Many cases involving an alleged fraud typically rise and fall on the reliance element of the cause of action. Sometimes, the issue before the court is the state of mind of the alleged fraudster. While at other times, the issue concerns whether the defendant made a misrepresentation of material fact. In today’s Fraud Notes, we examine Cohen Bros. Realty Corp. v. Mapes , 2020 N.Y. Slip Op. 01440 (1st Dept. Mar. 3, 2020) ( here ), a case involving the state of mind element of a

In a prior post ( here ), this Blog discussed Barrett v. Grenda , 2017 NY Slip Op. 07031 (4th Dept. Oct. 6, 2017), a case in which the court dismissed a breach of contract claim because the plaintiff failed to identify the provision of an agreement alleged to have been breached. In NFA Group v. Lotus Research, Inc. , 2020 N.Y. Slip Op. 01356 (2d Dept. Feb. 26, 2020) ( here ), the Appellate Division, Second Department affirmed the dismissal of a breach of contract action for t

In general, statutes of limitation govern the time in which a cause of action must be interposed after accrual. [This BLOG has previously addressed Statute of Limitations issues < HERE =">HERE</a>"> and < HERE =">HERE</a>"> .] Article 2 of the CPLR addresses statute of limitations issues in New York. Section 201 of the CPLR provides that “ n action … must be commenced within the time specified in this article unless a different time is prescribed by law or a shorter time

Forum non conveniens is a common law doctrine in which a court may dismiss an action because adjudication of the matter is more appropriate in another forum. In New York, the doctrine can be found in CPLR § 327(a). Under this section, a court may stay or dismiss an action if it finds “that in the interest of substantial justice the action should be heard in another forum.” CPLR § 327(a). The party seeking dismissal bears the burden of establishing that New York is not the pr

In very general terms, fraudulent conveyance statutes are designed to protect creditors from situations where a debtor transfers its assets or property to a creditor’s detriment. Sometimes such transfers are made with actual intent to defraud. Other times, transfers may be deemed to be constructively fraudulent regardless of the actual intent of the debtor/transferor. In Sarfati v. Palazzolo , 2020 N.Y. Slip Op. 30432(U) (Sup. Ct., N.Y. County Feb. 7, 2020) ( here ), Justic

People text and e-mail all day and every day. When communicating from a personal smart phone, a privately-owned personal computer or over a personal e-mail network, concerns over privacy are minimized. However, folks do a fair share of their personal business while at work -- often utilizing their work e-mail systems, smart phones and personal computers for same. While convenient, such practices could present problems as an employer may be permitted to have access to infor

In New York State, money judgments are valid for 20 years. CPLR § 211(b) . Money judgments recorded in the county in which real property is located remain liens on that real property for only 10 years. CPLR § 5203(a) . The CPLR, however, permits a judgment creditor to obtain a “renewal judgment,” which would operate to extend the lien of a money judgment on real property for an additional 10-year period. CPLR § 5014 . Thus, CPLR § 5014 presently provides, in pertinent p

On February 6, 2020, Justice Jennifer G. Schecter of the Supreme Court, New York County issued a decision in which she ruled, among other things, that Kesha Rose Sebert (better known by her stage name as Kesha) defamed Lukasz Gottwald (“Gottwald”), the music producer known as Dr. Luke, and Kesha’s former producer, when she claimed, in a text message to Lady Gaga, that he had raped Katy Perry. Gottwald v. Sebert , 2020 N.Y. Slip Op. 30347(U) (Sup. Ct., N.Y. County Feb. 6, 2020

Readers of this Blog know that we like to write about fraud cases. After all, a fraud can be perpetrated in so many contexts. Indeed, the circumstances upon which one can deceive another are limited only by the imagination of the wrongdoer. Sometimes, there are too many reported decisions for us to examine in the depth to which our readers have become accustomed. For this reason, we have created the “Fraud Notes” post in which we will examine multiple decisions addressing fra

