

By: Jeffrey M. Haber We have noted previously that the “policy of to encourage arbitration.” 1 For this reason, “ ny doubts as to whether an issue is arbitrable will be resolved in favor of arbitration.” 2 When a party wishes to compel arbitration, that party must establish “the existence of a valid agreement to arbitrate”. 3 This means that, among other things, all parties to the agreement have the power and authority to enter into the agreement. In Wolf v. Hollis Operat

By: Jeffrey M. Haber A partnership is an association of two or more persons to carry on as co-owners of a business for profit. 1 The formation of a partnership requires a shared purpose and knowing mutual assent by all parties to the partnership. Indeed, “ o person can become a member of a partnership without the consent of all the partners.” 2 When there is no written partnership agreement between the parties, as was the case in Velez v. Mitchell , 2022 N.Y. Slip Op. 06877

By Jonathan H. Freiberger This Blog has previously discussed the discovery process and its relationship to the spoliation of evidence. [ See, e.g., < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> and < here =">here</a>"> .] Briefly stated, and as summarized from prior articles, in order for litigants to fully prosecute and defend lawsuits, the CPLR permits “full disclosure of all matter material and necessary in the prosecution or defense of an action, re

By: Jeffrey M. Haber One of the elements of a fraud claim that plaintiffs have difficulty satisfying is justifiable reliance. For this reason, the justifiable reliance element is most often cited by defendants to secure dismissal of the claim against them. Justifiable reliance is considered by the courts to be one of the more “nettlesome” elements of a fraud claim. 1 Whether a plaintiff justifiably relied on a misrepresentation or omission is a fact-intensive inquiry. 2 As

By: Jeffrey M. Haber It should go without saying that a plaintiff claiming breach of contract should demonstrate that the parties formed a contract that has been breached. In fact, as discussed below, contract formation is the first element of a breach of contract claim. Typically, when there is a written agreement, issues of contract formation do not arise. Instead, the issue often arises in the context of an oral agreement, the exchange of emails, letters of intent, and te

By: Jeffrey M. Haber “The attorney-client privilege shields from disclosure any confidential communications between an attorney and his or her client made for the purpose of obtaining or facilitating legal advice in the course of a professional relationship.” 1 The privilege “fosters the open dialogue between lawyer and client that is deemed essential to effective representation.” 2 “It exists to ensure that one seeking legal advice will be able to confide fully and freely

By Jonathan H. Freiberger Much has been written in this Blog about mortgage foreclosure actions. In this Blog’s prior article: “Second Department Addresses Issues Regarding Proof of Value of Foreclosed Property for the Purpose of Calculating Deficiency Judgment Under RPAPL 1371” , we discussed deficiency judgments. By way of brief background, loans are generally evidenced by a promissory note. The borrower’s repayment obligations are frequently secured by a mortgage on rea

By: Jeffrey M. Haber As a general matter, indemnity is defined to encompass a duty to make good on any loss, damage, or liability incurred by another. Therefore, when a person agrees to indemnify another, he or she agrees to hold the other person harmless for some loss or damage. Indemnification “may be based upon an express contract,” though it is “more commonly” implied “based upon the law’s notion of what is fair and proper as between the parties.” 1 Where the right to i

By Jonathan H. Freiberger This Blog, in “ The New York Court of Appeals Addresses the Issue of When a Mechanic’s Lien Can Be Placed on a Landlord’s Property By A Contractor Performing Work For A Tenant ,” quoting John P. Kane Co. v. Kinney , 12 Bedell 69 (1903), explained the purpose of a mechanic’s lien as follows: The object and purpose of mechanics’ lien law was to protect a person who, with the consent of the of the owner of real property, enhanced its value by furnishin

By Jonathan H. Freiberger As discussed in prior Blog articles, property owners sometimes require access to a neighbor’s property to make repairs to their own property. Neighbors can amicably (with legal counsel or not) arrange for the requested access, which, in many cases, will involve a formal written access agreement. Neighbors are not always neighborly, however, and refuse voluntary access. In such cases, the party requiring access can seek court ordered access pursuant

By: Jeffrey M. Haber On October 27, 2022, the New York Court of Appeals decided 34-06 73, LLC v. Seneca Ins. Co. , 2022 N.Y. Slip Op. 06029 (2022) (here), a case in which the Court determined the contours of CPLR § 203(f). In a unanimous decision, written by Judge Rivera, the Court held that plaintiffs’ initial complaint, alleging that defendant breached the insurance agreement between the parties, did not give defendant notice of a subsequently alleged reformation claim base

By: Jeffrey M. Haber In past articles, we have examined a motion under CPLR § 3213 ( see , e.g. , here , here , here , and here ). CPLR § 3213 is a procedural mechanism that allows a party to make a motion for summary judgment before filing a complaint in actions based upon “an instrument for the payment of money only or a judgment.” The purpose of the statute “is to provide an accelerated procedure where liability for a certain sum is clearly established by the instrument it

By Jonathan H. Freiberger As discussed previously in this Blog < here =">here</a>"> , the first question asked by a potential client when consulting about a new litigation matter is “can we sue them for our legal fees.” Clients are often dismayed to learn that attorney’s fees are not generally recoverable in litigation under the “American Rule,” because “ n the United States, the prevailing litigant is ordinarily not entitled to collect a reasonable attorney fee from the los

By: Jeffrey Haber In prior articles, we have talked about the importance of saying what you mean in a contract. ( E.g. , here and here .) When contracts are clear and unambiguous, the meaning ascribed to the words used therein will be enforced because they reflect the intent of the parties. Such was the case in Padron v. Granite Broadway Dev. LLC , 2022 N.Y. Slip Op. 05798 (1st Dept. Oct. 18, 2022). In Padron , plaintiff claimed that he sustained injuries when he slipped and

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 (with some exceptions, as discussed below) made at the time of

By Jonathan H. Freiberger Municipalities generally require home improvement contractors to be licensed to perform work. “Where a home improvement contractor is not properly licensed in the municipality where the work is performed at the time the work is performed, the contractor forfeits the right to recover for the work performed, both under the contract and on a quantum meruit basis.” Brightside Home Improvements, Inc. v. Northeast Home Improvement Services , 208 A.D.3d 4

By: Jeffrey M. Haber Since the early 20th century, a plaintiff alleging fraud in New York can recover only the actual pecuniary loss sustained as a result of a misrepresentation or omission, i.e. , the plaintiff’s out-of-pocket damages. 1 The damages recoverable under the out-of-pocket rule are intended to compensate plaintiffs for what they lost because of the fraud, not for what they might have gained. 2 The out-of-pocket rule was at issue in Danco Enters., LLC v. Livexliv

By Jonathan H. Freiberger Section 3101 of the 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, inter alia , a party and its representatives. “Material and necessary” is “to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues an