By: Jeffrey M. Haber The Duplication Doctrine is well-known to readers of this Blog. In a nutshell, the doctrine holds that “ cause of action for fraud does not arise when the only fraud charged relates to a breach of contract.” 1 “To plead a viable cause of action for fraud arising out of a contractual relationship, the plaintiff must allege a breach of duty which is collateral or extraneous to the contract between the parties.” 2 A plaintiff must also allege that the reco

By Jonathan H. Freiberger Issues relating to contract interpretation are a frequent subject addressed in this Blog. “The fundamental, neutral precept of contract interpretation is that agreements are construed in accord with the parties’ intent and the best evidence of what the parties to a written agreement intend is what they say in their writing.” Henrich v. Phazar Antenna Corp. , 33 A.D.3d 864, 866-67 (2 nd Dep’t 2006) (citations, internal quotation marks and brackets

By: Jeffrey M. Haber It has been more than two years since this Blog has written about the account stated cause of action ( here ). On June 21, 2022, the Appellate Division, First Department gave us the opportunity to do so again. Hess 938 St. Nicholas Judgment LLC v. 936-938 Cliffcrest Hous. Dev. Fund Corp. , 2022 N.Y. Slip Op. 03989 (1st Dept. June 21, 2022) ( here ). “An account stated is an agreement between parties to an account based upon prior transactions between them

By Jonathan H. Freiberger When an action is timely commenced but gets dismissed, CPLR 205(a) may permit a plaintiff to commence a new action within six months of the dismissal notwithstanding the expiration of the limitations period. here,=">here</a>," and="and" the="the" introduction="introduction" to="to" this="this" article="article" is="is" taken="taken" our="our" former="former" article.="article."> CPLR 205(a) provides: New action by plaintiff. If an action is timel

By: Jeffrey M. Haber Previously, this Blog examined the doctrines of frustration of purpose and impossibility of performance in the context of Covid-19 ( here and here ). The doctrine of frustration of purpose is narrowly applied. 1 “In order to invoke the doctrine of frustration of purpose, the frustrated purpose must be so completely the basis of the contract that, as both parties understood, without it, the transaction would have made little sense.” 2 In other words, t

By: Jeffrey M. Haber Obtaining jurisdiction over a corporation that is incorporated and headquartered outside of the state can be difficult. A plaintiff must plead and prove that the corporation purposefully availed itself of 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 w

By: Jeffrey M. Haber It is common in commercial and business contracts for the parties to agree upon the law to be applied in the event a dispute arises between them. Typically, these choice of law provisions only apply to the substantive law of the chosen state. 1 They do not apply to the procedural laws of the jurisdiction. For application of the procedural laws, the parties must look to the forum state. In Baker v. Greentech Capital Advisors, L.P. , 2022 NY Slip Op. 0367

By: Jeffrey M. Haber It goes without saying that lawyers do not win every motion they make. When that happens, a lawyer can appeal the order or avail himself/herself of the two options afforded by CPLR § 2221: he/she can make: (1) a motion to reargue, or (2) a motion to renew. 1 In either case, the lawyer is asking the judge who ruled against him or her to change the outcome of the original motion. A motion to reargue is addressed to the discretion of the court. It must be

By: Jeffrey Haber Under New York’s Business Corporation Law (“BCL”), the Secretary of State is designated as the “agent of every domestic corporation and every authorized foreign corporation upon whom process against the corporation may be served.” 1 “In addition to such designation of the Secretary of State, every domestic corporation or authorized foreign corporation may designate a registered agent in this state upon whom process against such corporation may be served.” 2

By Jonathan H. Freiberger On May 24, 2022, the New York Court of Appeals decided Batavia Townhouses, Ltd. v. Council of Churches Hous. Dev. Fund Co., Inc. , and held that “General Obligations Law § 17-105, by its express terms, is the sole statute governing the tolling or revival of the statute of limitations for an action to foreclose a mortgage.” In so doing, the Court rejected plaintiff’s assertion that GOL §17-101 was equally applicable. This Blog has written numerous a

