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

On January 19, 2021, the Appellate Division, First Department issued three decisions involving claims of fraud. See United Natural Foods, Inc. v. Goldman Sachs Grp. , 2021 N.Y. Slip Op. 00276 (1st Dept. Jan. 19, 2021) ( here ); KS Trade LLC v. International Gemological Inst., Inc. , 2021 N.Y. Slip Op. 00259 (1st Dept. Jan. 19, 2021) ( here ); and Itria Ventures LLC v. Provident Bank , 2021 N.Y. Slip Op. 00257 (1st Dept. Jan. 19, 2021) ( here ). Although these cases involved d

It has long been held that “promissory statements as to what will be done in the future are not actionable.” Adams v. Clark , 239 N.Y. 403, 410 (1925). However, when the promissory statement is “made with a preconceived and undisclosed intention of not performing it,” it becomes an actionable misrepresentation of existing fact. Sabo v. Delman , 3 N.Y.2d 155 (1957). The foregoing principles have been examined by this Blog numerous times ( e.g. , here and here ). In today’s ar

The lyrics to the song “Money (That’s What I Want)”, written by Berry Gordy and Janie Bradford and covered by, inter alia , by The Beatles, seem shortsighted when contemplating available remedies in a breach of contract action. Thus, according to the song “money don’t get everything, it’s true, what it don’t get, I can’t use, now give me money, that’s what I want.” While money damages in an action at law may “afford a full and complete remedy” to make a plaintiff whole in t

When a person claims fraud, he/she typically claims that the alleged wrongdoer made an affirmative misrepresentation of fact. Fraud does not, however, always concern an affirmative statement. Sometimes a person can perpetrate a fraud through the omission of a material fact. For this reason, when alleging fraud, a plaintiff may allege that the defendant made “a misrepresentation or a material omission of fact which was false and known to be false.” Mandarin Trading Ltd. v. Wil

When a plaintiff initiates a lawsuit, he/she must file and serve a summons and complaint. Typically, the plaintiff will hire a process server to effect service. If the process server errs in making service (that is, service is deemed to be improper and defective), the defendant may object and assert an affirmative defense that the court lacks personal jurisdiction over him/her because service was defective. However, as discussed in today’s post, this defense can be waived if

Like attending school in your underwear, missing a scheduled Court appearance is a recurring nightmare for attorneys. If an appearance is missed, there can be several and severe consequences. Rule 22 NYCRR 202.27 (Defaults) provides: At any scheduled call of a calendar or at any conference, if all parties do not appear and proceed or announce their readiness to proceed immediately or subject to the engagement of counsel, the judge may note the default on the record and ent

A “recurring question” courts in New York grapple with is whether the facts alleged in a complaint give rise to sustainable 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 red

If a plaintiff fails to prosecute an action dismissal for “want of prosecution” may be obtained pursuant to CPLR 3216 , which provides, in pertinent part: (a) Where a party unreasonably neglects to proceed generally in an action or otherwise delays in the prosecution thereof against any party who may be liable to a separate judgment, or unreasonably fails to serve and file a note of issue, the court, on its own initiative or upon motion, with notice to the parties, may dismis

Venue in litigation is where the trial of an action will take place. Venue, which is governed by Article 5 of the CPLR , is initially chosen by the plaintiff at the commencement of the action. Sometimes an improper venue is chosen by the plaintiff and other times, while correct, a more convenient venue is available. This BLOG has previously addressed “ Change of Venue Procedures .” Today’s article will focus on some issues related to the discretionary change of venue purs

To plead a claim for fraud in the inducement or fraudulent concealment, a plaintiff must allege facts to support the claim that it justifiably relied on the alleged misrepresentations. A sophisticated party, like the plaintiff in MBF Clearing Corp. v. JPMorgan Chase Bank, N.A. , 2020 N.Y. Slip Op. 07504 (1st Dept. Dec. 15, 2020) ( here ), must allege that it exercised due diligence and took affirmative steps “to protect itself against deception.” DDJ Mgt., LLC v. Rhone Group