A “recurring question” New York courts grapple with is whether the facts alleged in a complaint give rise to claims for both breach of contract and fraudulent inducement. Cronos Grp. v. XComIP, LLC , 156 A.D.3d 54, 56 (1st Dept. 2017). Readers of this Blog know that a fraud claim, which “ar from the same facts , s identical damages and d not allege a breach of any duty collateral to or independent of the parties’ agreements<,> is subject to dismissal as redundant of the c

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

Promissory notes and mortgages, like many other contracts, frequently contain provisions requiring a non-breaching party to provide the breaching party with notice of their default as a condition precedent to taking any action to enforce rights as a result of the breach. Such action can include, but is not limited to, commencing legal action and/or accelerating the unpaid balance due under the note. Similarly, default notice provisions may require that, in certain circumsta

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. here.=">here</a>."> In Yang v. Dai , 2021 N.Y. Slip Op. 02125 (1st Dept. April 6, 2021) ( here ), the Appellate Division, First Department applied the foregoing pri

Corporations are legal entities distinct from their managers. As such, like any shareholder or investor, a corporation can buy shares in another corporation. When a corporation buys enough voting shares of another corporation to control that company, a parent - subsidiary relationship is created. Specifically, when a corporation buys less than 100%, but more than 50%, of another company, the latter company becomes a regular subsidiary of the former. If the corporation acquir

This Blog frequently addresses issues involving mortgage foreclosures in New York. < 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>"> , < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE

Although New York law does not provide for a single statute of limitations for breach of fiduciary duty or unjust enrichment claims, courts typically determine the applicable limitations period — three years under CPLR § 214 (4) or six years under CPLR § 213(1) — by analyzing the substantive remedy that the plaintiff seeks. IDT Corp. v. Morgan Stanley Dean Witter & Co. , 12 N.Y.3d 132, 139 (2009). Thus, for example, “ here the remedy sought is purely monetary in nature, court

When parties enter into contracts, they generally do so with the expectation of receiving the benefits of their respective bargains. Hopefully, these expectations are realized when all parties perform. A party’s failure to perform under a contract frequently results in a claim for breach of contract. “Generally, once a party to a contract has made a promise, that party must perform or respond in damages for its failure, even where unforeseen circumstances make performance

Fraud in the sale of securities. Such an allegation is often governed by an arbitration clause, requiring the parties to resolve their dispute before a FINRA tribunal. Not all investment claims, however, require resolution in arbitration. Sometimes the dispute can be adjudicated in a court of law. Such was the case in Pottorff v. Centra Fin. Group, Inc. , 2021 N.Y. Slip Op. 01645 (1st Dept. Mar. 19, 2021 ( here ). Pottorff v. Centra Financial Group, Inc. Background Pottorff

The nature of the equitable remedy of specific performance as related to litigation concerning real estate contracts has been explained by this BLOG < here =">here</a>"> and also addressed, inter alia , < here =">here</a>"> and < here =">here</a>"> . Suffice it to say, specific performance is an equitable remedy requiring the breaching party to perform under a contract and is frequently awarded in situations where the subject matter of a contract is unique – making an awar

Today, we examine Two Rivers Entities, LLC v. Sandoval , 2021 N.Y. Slip Op. 01527 (1st Dept. Mar. 16, 2021) ( here ), a case involving breach of contract and the faithless servant doctrine. Before we examine Two Rivers , we discuss the principles of law at issue in the case. Breach of Contract To sustain a breach of contract cause of action, a plaintiff must allege: (1) a valid agreement; (2) the plaintiff’s performance of its obligations under the agreement; (3) the defenda

It has long been the law in New York that a party’s disclaimer of reliance on extra-contractual representations and omissions will not preclude a fraudulent inducement claim unless: (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. Basis Yield Alpha Fund v. Goldman Sachs Group, Inc. , 115 A.D.3d 128, 137 (1st Dept

Disclosure in New York State court litigation is governed by Article 31 of the Civil Practice Law and Rules . In general, there “shall be full disclosure of all matters material and necessary in the prosecution or defense of an action, regardless of burden of proof….” CPLR 3101. “The words, ‘material and necessary,’ are … to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by shar

In the past, this Blog has examined cases in which the plaintiff brings a breach of contract claim and fraud claim in the same proceeding. < e.g. , here,=">here</a>," and="and" >here.=">here</a>."> e.g.,> Those cases show that where the two claims arise from the same facts and circumstances and seek the same relief, the fraud claim will be dismissed as duplicative of the contract claim. Indeed, as this Blog has explained previously, New York courts will not permit a fraud c

“Summary judgment is a judgment entered by a court for one party and against another party without a full trial.” ( Here .) The motion is designed to avoid unnecessary trials – that is, its purpose is to avoid a trial where there are no material issues of fact to be decided by the trier of fact ( e.g. , the judge or the jury). Summary judgment motions can also simplify a trial (known as a motion for partial summary judgment) because it can dispense with issues or claims for w

Many times, the applicable statute of limitations expires during the pendency of an already commenced action. No problem – right?, While generally speaking such an occurrence should not be a problem, issues may arise when an otherwise timely action is dismissed subsequent to the expiration of the limitations period. Depending on the nature of the dismissal, a plaintiff may be permitted to commence a new action notwithstanding the expiration of the applicable statute of lim

“You can’t have fraud if you disclose it,” said the motion court in Ibarrondo v. Evans , 2020 N.Y. Slip Op 30051(U) (Sup. Ct., N.Y. County Jan. 6, 2020) ( here ), aff’d , 2021 N.Y. Slip Op. 01200 (1st Dept. Feb. 25, 2021) ( here ). Yet, without alleging any new facts detailing how the alleged fraud was not disclosed, the plaintiff in Ibarrondo sought to amend her complaint to reallege the cause of action. In today’s article, we examine Ibarrondo . Ibarrondo involved a dispu

Frequently, the first question asked by a potential client when consulting about a new litigation matter is “can we sue them for our legal fees.” Clients are often dismayed to learn that attorney’s fees are not generally recoverable in litigation under the “American Rule,” because “ n the United States, the prevailing litigant is ordinarily not entitled to collect a reasonable attorney fee from the loser.” Alyeska Pipeline Services Co. v. Wilderness Society , 421 U.S. 240,

As the title of this article suggests, there are times in litigation where the facts simply do not support a claim or defense advanced by one or more of the parties. That was the case in Alston v. Golfo , 2021 N.Y. Slip Op. 30471(U) (Sup. Ct., N.Y. County Feb. 17, 2021) ( here ). Alston was commenced by a labor union welfare fund (the “Fund”) in July 2018 against one of its enrollees, Salvatore Golfo (“Salvatore”), and his former wife, defendant Denise Golfo (“Denise”), for

In today’s article, we examine familiar territory: complaints alleging breach of contract and fraudulent inducement. Kleber v. 10012 Holdings Inc. , 2021 N.Y. Slip Op. 30441(U) (Sup. Ct., N.Y. County Feb. 8, 2021) ( here ). As the title of the article indicates, Kleber involved the purchase of an “Uncle Sam” screen print edition 1/5 by Andy Warhol (the “Artwork”), which was signed and numbered by the artist. In April 2019, Plaintiff Claus Kleber and Defendant Guy Hepner (“He