By: Jeffrey M. Haber New York courts favor the enforcement of forum selection clauses. They do so because they provide certainty and predictability in the resolution of disputes. here=">here</a>" and="and" >here.=">here</a>."> A forum selection clause is “prima facie valid and enforceable unless it is shown by the challenging party to be unreasonable, unjust, in contravention of public policy, invalid due to fraud or overreaching.” Because a forum selection clause is “prima

By: Jeffrey M. Haber Since inception of this Blog, we have written about many types of fraud, such as affinity fraud, common law fraud, fraud in the inducement, fraudulent concealment, and securities fraud. Until today, we have not directly examined fraud in the execution. 1 Fraud in the execution, or fraud in the factum, arises where a party did not know the nature or the contents of the document being signed, or the consequences of signing it, and was nonetheless misled i

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 Under well-settled principles, summary judgment in lieu of complaint is available for an instrument for the payment of money only. In considering such a motion, the courts will look at the four corners of the instrument sued upon in determining whether the instrument qualifies as one for the payment of money only. See, e.g. ,="3213.&nbsp;<em>See</em>,&nbsp;<em>e.g.</em>," here, here and here.=">here</a>."> Most cases under CPLR § 3213 involve promissor

By Jonathan H. Freiberger Personal guaranties are contracts of suretyship pursuant to which “one party as surety binds himself to the second party as creditor to pay a debt contracted by a third party either immediately upon default of the third party or after attempts to effect collection from the third party have failed.” General Phoenix Corp. v. Cabot , 300 N.Y. 87, 92 (1949). As to when the surety’s obligation arises: hether a surety is a guarantor of payment or a guara

By Jonathan H. Freiberger As noted in several of this Blog’s previous articles < here =">here</a>"> , < here =">here</a>"> and < here =">here</a>"> , when an individual or entity borrows money from a lender, the repayment obligation is typically evidenced by a promissory note. To secure the borrower’s repayment obligations, lenders generally request some form of collateral. When the collateral is an interest in real property, the borrower generally delivers a mortgage to t

By: Jeffrey M. Haber In prior articles, we examined the motion for summary judgment in lieu of complaint under CPLR § 3213. See , e.g. , here and here . As explained below, summary judgment in lieu of complaint is available for an instrument for the payment of money only. Today, we examine Sanghvi Diamonds LLC v. Agadjani , 2022 N.Y. Slip Op. 30738(U) (Sup. Ct., N.Y. County Mar. 8, 2022) ( here ), and Deutsche Bank Luxembourg S.A. v. Lehner , 2022 N.Y. Slip Op. 30739(U) (Su

By Jonathan H. Freiberger “The purpose of a deed is to pass title to land; it is the appropriate method of making a voluntary transfer of real property in the lifetime of the grantor.” 43 N.Y. Jur. 2d Deeds § 1 (citation/footnote omitted). A deed that is forged “lacks the voluntariness of conveyance.” Faison v. Lewis , 25 N.Y.3d 220, 224 (2015) (citation omitted). Accordingly, a deed with a forged signature “holds a unique position in the law; a legal nullity at its crea

By: Jeffrey M. Haber Today, we examine 79 Madison LLC v. Ebrahimzadeh , 2022 N.Y. Slip Op. 02052 (1st Dept. Mar. 24, 2022) ( here ), a judgment enforcement action under Article 52 of the CPLR that contains some interesting issues that this Blog has not addressed in quite some time, if at all. The first issue we examine is the forum selection clause. A forum selection clause is a contractual provision that sets forth the location designated by the parties for dispute resolut

This Blog has frequently written about numerous different issues regarding residential mortgage foreclosure. One recurring issue relates to the evidentiary proof necessary for the lender to satisfy its prima facie foreclosure case and/or to demonstrate its standing to commence its foreclosure action (when the borrower raises standing as a defense).

