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

By: Jeffrey M. Haber It is axiomatic that a plaintiff cannot succeed on his or her cause of action if there are no provable damages. It is, therefore, important that the plaintiff plead and prove each element of the claim, including the damages element. After all, damages are “an essential element” 1 of any tort cause of action. 2 This basic tenant of law was at the heart of Mohinani v. Charney , 3 a case in which plaintiff failed to prove damages resulting from defendants’

By Jonathan H. Freiberger This Blog frequently covers the pre-foreclosure notice requirements of RPAPL 1304 . 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>"> and < here =">here</a>"> . While this stuff is interesting, it also happens to be the subject of frequen

By Jonathan H. Freiberger Laborers and material suppliers (collectively, “Providers”) that add value to construction projects should be paid for their work by the owner, general contractor or whoever else brought them to the project in the first instance. If Providers do not receive payment despite their own performance, several remedies are available. For example, a simple claim for breach of contract may be brought by an unpaid Provider. Such remedies, however, may be in

By: Jeffrey M. Haber A recurring question that courts and litigants often encounter is how to apply the continuing wrong doctrine to a statute of limitations. Statutes of limitations restrict the time within which a defendant can be held liability for all types of alleged wrongdoing. Plaintiffs who do not pursue their rights within the limitations period will find the courthouse doors closed to their claims. For this reason, whether the statute of limitations has run is an i

By Jonathan H. Freiberger I say it all the time and I’m going to say it again, the readers of this Blog know that we frequently discuss numerous aspects of residential mortgage litigation. S ee, e.g., < here =">here</a>"> and the articles linked therein. A related subtopic that gets much attention in this Blog is the pre-foreclosure notice requirements of RPAPL 1304 . See, e.g. , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> ,

By: Jeffrey M. Haber In Yunjie Yang v. Knights Genesis Group , 2022 N.Y. Slip Op. 32126(U) (Sup. Ct., N.Y. County July 6, 2022) ( here ), the court was asked to consider various matters associated with the particularity requirement for pleading fraud. In this regard, by the court examined the group pleading doctrine and the specificity needed to maintain a fraud claim. The motion court was also asked to consider alter ego liability and the factual bases for piercing the corpo

By: Jeffrey M. Haber It has been more than two years since the start of the global pandemic. In the early days of the pandemic, many states imposed emergency measures to address the health crisis – measures that had the effect of reducing business operations or shutting down the business. New York was no different. Among the measures implemented were government-mandated closures. For retailers this meant the loss of business. With business shutdown, or substantially curtailed

By Jonathan H. Freiberger This Blog has written extensively on a variety of issues related to mortgage foreclosure, including those related specifically to limitations periods ( see, e.g., < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> and < here =">here</a>"> . As to the limitations period relevant to mortgage foreclosure actions, we have previously written that: An action to foreclose a mortgage is governed by a six-year statute

The question above was recently answered by Justice Francois A. Rivera in Reid v. Service , 2022 N.Y. Slip Op. 32017(U) (Sup. Ct., Kings County June 9, 2022) ( here ). As discussed below, the alleged fact – a claimed misrepresentation – was only an allegation, refuted by the undisputed facts of the case. Reid involved the administration by defendant over the Estate of Edgar Reid, Sr. (the “Estate”). Defendant had been granted limited letters of administration by the Kings Cou

By Jonathan H. Freiberger In our January 14, 2022, Blog Article entitled: “ Don’t Let Undue Delay Cause You to Lose Your Interest in Interest ”, we discussed, inter alia , the court’s discretion in the calculation of the amount of interest due to a lender in a mortgage foreclosure actions. Regarding the court’s equitable powers, we stated: CPLR 5001(a) provides, in relevant part that “in an action of an equitable nature, interest and the rate and date from which it shall be