This month, Freiberger Haber LLP is celebrating its four-year anniversary. To say that we are excited to celebrate this milestone is an understatement. We know the firm could not have reached this achievement without the trust and support of our clients, friends, and colleagues. Since our founding, we have provided the sophistication and counsel of a large national law firm with the economy, flexibility, commitment, and personal attention of a small firm. As we move forward,

Frequently in litigation, a plaintiff commences an action before the identity of all defendants are known. For example, in mortgage foreclosure actions “John Does” and/or “Jane Does” are named as defendants because there may be unknown individuals or entities in possession of, inter alia , a leasehold contract with respect to, or hold some other interest in, the subject real property. Indeed, RPAPL 1311 provides a list of “necessary defendants” in a mortgage foreclosure ac

Depositions in real life are not the same as those depicted on television and in the movies. In Hollywood, counsel defending a deposition can say just about anything. As litigators know, the same cannot be said in real life. Lawyers are governed by law and rules, which if not followed can result in sanctions from the court. That is what happened in Brightman v. Corizon, Inc. , 2021 N.Y. Slip Op. 50735(U) (Sup. Ct., N.Y. County July 29, 2021) (here). A Primer on the Law and R

This Blog has frequently addressed evidentiary issues faced by foreclosing lenders. See, e.g., < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> ,< here =">here</a>"> . On July 21, 2021, the Appellate Division, Second Department, decided Deutsche Bank National Trust Co. v. Hossain , in which the Court addressed the sufficiency of a foreclosing lender’s evidence submitted in support of an application for a default judgment. The lender

When a person releases another from claims or the threat of claims, he/she is giving up the right to sue the other in connection with the subject of the release. Centro Empresarial Cempresa S.A. v América Móvil, S.A.B. de C.V. , 17 N.Y.3d 269, 276 (2011) (“Generally, a valid release constitutes a complete bar to an action on a claim which is the subject of the release.”). A release effectively eliminates all claims against another that are possessed by the party giving the re

“The attorney-client privilege shields from disclosure any confidential communications between an attorney and his or her client made for the purpose of obtaining or facilitating legal advice in the course of a professional relationship.” Ambac Assur. Corp. v. Countrywide Home Loans, Inc. , 27 N.Y.3d 616, 623 (2016). The privilege “fosters the open dialogue between lawyer and client that is deemed essential to effective representation.” Spectrum Sys. Intl. Corp. v. Chemical B

Sometimes during the course of litigation, through no fault of a litigant, his, her or their attorney becomes physically, mentally or legally incapable of representing the client. In such circumstances, being forced to proceed without the attorney could be prejudicial. CPLR 321(c) , which addresses such circumstances, provides: Death, removal or disability of attorney. If an attorney dies, becomes physically or mentally incapacitated, or is removed, suspended or otherwise

Commercial contracts often include a liquidated damages clause that provides for the payment of a predetermined amount of damages in the event of a breach by one of the parties. Such clauses are often found in contracts for the sale of real property, commercial leases, and construction contracts. Given the consequences of liquidated damages clauses, it is important to understand when and how such a clause will be enforced. What are Liquidated Damages? A liquidated damages cla

Summary judgment is a procedural device permitting a litigant to seek judgment without a trial in circumstances where all issues in a case can be decided by a judge as a matter of law. The rules related to motions for summary judgment can be found in CPLR 3212 . The Court of Appeals has described the virtues of summary judgment as follows: Since New York established its summary judgment procedure in 1921, summary judgment has proven a valuable, practical tool for resolving

A recurring theme in the jurisprudence concerning claims of fraud and breach of contract is duplication – that is, whether the fraud claim duplicates the breach of contract claim. It is well settled that “ cause of action to recover damages for fraud will not lie where the only fraud claimed arises from the breach of a contract.” Gorman v. Fowkes , 97 A.D.3d 726, 727 (2d Dept. 2012); see also Selinger Enters., Inc. v. Cassuto , 50 A.D.3d 766, 768 (2d Dept. 2008); Tiffany at

