By: Jeffrey M. Haber A forum selection clause is contractual provision that sets forth the location designated by the parties for dispute resolution. Such clauses can be found in virtually every type of contract, e.g. , employment agreements, commercial contracts, and purchase and sale agreements. Parties require forum selection clauses to reduce litigation expenses, avoid adverse laws, and mitigate the risks associated with unknown judges and/or juries. Under New York law, “

By Jonathan H. Freiberger There are two “components and constitutional predicates of personal jurisdiction.” Keane v. Kamin , 94 N.Y.2d 263, 265 (1999). “One component involves service of process, which implicates due process requirements of notice and opportunity to be heard.” Id. (citations omitted). Even though a defendant may be subject to the jurisdiction of the Court, dismissal may be sought “based on the claim that service was not properly effectuated.” Id. (cit

By: Jeffrey M. Haber As readers of this Blog know, one of the elements of a fraud claim is reliance. In the typical case, the defendant makes a false or misleading statement directly to the plaintiff, which the plaintiff claims to rely on. In the less frequent case, the misrepresentation of fact is made to a third party that relied on the alleged fraudulent statement. The question is whether, in that circumstance, a plaintiff can state a fraud cause of action, despite the abs

By Jeffrey M. Haber As readers of this Blog know, to recover damages for fraud, a plaintiff must allege “a misrepresentation or a material omission of fact which was false and known to be false by defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury.” [1] When a plaintiff contends that he or she was fraudulently induced to take some action, such as enter

By Jonathan H. Freiberger A major concern raised by potential clients when deciding whether to commence litigation is whether they are entitled to recoup their legal fees if they prevail. This issue was recently addressed in our BLOG article entitled: “ ’Can I Sue ‘Em For My Legal Fees?’ ,” in which we explained, inter alia , that: Clients are often dismayed to learn that attorney’s fees are not generally recoverable in litigation under the “American Rule,” because “ n the U

By: Jeffrey M. Haber On June 5, 2017, the U.S. Supreme Court held that claims for disgorgement imposed as a sanction for violation of the federal securities laws must be commenced within five years of the date the claim accrues. 1 In doing so, the Court concluded that disgorgement “in the securities enforcement context is a ‘penalty’ within the meaning of Section 2462” of the U.S. Code. In concluding that disgorgement is a penalty, the Supreme Court looked at two factors. F

By: Jeffrey M. Haber In past articles, we have discussed the necessity of pleading the “who”, “what”, “when” and “how” of an alleged fraud. See , e.g. , here . In many respects, the requirement to plead the “who”, “what”, “where”, and “how” of an alleged fraud, primarily relates to the first element of the claim – falsity. 1 In this regard, a plaintiff alleging fraud must allege the time, place, and content of the defendant’s false representations, as well as the details of

By Jonathan H. Freiberger In this Blog’s article entitled: “ Revive a Time-Barred Claim Using § 17-101 of New York’s General Obligations Law ,” we discussed the general purpose of statutes of limitations, noting that: “The Statute of Limitations was enacted to afford protection to defendants against defending stale claims after a reasonable period of time had elapsed during which a person of ordinary diligence would bring an action. The statutes embody an important policy of

By: Jeffrey M. Haber Earlier this month, we wrote about how courts enforce contracts that are clear and unambiguous. The title of the article, “ Contracts That Say What They Mean, Mean What They Say ”, aptly describes this fundamental principle of contract interpretation. After all, a contract that is clear and unambiguous on its face reflects the intent of the parties. 1 And, the courts will enforce the parties’ intent when it is plainly written in the agreement. Courts wi

By Jonathan H. Freiberger This Blog frequently writes about decisions related to residential mortgage foreclosure actions. < Here =">Here</a>" and="and" the="the" articles="articles" hyperlinked="hyperlinked" therein.="therein."> One frequent topic that is always ripe for treatment is the repeated failure of lenders to demonstrate compliance with the requirements of RPAPL 1304 due to shortcomings in the evidence presented on their prima facie case. Suffice it to say, on N

By: Jeffrey M. Haber In today’s article, we consider a case in which, as the title indicates, timing is everything. Before we discuss the case, let’s consider the following scenario. The parties to a litigation reach a settlement in principle. They do so while a motion to dismiss the action (or a motion for summary judgment) is pending. Before the parties can execute the definitive agreement that memorializes their settlement, the court decides the motion and dismisses the a

By: Jeffrey M. Haber The doctrines of res judicata and collateral estoppel embody related but distinct concepts. They both stand for the general proposition that a party to a litigation should have only one bite at the apple and should not be permitted to relitigate the same issue over and over again. Under the doctrine of res judicata, a final judgment on the merits of a claim precludes re-litigation of that claim by a party, and those in privity with that party. 1 This mea

When a borrower borrows money from a lender the repayment obligation is evidenced by a promissory note signed by the borrower and delivered to the lender.

By: Jeffrey M. Haber In New York, contracts are to be construed in accordance with the parties’ intent. 1 “The best evidence of what parties to a written agreement intend is what they say in their writing.” 2 Thus, a written agreement that is clear and unambiguous on its face must be enforced according to the plain meaning of its terms. 3 Extrinsic evidence of the parties’ intent may be considered only if the agreement is ambiguous. 4 A contract is unambiguous if “on its f

By Jonathan H. Freiberger Defaults by a party to a real estate contract, whether a purchaser or a seller, are a fruitful source of litigation. Among other remedies available to an individual or entity aggrieved by a real estate contract default is specific performance, an issue discussed in this Blog’s article entitled: “ Specific Performance (That’s What I Want) – Would be a Terrible Song Title .” Briefly stated, because of the judicially recognized “unique” nature of real

By: Jeffrey M. Haber A forum selection clause is a contractual provision that sets forth the location designated by the parties for dispute resolution. Such clauses can be found in virtually every type of contract imaginable, e.g., employment agreements, commercial contracts, and purchase and sale agreements. Parties require forum selection clauses to reduce litigation expenses, avoid adverse laws, and mitigate the risks associated with unknown foreign judges and/or juries.

By Jeffrey M. Haber In Aybar v. Aybar , 2021 N.Y. Slip Op. 05393 (Oct. 7, 2021) ( here ), the New York Court of Appeals was asked to determine whether a foreign corporation that registers to do business in New York consents to the general jurisdiction of the State’s courts. As explained below, in a 5-2 decision, the Court held that registration under the Business Corporation Law (“BCL”) to do business in the State does not confer general jurisdiction over the corporation. Pro

By Jonathan H. Freiberger Many contracts contain provisions requiring that in the event of a default, one party must provide to the other notice of the purported default and an opportunity to cure before the valuable rights under the contract can be terminated. In general “ he purpose of a Notice to Cure is to specifically apprise the of claimed defaults in its obligations under the and of the forfeiture and termination of the if the claimed default is not cured within a

By: Jeffrey M. Haber In prior articles, we discussed the impact a disclaimer clause in a contract can have on a fraud claim. See , e,g. , here . Namely, a disclaimer clause can preclude a fraud claim when (1) the disclaimer is specific to the fact alleged to be misrepresented or omitted; and (2) the alleged misrepresentation or omission does not concern facts peculiarly within the knowledge of the non-moving party. 1 Disclaimer clauses often are worded as “no reliance” claus

By: Jeffrey M. Haber As a general matter, when a contract fails to conform to the agreement between the parties due to the mutual mistake of the parties however induced, or of the mistake of one party and fraud of the other, a court will reform the contract so as to make it conform to the actual agreement between the parties. 1 The mutual mistake must be material ( i.e. , it must involve a “fundamental assumption” of the contract). 2 However, it does not mean that the mist