Rule 3213 of the CPLR – which permits a litigant to move for summary judgment in lieu of filing a complaint – was designed to streamline litigation in situations where the statute is applicable, provides: When an action is based upon an instrument for the payment of money only or upon any judgment, the plaintiff may serve with the summons a notice of motion for summary judgment and the supporting papers in lieu of a complaint. The summons served with such motion papers shall

Last week, this Blog wrote about the ramifications of failing to meet a deadline or otherwise act in a timely manner ( here ). In today’s post, we examine the ramifications of failing to meet the procedural requirements set forth in a statute. In Lincoln Sq. Synagogue, Inc. v. Lexington Strategies, LLC , 2020 N.Y. Slip Op. 32793(U) (Sup. Ct., N.Y. County Aug. 26, 2020) ( here ), the Court dismissed a turnover proceeding against a garnishee because the judgment creditor failed

Conducting business with family, friends, or neighbors can be a rewarding endeavor. But, like any relationship, it can also be painful, both emotionally and economically. When the latter occurs, lawsuits can follow. The same is true with romantic relationships, especially when the health and well-being of a party to the relationship is at issue. In today’s Fraud Notes, we examine two “relationship” cases. In Salimi v. Raffaelle , 2020 N.Y. Slip Op. 32749(U) (Sup. Ct., N.Y. C

Every now and then a litigant or counsel fails to meet a deadline or otherwise acts in an untimely manner. Sometimes there is a reasonable excuse and sometimes there is not. Several “saving” provisions in the CPLR are available to assist a litigant or counsel when deadlines are missed. Some such provisions are as follows: CPLR 2005 provides that “ pon an application satisfying the requirements of subdivision (d) of section 3012 or subdivision (a) of rule 5015, the court s

In our last post ( here ), we examined the Statute of Frauds – General Obligations Law § 5-701 through § 5-705 – in the context of employment at-will contracts. We noted that such contracts are capable of performance within one year – a requirement under GOL§ 5-701(a)(1). Cron v. Hargro Fabrics , 91 N.Y.2d 362, 367 (1998). As the Court of Appeals has explained, because an at-will employment relationship may be “freely terminated by either party at any time for any reason or e

Like most states in the country, New York is an “employment at will” state. This means that if there is no written agreement between the employer and employee governing when the employer can fire the employee, the employer has the right to fire the employee at any time for any reason. Smalley v. Dreyfus Corp. , 10 N.Y.3d 55, 58 (2008). The Court of Appeals has “repeatedly refused to recognize exceptions to, or pathways around, these principles.” Id. Thus, when an employee

On August 19, 2020, District Administrative Judge, Hon. Andrew A. Crecca, issued a Memorandum regarding the “Return to In-Person Operations in the 10 th Judicial District, Suffolk County – Phase 4.1” (the “Memo”) < HERE =">HERE</a></strong>"> . According to the Memo, Phase 4.1 “builds upon our reopening efforts to date by providing for enhanced in-person operations in all courts throughout the District, the continued use of virtual technology where we have found it to be ap

Judicial protection of confidential information is often sought to shield highly sensitive information, trade secrets and financial information from the public. One way to achieve this objective is to obtain an order that seals the record from public view. In New York, the issue is governed by Section 4 of the Judiciary Law and Section 216.1(a) of the Uniform Rules for Trial Courts. Section 4 of the Judiciary law provides that judicial proceedings “shall be public, and ever

Litigation can be a long and drawn out process. As a result, parties sometimes die during the pendency of a lawsuit. In such a case, CPLR § 1015 – Substitution Upon Death – is instructive and provides: (a) Generally.  If a party dies and the claim for or against him is not thereby extinguished the court shall order substitution of the proper parties. (b) Devolution of rights or liabilities on other parties.  Upon the death of one or more of the plaintiffs or defendants in

In the past, we have written about many aspects of arbitration. Our articles have covered issues such as the duty to arbitrate, as well as the bases upon which to confirm or vacate an arbitral award. Rarely, if ever, have we examined a motion to stay a court proceeding pending the outcome of an arbitration. Today, in discussing CMBSW Grp., LLC v. Inverness Counsel, LLC, 2020 N.Y. Slip Op. 32525(U) (Sup. Ct., N.Y. County July 31, 2020) (here), we do so. Typically, a party will

