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 , ____ N.Y.S.3d ___, 2020 WL 4342753 (July 29, 2020) (citation and internal quotation marks omitted). Once served with process, a defendant must appear in an action to avoid a default. Section 320(a) of New York’s Civil Practice Law and Rules (the “CPLR”), which sets forth, inter alia, the manner in which a defendant can appear in an action provides that “ he defendant

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

We have often written about the justifiable reliance element of a fraud claim ( e.g. , here , here , here , here , and here ). Though the outcome of the issue is typically fact dependent, dismissals nevertheless occur because the plaintiff cannot demonstrate that reliance was reasonable or justified. Such was the case (for the most part) in Carmen E. Maestro Family Trust v. 449 Washington LLC , 2020 N.Y. Slip Op. 32054(U) (Sup. Ct., Kings County June 22, 2020) ( here ), the s

It is not uncommon for parties in commercial transactions to include in their contracts a provision that limits the types of damages recoverable in the event of a breach. Typically, these provisions include a limitation on the recovery of lost profits. An example of such a provision, drawn from the agreement in Fresenius Kabi USA, LLC v. Hetero USA, Inc. , 2020 N.Y. Slip Op. 03285 (1st Dept. June 11, 2020) ( here ), provides: “no party shall be liable to the other party for i

In prior posts, we examined the rules of contract formation. In our most recent post on the subject ( here ), we considered a case in which one of the issues before the court was whether there was an exchange of consideration sufficient to support the formation of a contract. Today, we examine Galarneau v. D’Andrea , 2020 N.Y. Slip Op. 03584 (3d Dept. June 25, 2020) ( here ), a case in which the Appellate Division, Third Department was asked to consider whether plaintiff demo

Recognizing the “continuing restrictions on the filing and prosecution of foreclosure matters in New York State arising during the course of the COVID-19 public health emergency,” on June 23, 2020, Chief Administrative Judge Lawrence K. Marks issued a memorandum (the “June 23 Memorandum”) on temporary protocols (the “Protocols”) for residential and commercial foreclosure proceedings. The temporary protocols became effective as of June 24, 2020. The Protocols are as follows:

It is well settled that a plaintiff may not “dress up a breach-of-contract claim as a fraud claim.” Cohen v. Koenig , 25 F.3d 1168, 1173 (2d Cir. 1994) (internal quotation marks omitted). In prior posts, we referred to this principle as the duplication of claims doctrine ( here , here and here ). In order for a tort claim to be actionable, there must be “a legal duty independent of the contract” that “has been violated.” Clark-Fitzpatrick, Inc. v. Long Is. R.R. Co. , 70 N.Y

In Pizzarotti, LLC v. Phipps & Co. , 2020 N.Y. Slip Op. 50696(U) (Sup. Ct., N.Y. County June 17, 2020) ( here ), Justice Gerald Lebovits of the Supreme Court, New York County, recently addressed a number of issues that we often examine, among them, a motion to dismiss on the basis of documentary evidence, breach of contract and common-law indemnification. We examine these issues and Pizzarotti below. Dismissal on the Basis of Documentary Evidence Under CPLR § 3211(a), a par

Just recently, we wrote about the importance of pleading fraud with particularity ( here ). As readers of this Blog know, when fraud is alleged, the plaintiff must plead the claim with particularity. Under CPLR § 3016 (b), the circumstances constituting fraud must be stated with sufficient detail “to permit a reasonable inference of the alleged conduct.” Pludeman v. Northern Leasing Sys., Inc. , 10 N.Y.3d 486, 491 (2008) (citation omitted). To satisfy the particularity requi

As noted on numerous occasions in this BLOG, the New York State Legislature has responded to the residential foreclosure crisis by promulgating a series of rules designed to protect residential homeowners. These rules, however, place additional burdens on foreclosing lenders and courts throughout New York State have demonstrated little sympathy for foreclosing lenders that fail to follow these rules. For example, RPAPL 1304 requires that at least ninety days prior to commen

In today’s post we examine, SHIR Capital, LLC v. Fortress Credit Advisors LLC , 2020 N.Y. Slip Op. 31825(U) (Sup. Ct., N.Y. County June 11, 2020) ( here ), a case involving an alleged fraud, breach of fiduciary duty, and misappropriation of trade secrets. We chose to SHIR Capital because of its common theme – pleading with particularity. As discussed below, pleading fraud, breach of fiduciary duty and the misappropriation of trade secrets requires particularity or specifici

What law should apply? In most cases, answering the question is more art than science. In contract cases, especially in complex commercial matters, the agreement at issue often (though not always) contains a choice of law provision. In that circumstance, the agreement will provide that any disputes related to the contract and/or its performance will be litigated under the laws of the jurisdiction identified in the contract. When there is no choice of law provision, a more co