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

By: Jeffrey M. Haber In past articles, we have noted the importance of identifying the statements claimed to be false and misleading. In this regard, we talked about the need to plead the who, what, where, when and how of the alleged fraud. In other words, the plaintiff must allege the first paragraph of any newspaper story. The reason for such pleading is to satisfy the particularity requirement of CPLR § 3016(b). Under CPLR § 3016(b), a plaintiff alleging fraud must provid

By Jonathan H. Freiberger For any number of reasons, a party asserting a claim or claims in a litigation may decide that it no loner wishes to pursue them. In such a case, CPLR 3217 outlines the manner in which claims, depending on the stage of litigation, may be discontinued. Among others, an action can be discontinued without a court order: “by serving upon all parties to the action a notice of discontinuance at any time before a responsive pleading is served or, if no r

By Jonathan H. Freiberger In general, to “establish prima facie entitlement to judgment as a matter of law in an action to foreclose a mortgage, a plaintiff must produce the mortgage, the unpaid note, and evidence of default.” M&T Bank v. Barter , 186 A.D.3d 698, 799 (2 nd Dep’t 2020) (citations omitted). As readers of this Blog know, depending on the defenses raised in borrower’s answer, lender may be required to submit additional proof to meet its prima facie case. See,

By Jonathan H. Freiberger A notice of pendency 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). 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 and, accordingly, “ person w

By: Jeffrey M. Haber One of the elements of a fraud claim that plaintiffs have difficulty satisfying is justifiable reliance. As evident from the reported decisions, the justifiable reliance element is most often used by defendants to secure dismissal of the claim against them. In LIK Hospitality LLC v. Otway , 2022 N.Y. Slip Op. 32979(U) (Sup. Ct., N.Y. County Aug. 31, 2022) ( here ), a case involving claims of, inter alia , fraudulent inducement, the justifiable reliance el

By: Jeffrey M. Haber Sometimes, a plaintiff will find it difficult to serve a defendant with process. There can be many reasons for such difficulties. Avoidance is one such reason. After all, no one wants to be sued. When a defendant tries to avoid service, a plaintiff may request permission from the court to serve the defendant using alternative means, such as service by publication. That was the situation in Big Yuk Chiu v. Louzon , 2022 N.Y. Slip Op. 32941(U) (Sup. Ct., N.

By Jonathan H. Freiberger Section 3025 of the CPLR permits litigants to amend their pleadings. Without leave of court, a party can amend a pleading once, as of right, “within twenty days after its service, or at any time before the period for responding to it expires, or within twenty days after service of a pleading responding to it.” CPLR 3025(a). After the expiration of the “as of right” time to amend pleadings, a party can seek the court’s permission (or all parties

By: Jeffrey M. Haber It is common to include a notice provision in commercial contracts and instruments, such as a loan, promissory note or guaranty. Notice provisions identify the party to whom written notice is to be given and specify the required method and means for delivery of written notice under the contract or instrument. Sometimes, the provision will require the parties to update the provision to account for changes to his or her contact information. As shown in Huds

By: Jeffrey M. Haber It is not often that a defendant can defeat a motion for summary judgment under CPLR § 3213. In Landa v. Friedman , 2022 N.Y. Slip Op. 32673(U) (Sup. Ct. N.Y. County Aug. 5, 2022) (here), however, that is exactly what happened. See, e.g. ,="<em>See</em>,&nbsp;<em>e.g.</em>," here, here and here.=">here</a>."> Under CPLR § 3213, a plaintiff may seek summary judgment in lieu of a complaint “ hen action is based upon an instrument for the payment of mone

By: Jeffrey M. Haber Previously, this Blog examined the doctrines of frustration of purpose and impossibility of performance in the context of Covid-19 ( See here , here , and here ). Because the Covid-19 pandemic and these doctrines continue to work their way through the courts, we do so again today. In McLearen Square Shopping Center Herndon, Va. L.P. v. BadaNara, LLC , the plaintiff, a commercial landlord, brought suit against defendant BadaNara, LLC (“BadaNara”) 1 an