By: Jeffrey M. Haber Typically, when a plaintiff claims to have been defrauded, he/she typically argues that the defendant made an affirmative misrepresentation of fact. Fraud does not, however, always concern an affirmative statement. Sometimes a person can perpetrate a fraud through the omission of a material fact. Where fraud by omission is claimed, the plaintiff must allege that the defendant had a duty to disclose the omitted fact. A duty to disclose arises when (1) the

By: Jeffrey M. Haber The statute of frauds provides that “ contract for the . . . the sale, of any real property, or an interest therein, is void unless the contract or some note or memorandum thereof, expressing the consideration, is in writing, subscribed by the party to be charged, or by his lawful agent thereunto authorized by writing.” 1 “To satisfy the statue of frauds, a memorandum evidencing a contract and subscribed by the party to be charged must designate the par

By Jonathan H. Freiberger As the Court of Appeals has explained it, “ ummary judgment permits a party to show, by affidavit or other evidence, that there is no material issue of fact to be tried, and that judgment may be directed as a matter of law, thereby avoiding needless litigation cost and delay. Where appropriate, summary judgment is a great benefit both to the parties and to the overburdened New York State trial courts.” Brill v. City of New York , 2 N.Y.3d 648, 651 (

By: Jeffrey M. Haber We start the new year off examining Dragons 516 Ltd. v. Knights Genesis Inv. Ltd. , 2023 N.Y. Slip Op. 50020(U) (Sup. Ct., N.Y. County Jan. 6, 2023) ( here ), a case involving many of the themes we often consider in our discussion of fraud and fraudulent inducement claims. Dragons involved a dispute between a lender and a borrower. Plaintiff, Dragons 516 Limited (“Dragons”), alleged that defendants fraudulently conspired to misrepresent the ownership str

By: Jeffrey M. Haber Obtaining jurisdiction over a person or corporation that is domiciled outside of the state can be difficult. A plaintiff must plead and prove that the person or entity purposefully used the resources of the state for a court to exercise personal jurisdiction over the defendant. The failure to do so will result in dismissal of the action. Under CPLR § 302(a)(1), a court can exercise specific personal jurisdiction over a non-domiciliary who “transacts any

By Jonathan H. Freiberger As previously addressed in numerous articles on this Blog, the New York State Legislature has responded to the residential mortgage foreclosure crisis by promulgating a series of rules designed to protect homeowners. These rules place additional burdens on foreclosing lenders, and courts throughout New York State have demonstrated little sympathy for noncompliance. For example, we have written frequently about residential mortgage foreclosure pract

By: Jeffrey M. Haber In ABN AMRO Capital USA LLC v. AMERRA Capital Mgt. , LLC, 2022 N.Y. Slip Op. 07178 (1st Dept. Dec. 20, 2022) ( here ), the Appellate Division, First Department considered two defenses that are often advanced to dismiss a claim for fraudulent inducement: the absence of justifiable reliance and duplication with a breach of contract claim. We examine those defenses in today’s article. ABN AMRO involved the extension of $360 million in loans to Transmar Comm

As readers of this Blog know, we have often written about the justifiable reliance element of a fraud claim. Considered by the courts to be nettlesome, justifiable reliance is often the most difficult element for plaintiffs to satisfy.

By Jonathan H. Freiberger If you are too busy to play along after reading the title of today’s article, it is my pleasure to help you out. FIRST -- CPLR 304 , which explains how to commence an action or special proceeding, provides at subparagraph (a): An action is commenced by filing a summons and complaint or summons with notice in accordance with rule twenty-one hundred two of this chapter. A special proceeding is commenced by filing a petition in accordance with rule t

By: Jeffrey M. Haber In commercial and business litigation, it is common for plaintiffs to assert claims against a business entity for wrongs committed by the entity. Often, plaintiffs will try to “pierce the corporate veil,” or get behind the corporate form, to hold the entity’s officers or members liable for the alleged wrongdoing. Since a plaintiff must show that an officer or member used his/her control over the entity to commit a fraud or other wrong against the plaintif

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