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

This BLOG has written extensively on issues related to residential mortgage foreclosure actions. Indeed, earlier this month, in “ PRETEXTUAL DE-ACCELERATION OF MORTGAGE DEBT ”, this BLOG provided an overview of the applicable statute of limitations in foreclosure, the calculation of the commencement thereof, and the acceleration and de-acceleration of mortgage debt. The Departments of the Appellate Divisions were not in agreement on some of these related issues and, accordi

“We make premium widgets with the highest quality metals.” Assume for the moment, the widgets are made from alloys that are prone to imperfections. Also assume that the speaker sincerely believed the statement to be true, notwithstanding the instances of imperfections. Is this statement an actionable fraud? In Matter of Sundial Growers, Inc. Sec. Litig. , 2021 N.Y. Slip Op. 01014 (1st Dept.Feb. 16, 2021) ( here ), the Court considered this question and, as discussed below, he

his BLOG has addressed too may issues regarding residential mortgages to mention. A mortgage foreclosure action “is equitable in nature and triggers the equitable powers of the court … nce equity is invoked, the court’s power is as broad as equity and justice require.” U.S. Bank Nat. Assoc. Losner , 145 A.D.3d 935, 937-38 (2 nd Dep’t 2016) (numerous citations and internal quotation marks omitted). For example, due to the equitable nature of mortgage foreclosure actions, “

It is well settled that communications between an attorney and a client for the purpose of obtaining legal advice are privileged and not discoverable unless the privilege is deemed to have been waived by the client. Veras Inv. Partners, LLC v. Akin Gump Strauss Hauer & Feld LLP , 52 A.D.3d 370, 374 (1st Dept. 2008) (citing Jakobleff v. Cerrato, Sweeney & Cohn , 97 A.D.2d 834, 835 (2d Dept. 1983)). A client who voluntarily testifies to a privileged matter, who publicly disclo

Last month, this Blog examined Shilon v. New Upreal LLC , 2021 N.Y. Slip Op. 30146(U) (Sup. Ct., Kings County Jan. 11, 2021), a case involving a motion by a nonparty to intervene in the litigation. ( Here .) Today, we look at 1467 Bedford Holdings LLC v. Spitzer , 2021 N.Y. Slip Op. 30302(U) (Sup. Ct., Kings County Feb. 1, 2021) ( here ), a case involving intervention as of right under CPLR §1012(a)(2). Under CPLR §1012(a)(2), a party may intervene as a matter of right “when

Freedom=">Freedom" Mortgage="Mortgage" Corp.="Corp." v.="v." Engel,="Engel</a>," in="in" which="which" it,="it," inter="<u>inter" alia ,="alia</u>," expressly="expressly" rejected="rejected" “pretextual="“pretextual" de-acceleration”="de-acceleration”" theory. ="theory.&nbsp;" This="This" BLOG’s="BLOG’s" treatment="treatment" Freedom ="<u>Freedom</u>" can="can" be="be" found="found" > here .="><em>here</em></a>."> This Blog has written extensively on issues related to residen

In late December 2020, Governor Cuomo signed into law the “COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020” (the “Act”), which has an effective date of December 28, 2020. While the Act covers certain residential eviction proceedings and tax lien foreclosures too, this BLOG will focus on the provisions of the Act that relate to residential mortgage foreclosures. A copy of the bookmarked December 31, 2020, memorandum from Chief Administrative Judge Lawrence

DCL § 273-a (conveyances by defendants) provides that a conveyance made without fair consideration by a defendant in an action for money damages is fraudulent as to the plaintiff in that action, regardless of intent, if the defendant fails to satisfy a resulting judgment in the action. Fair consideration encompasses two components: “whether the amount given for the transferred property was a ‘fair equivalent’ or not ‘disproportionately small’” and “whether the transaction ma

A client calls up an attorney and describes a situation in which two parties are litigating an issue that the client maintains she has interest in. She wants to be sure that her interests are not adversely affected by the outcome of that litigation. She asks the lawyer what she can do. The answer (for purposes of today’s article): intervene in the action. Intervention is a procedure by which a nonparty may join a pending litigation. In New York, intervention is governed by CP

In one of our BLOGS from last week, we addressed the remedy of specific performance in breached real estate contracts < HERE =">HERE</a>"> . The BLOG noted that, under certain circumstances when monetary damages are insufficient to make one of the parties whole after a breach, the equitable remedy of specific performance may be available to require the breaching party to perform. On January 20, 2021, the Appellate Division, Second Department, decided W Equities Acquisitions