Editor's Note: This article has been edited to make corrections. Courts are frequently faced with the need to adapt to changing technology. This Blog < here =">here</a>"> previously addressed the case of Forcelli v. Gelco Corp. , 109 A.D.3d 244 (2 nd Dep’t 2013), in which the Second Department found that emails could satisfy the “subscribed” writing requirement of CPLR 2104 . Among other things, this Blog summarized the Forcelli Court’s analysis of the “subscription” re

Today’s Blog relates to extensions of time to serve a defendant under CPLR 306-b, a topic previously addressed by this Blog < HERE =">HERE</a>"> and < HERE =">HERE</a>"> . The background discussion in today’s Blog was taken from one of the linked prior Blogs. Under the present “commencement by filing” system, an action (or proceeding) (collectively, an “Action”) is commenced by filing (CPLR 304(a))the initiatory paper(s) with the “clerk of the court in the county in which

“It is a fundamental principle of our jurisprudence that the power of a court to declare the law only arises out of, and is limited to, determining the rights of persons which are actually controverted in a particular case pending before the tribunal.” Matter of Darcy M. , ___ A.D.3d ___ *1 (2 nd Dep’t June 9, 2021) (quoting Matter of Hearst Corp. v. Clyne , 50 N.Y.2d 707, 713 (1980)) (internal quotation marks omitted). Courts cannot issue “advisory opinions”. Matter of D

In New York, contracts are to be construed in accordance with the parties’ intent. See , e.g. , Slatt v. Slatt , 64 N.Y.2d 966 (1985). “The best evidence of what parties to a written agreement intend is what they say in their writing.” Slamow v. Del Col , 79 N.Y.2d 1016, 1018 (1992). Thus, a written agreement that is clear and unambiguous on its face must be enforced according to the plain meaning of its terms. See , e.g. , W.W.W. Assoc. v Giancontieri , 77 N.Y.2d 157, 162 (1

Care should be taken when drafting contracts so that the intention of the parties is set forth in a clear and unambiguous way. When contracts are clearly drafted, all parties should be aware of their rights, remedies and obligations thereunder. Further, the existence of clear and unambiguous contracts could streamline litigation if a dispute arises. The law is clear that “ hen the terms of a written contract are clear and unambiguous, the intent of the parties must be found

This BLOG has written extensively on issues related to residential mortgage foreclosure including, but not limited to: the notice requirements of RPAPL 1304 < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE =">HERE</a>"> and < HERE =">HERE</a>"> ; the acceleration and deacceleration of mortgage debt < HERE =">HERE</a>"> and < HERE =">HERE</a>"> ; and, Article 15 of the RPAPL < HERE =">HERE</a>"> and

In P & HR Solutions, LLC v. Ram Capital Funding , LLC, 2021 N.Y. Slip Op. 03554 (1st Dept. June 8, 2021) ( here ), the Appellate Division, First Department was faced with the situation that is all too common in commercial litigation, plaintiffs trying to assert contract and fraud claims without differentiation. In fact, over the past few months, this Blog has written about numerous appellate cases in which the plaintiffs’ fraud claims were dismissed because they were indistin

It is an understatement to say that the impact of the COVID-19 pandemic on all aspects of life was far reaching. This Blog has written numerous articles specifically addressing the impact of COVID-19 on the New York court system and its litigants. Among others, < 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 =">

Conversion is a tort that “takes place when someone, intentionally and without authority, assumes or exercises control over personal property belonging to someone else, interfering with that person’s right of possession.” Colavito v. New York Organ Donor Network, Inc. , 8 N.Y.3d 43, 49-50 (2006) (citation omitted). “In order to establish a cause of action to recover damages for conversion, the plaintiff must show legal ownership or an immediate superior right of possession

In today’s Fraud Notes, we examine Bullen v. CohnReznick, LLP (1st Dept. May 27, 2021) ( here ), and Sabourin v. Chodos , (1st Dept. May 27, 2021) ( here ), both decided by the Appellate Division, First Department. Bullen involved an alleged fraud in which CohnReznick was accused of being a participant through the issuance of audit reports that gave the entities being audited a clean bill of health – i.e. , the financial statements presented fairly, in all material respects