On numerous occasions, this Blog has addressed issues surrounding certain notice obligations imposed on mortgage lenders foreclosing on residential property. For example, section 1303 of the Real Property Actions and Proceedings Law (“RPAPL”) requires that, under certain circumstances relating to residential property, a foreclosing mortgagee must send statutory notice to the mortgagor and tenants advising them, among other things, that they are in danger of losing their hom

In this Blog’s post entitled: “ Real Property Owners and Contractors should be Aware of the Trust Fund Provisions of New York’s Lien Law ,” the trust fund provisions of New York’s lien law were discussed. A brief recap of this Blog’s prior post as it relates to this post may be informative. Lien Law §71 recognizes two types of trusts – (1) the owner trust and (2) the contractor/subcontractor trust. The assets of the owner trust “shall be held and applied to the cost of im

Statutes of limitations limit the duration of a defendant’s liability for all types of alleged wrongdoing. Plaintiffs who do not pursue their rights within the limitation period will find the courthouse doors closed to their claims. For this reason, whether the statute of limitations has run can be an important topic of discussion between a lawyer and her client. The statute of limitations for a fraudulent inducement claim is the greater of (a) six years from the date when t

On January 23, 2020, the Appellate Division, First Department, unanimously affirmed the dismissal of fraud-based claims alleged in connection with the purchase of a promissory note that memorialized a $1.5 million loan.

“The attorney-client privilege shields from disclosure any confidential communications between an attorney and his or her client made for the purpose of obtaining or facilitating legal advice in the course of a professional relationship.” Ambac Assur. Corp. v. Countrywide Home Loans, Inc. , 27 N.Y.3d 616, 623 (2016). The privilege “fosters the open dialogue between lawyer and client that is deemed essential to effective representation.” Spectrum Sys. Intl. Corp. v. Chemical B

Commercial contracts typically include a liquidated damages provision that allows for the payment of a predetermined amount of damages in the event of a breach by one of the parties. Courts will sustain such a provision if the liquidated amount is reasonably proportionate to the probable loss and the amount of actual loss is incapable or difficult of precise estimation. If, however, the amount fixed is grossly disproportionate to the probable loss, then the provision amounts

John loans Jane money to help Jane grow her company. Unfortunately, Jane fails to repay John as promised. John demands that the Jane repay him. In front of a group of people known to both John and Jane, John calls Jane a “scammer”, a “thief” and a “con artist.” John sues Jane for breach of contract and fraud. Jane counterclaims, alleging that John defamed her in front of their friends. The foregoing fact pattern is not uncommon. Prospective clients often tell lawyers of such

This Blog has addressed many issues related to mortgage foreclosure. < 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>"> and . As to the issues relating to the standing of a lender to commence a foreclosure action, this Blog has not

Under New York’s rules of contract interpretation, “when parties set down their agreement in a clear, complete document, their writing should be enforced according to its terms.” Riverside S. Planning Corp. v. CRP/Extell Riverside, L.P. , 13 N.Y.3d 398, 403 (2009); W.W.W. Assoc. v. Giancontieri , 77 N.Y.2d 157, 162 (1990). The courts are “extremely reluctant to interpret an agreement as impliedly stating something which the parties have neglected to specifically include.” Row

An interesting question sometimes arises in the tort arena in which a third-party to a transaction claims to have been injured by one of the parties. Do the parties to the transaction owe a duty to the third party? The answer depends on whether the third party can show privity or near privity with the alleged tortfeasor. In this regard, the third party must demonstrate that the parties were aware that their report, agreement or transaction documentation would be used by the t

Clients often ask if their oral agreement is enforceable. To support their claim, they point to emails and text messages as evidence of such an agreement. As this Blog has noted in the past, whether an oral agreement is enforceable and whether emails and text messages are sufficient documentary evidence to demonstrate the existence of such an agreement are dependent upon whether the evidence is admissible and irrefutable. See , e.g. , here , here , and here . In today’s post,