Generally, when a loan is made by a lender that is secured by real property, two of the documents delivered to the Lender by the borrower are a promissory note (which evidences the obligation to repay the borrowed sums) and a mortgage (which secures the obligation to repay the note by giving the lender a security interest in real property). If a loan secured by a mortgage goes into default and the lender decides to protect its rights through litigation, a choice must be made

The elements of a cause of action for breach of contract are: (1) the existence of a contract between plaintiff and defendant; (2) performance by one party; (3) the other party’s failure to perform; and (4) damages resulting from such failure to perform. JP Morgan Chase v. J.H. Elec. of New York. Inc. , 69 A.D.3d 802, 803 (2d Dept. 2010). When a party breaches a contract, that breach may excuse the non-breaching party from further performance if the breach is so substantial t

Statutes of limitations limit the duration of a defendant’s liability for all types of alleged wrongdoing. Plaintiffs who do not prosecute their claims within the limitation period will find the courthouse doors closed to their causes of action. The United States Supreme Court has explained that the reason for such statutes is to free a defendant from stale claims. Statutes of limitation, like the equitable doctrine of laches, in their conclusive effects are designed to promo

It makes sense that a “plaintiff appears merely by bringing it.” Deutsche Bank Nat. Trust Co. v. Hall, 185 A.D.3d 1006 (citation and internal quotation marks omitted). Once served with process, a defendant must appear in an action to avoid a default.

In our prior Blog “ ’Love Thy Neighbor’ Is Not Always the Case ,” which should be reviewed in conjunction with the instant Blog, section 881 of New York’s Real Property Actions and Proceedings Law (the “RPAPL”) was explored. Briefly stated, access to a neighboring property is sometimes necessary to improve or repair one’s own property (the “Work”). In many cases neighbors can amicably resolve such access issues. This can be done informally or through a formal access agree

Over the past several months, this Blog has examined cases in which plaintiffs brought contract claims and fraud claims in the same action ( here , here and here ). As discussed in those posts, the courts dismissed the cases because the plaintiffs failed to allege an independent basis upon which the claims could stand side-by-side. Similarly, this Blog has examined cases involving veil piercing and the Statute of Fraud. As to the former, the courts dismissed the actions bec

This Blog has previously addressed issues concerning mortgage contingency clauses. < HERE =">HERE</a>"> Briefly stated, mortgage contingency clauses in contracts for the sale of real property make the sale contingent on the purchaser obtaining a purchase money mortgage consistent with the clause’s requirements. The failure to obtain a mortgage commitment after a diligent effort to do so, permits the potential purchaser to cancel the contract and demand the return of a dow

In today’s article, we examine ASV Techs., Inc. v. Sterling Natl. Bank , 2020 N.Y. Slip Op. 32208(U) (Sup. Ct., N.Y. County July 7, 2020) ( here ). ASV involved the Statute of Frauds and the impact emails can have on the court’s analysis in deciding whether the Statute of Frauds will bar a breach of contract claim. Background AVS involved an alleged breach of a computer program end-user license agreement (“EULA”) between plaintiff, AVS Techs., Inc. , and the predecessor-in-

It is not uncommon for plaintiffs to assert breach of contract and fraud in the same action. It is also not uncommon for the fraud claim to be dismissed as duplicative of the contract claim. Indeed, the reporters are brimming with cases in which the fraud claim is dismissed because it is nothing more than a breach of contract claim dressed up in the language of fraud. The cases we examine today, East Coast Int’l Tire Group, Inc. v. New York Tire Factory, Inc. , 2020 N.Y. Slip

This Blog has previously addressed “economic duress” and the “voluntary payment doctrine.” < HERE =">HERE</a>"> , < HERE =">HERE</a>"> and < HERE =">HERE</a>"> “Economic duress” is a theory upon which a “complaining party to void a contract and recover damages when it establishes that it was compelled to agree to the contract terms because of a wrongful threat by the other party which precluded the exercise of its free will.” 805 Third Ave. Co. v. M.W. Realty Assoc. , 58 N