By: Jeffrey M. Haber In New York, as in other jurisdictions, settlement agreements “are judicially favored, will not lightly be set aside,” and will be enforced “with rigor and without a searching examination into their substance.” 1 A court called upon to enforce a settlement must be satisfied that the agreement is “clear, final and the product of mutual accord.” 2 Thus, an out-of-court agreement settling an action is binding on each party to the agreement only if “it is i

By: Jeffrey M. Haber In prior articles, we have examined the rules governing the bringing of shareholder derivative litigations ( e.g. , here and here ). Among other things, we discussed the rule requiring the plaintiff to be a shareholder of the company at the time of the wrongdoing to have standing to sue. The same principle applies to plaintiffs bringing direct claims against the corporation for wrongs allegedly inflicted on the plaintiff as a shareholder of the company.

By: Jeffrey M. Haber In today’s Fraud Notes, we examine three decisions issued by the Appellate Division, First Department in which themes familiar to readers of this Blog are at issue: pleading fraud with particularity ( e.g. , here and here ), making a material misstatement of present fact ( e.g. , here and here ) duplication of a breach of contract claim ( e.g. , here , here and here ), pleading justifiable reliance ( e.g. , here , here and here ), and no reliance and

By Jonathan H. Freiberger In this Blog’s August 23, 2021, article, entitled “ Second Department Finds Release Binding Despite Plaintiff’s Claim About Not Understanding the English Language ”(the “Prior Article”), we discussed, inter alia , the import of general releases and the difficulty that one may have invalidating same once executed. One of the leading cases on the law of releases, and as relied upon in the Prior Article, is Centro Emprésarial Cempresa S.A. v. America

By: Jeffrey M. Haber As readers of this Blog know, pleading and proving fraud is not easy. The law reporters (not to mention the pages of this Blog) are bursting with cases in which the courts have dismissed fraud actions due to pleading and proof deficiencies. Moskowitz v. Fischer , 2022 N.Y. Slip Op. 50385(U) (Sup. Ct., Suffolk County May 3, 2022) ( here ), is a recent example of this occurrence. To plead a viable cause of action for fraud, a plaintiff must allege that the

By: Jeffrey M. Haber Commercial transactions very often involve parties from different states and/or different countries. One party can be domiciled in New York, for example, while the other can be incorporated or headquartered in Delaware or London. When a dispute arises between such geographically diverse parties, questions concerning the jurisdiction of a court over the parties often get litigated. This was the situation in Kingstown Capital Management L.P. v. CPI Property

By Jonathan H. Freiberger 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>"> , < here =">here</a>"> , < here =">here</a>"> , < here =

By: Jeffrey M. Haber As a general matter, a fraud claim is not duplicative of a contract claim where the plaintiff alleges misrepresentations of fact, as opposed to misrepresentations of a future intent to perform. In IS Chrystie Mgt. LLC v. ADP, LLC , 2022 N.Y. Slip Op. 02950 (1st Dept. May 3, 2022) ( here ), this general principle of law was one of the issues before the Court. In particular, the First Department was asked to determine whether post-contractual misrepresentat

By: Jeffrey M. Haber In Wilsey v. 7203 Rawson Rd., LLC , 2022 N.Y. Slip Op. 02905 (4th Dept. Apr. 29, 2022) ( here ), the Appellate Division, Fourth Department considered principles of law familiar to readers of this Blog; namely, breach of contract and fraudulent misrepresentation. As we have noted in prior articles ( e.g. , here ), “ he essential elements of a cause of action to recover damages for breach of contract are the existence of a contract, the plaintiff’s perfor

By Jonathan H. Freiberger Statute of limitations issues frequently arises in mortgage foreclosure actions. 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>"> and < here =">here</a>"> . In this Blog article entitled: “ Revive a Time-Barred Claim Using § 17-101 of New York’s General Obligations La