By Jonathan H. Freiberger It is common for contracts to require that one party procure, for its own protection and for the protection of the other party, specific types of insurance coverage and the dollar amounts of such coverage. Insurance procurement provisions are typically found in, among others, construction contracts and real property leases. Such insurance procurement provisions are material parts of the contracts in which they appear. On March 15, 2022, the Appella

By: Jeffrey M. Haber Under New York law, an action based upon fraud must be commenced within six years of the date the cause of action accrued, or within two years of the time the plaintiff discovered or could have discovered the fraud with reasonable diligence, whichever is greater. 1 The cause of action accrues when “every element of the claim, including injury, can truthfully be alleged”, 2 “even though the injured party may be ignorant of the existence of the wrong or i

By: Jeffrey M. Haber A recurring theme in fraud jurisprudence is the dismissal of fraud claims that duplicate breach of contract claims. As we have noted, a fraud claim will not survive a dismissal motion when there is “a valid and enforceable written contract govern a particular subject matter” and the recovery sought arises out of the same facts and circumstances. 1 There are exceptions to this rule, such as where “a legal duty independent of the contract itself has been

By Jonathan H. Freiberger In general terms, venue is the place where the trial of an action will take place. Venue issues in New York practice are governed by Article 5 of the CPLR . [Eds. Note: this BLOG has previously written about Article 5 of the CPLR < here =">here</a>"> and < here =">here</a>"> .] As indicated in our prior articles, the plaintiff, as the party bringing the proceeding, generally gets to choose, in the first instance, venue. Plaintiffs, however, do no

By: Jeffrey M. Haber In April 2021, this Blog examined the doctrines of frustration of purpose and impossibility of performance in the context of Covid-19 ( here ). In particular, we examined 1877 Webster Ave. Inc. v. Tremont Ctr., LLC , 2021 N.Y. Slip Op. 21113 (Sup. Ct., Bronx County Mar. 29, 2021), a case involving a commercial lease for space that was to be used as a night club and “for no other purpose”. The plaintiff commenced the action seeking a declaration that the p

By: Jeffrey M. Haber A common theme in commercial litigation is the assertion of a breach of contract claim and a fraudulent inducement claim. As readers of this Blog know, where both claims are asserted, more times than not, the fraud claim is dismissed under the duplication of claims doctrine. Stated simply, the doctrine provides that a fraud claim cannot stand side-by-side with a breach of contract claim when there is “a valid and enforceable written contract govern a pa

By Jonathan H. Freiberger As indicated in our previous articles regarding RPAPL 881, Real property owners or lessees (“Owners”) often find that their real property is in need of improvement and/or repair (the “Work”). [Eds. Note: this Blog has discussed RPAPL 881 < here =">here</a>"> and < here =">here</a>"> .] Sometimes, the Work requires access to adjoining property (a “Neighbor”). In many instances, a Neighbor graciously permits access to the Owner’s contractors so th

In drafting a contract, it is very common for the parties to include a choice of law provision. These provisions typically provide that a particular state’s law will apply regardless of conflict of laws principles. Questions arise as to which law to apply when a dispute takes place in a state that is different than the one in the contract. Today we examine Morplay Management Inc. v. Castro , 2022 N.Y. Slip Op. 30467(U) (Sup. Ct., Feb. 7, 2022) ( here ), in which the Court wa

By Jonathan H. Freiberger Just when you thought that there is nothing left to write about on RPAPL 1304 notices, a new case is decided with an interesting twist. Followers of this Blog know that we frequently address issues involving residential mortgage foreclosure. Decisions involving the pre-foreclosure requirements of RPAPL 1304 are frequently rendered by the Appellate Courts in New York and, accordingly, are analyzed in this Blog’s articles. See, e.g., < here =">here

By: Jeffrey M. Haber When someone speaks of a dispute resolution clause, lawyers most likely think the speaker is referring to an arbitration clause. But, as discussed in Innovative Concepts & Design, LLC v. AL Infinity, LLC , 2022 N.Y. Slip Op. 01122 (1st Dept. Feb. 22, 2022) ( here ), a dispute resolution clause can be something completely different. It can place dispute resolution in the hands of one of the parties to a contract. Such clauses are binding and enforced by th