If a domestic or authorized foreign corporation is named as a defendant in a lawsuit pending in New York, section 306 of New York’s Business Corporation Law permits service of process on that corporation through the New York secretary of state. Pursuant to BCL § 306, “ ervice of process on search corporation shall be complete when the secretary of state is so served.” ( See BCL § 306.) Once served, the “secretary of state shall promptly send one of such copies by certifie

The History of Common Law Dissolution Judicial dissolution of a corporation at the request of a minority shareholder “is a remedy of relatively recent vintage in New York.” Matter of Kemp & Beatley (Gardstein) , 64 N.Y.2d 63, 69 (1984). Historically, New York courts were prevented from exercising their equity powers to order dissolution, as statutory prescriptions were deemed exclusive. Id . (citation omitted). Statutory dissolution was either limited by the types of corpora

Jonathan H. Freiberger recently co-authored an article appearing in the August 26, 2018 edition of Hotel Executive Magazine. The article addresses new areas of Americans with Disabilities Act (“ADA”) compliance. Traditionally, discussions about ADA compliance have focused on physical barriers to, or within, brick-and-mortar locations. Developing areas of the law, and advances in technology, have resulted in some changes in the way barriers to access are analyzed. While th

This Blog has previously written about the enforceability of informal agreements. ( Here , here , here , and here .) In that regard, we have noted that an exchange of term sheets, memoranda of understanding, emails or correspondence may constitute an enforceable agreement if the writings include all the essential terms of an agreement. Sullivan v. Ruvoldt , 16 Civ. 583, 2017 WL 1157150 at *6 (S.D.N.Y. Mar. 27, 2017). Thus, if the informal writings contain the necessary elemen

In order to obtain personal jurisdiction over an individual defendant (a natural person) in a lawsuit, the plaintiff must serve the defendant with a copy of the summons. CPLR 308 provides several different methods for service and many, but not all, methods are discussed below. One method is personal delivery to the defendant. (CPLR 308 (1).) When such “in hand” service is made, the defendant has twenty days to appear in the action (unless the time is extended). ( CPLR 32

The simplest misstep has the potential to derail years of litigation and result in a massive financial sanction, as happened here. It is in everyone’s best interest, both the litigants’ and the courts’, to verify that diversity jurisdiction exists before proceeding with the case. Everyone involved in this case trusted that diversity jurisdiction existed, but no one verified it. Purchasing Power v. Bluestem Brands , 851 F.3d 1218, 1220 (11th Cir. 2017). Recently, the foregoin

Restrictive covenants are frequently found in employment contracts. Typically, such covenants, among other things, are used to prevent employees (the “Employee”), after the termination of the employment relationship, from: competing with the former employer; soliciting the former employer’s customers; soliciting the former employer’s other employees; and, taking or using the former employer’s confidential business information. Generally, restrictive covenants contain tempora

Recently, the First Department issued a terse decision in which it reversed a lower court ruling requiring the production of documents claimed to be protected by the attorney-client privilege under a common interest agreement. In 21st Century Diamond, LLC v. Allfield Trading, LLC , 2018 N.Y. Slip Op. 05732 ( here ), the Court made clear that “the common interest doctrine applies to protect otherwise privileged communications between these parties from disclosure.” Given the

There are times when a party to a contract wants to be excused from the obligations set forth in their agreement. Under New York, the circumstances under which a court will excuse a party from performance are limited, namely, where there is an intervening event that was both unforeseeable and destroyed either the subject matter of the contract or the means by which the parties could perform thereunder. Since the circumstances in which a contract will be deemed impossible to p

Fraud Claim Dismissed on Statute of Limitations Grounds: Plaintiff Unable to Use The Discovery Rule to Save His Claims Under New York law, an action based upon fraud must be commenced within six years of the date the cause of action accrued, or within two years of the time the plaintiff discovered or could have discovered the fraud with reasonable diligence, whichever is greater. C.P.L.R. § 213(8). See also Sargiss v. Magarelli , 12 N.Y.3d 527, 532 (2009); Carbon Capital Mgm

In the first six months of 2018, securities class action lawsuits were filed at “near record levels,” according to Cornerstone Research (“Cornerstone”). In a July 25, 2018 report, entitled “Securities Class Action Filings – 2018 Midyear Assessment” (the “Report”), Cornerstone found that plaintiffs had “filed more than 750 federal securities class actions since midyear 2016,” the “most prolific 24-month period” since the passage of the Private Securities Litigation Reform Act

Last year, this Blog wrote about the basic principles of contract interpretation under New York law. ( Here .) Much of that legal discussion sets the table for today’s article. When parties enter into a contract, each assumes that the language in their agreement accurately memorializes their understandings and intentions. For this reason, when a dispute arises, the courts in New York look to the intent of the parties as expressed by the language they chose to put into their

Family-run businesses are very common in the commercial world. In fact, according to recent studies, more than one-half of all U.S. companies are family operated. Think of mom and pop stores and Walmart. The stress of running a family business can ruin a relationship. One need only look at Nissim Kassab (“Nissim”) and Avraham Kasab (“Avraham” and together with Nissim the “Brothers”), brothers and owners of Mall 92-30 Associates LLC (“Mall”). The Brothers have been in litig

Virtual offices are all the rage nowadays. However, if you are admitted to practice in New York State, but reside outside of New York State, a virtual office is insufficient to satisfy the requirements of section 470 of New York’s Judiciary Law, which provides: A person, regularly admitted to practice as an attorney and counsellor, in the courts of record of this state, whose office for the transaction of law business is within the state, may practice as such attorney or cou

Given the spate of high-profile sexual harassment cases that have been reported in the media, employers must understand their rights and responsibilities under state and federal employment laws. In particular, business owners must establish policies and procedures that clarify relationships with employees. By enlisting the services of experienced attorneys, you can protect your business from civil lawsuits brought by employees -- here’s how. Employee Policies and Procedures R

There are numerous situations in which the value of real estate becomes an issue in litigation – condemnation proceedings, tax certiorari proceedings and calculating deficiency judgments in foreclosure proceedings – to name a few. Sometimes, when the value of a particular property is at issue, a recent “arm’s length” sale of that same property provides the best assessment of its value. “Although value and price are not necessarily synonymous, the rule has evolved that the p

Is an entity providing pre-construction management services in anticipation of a construction project entitled to file a mechanic’s lien if not paid? While recognizing that there is a dearth of caselaw on this question, the court in Matter of Old Post Road Associates, LLC (Sup. Ct. Westchester Co. May 9, 2018), held that the answer is dependent on the specific nature of the pre-construction services provided. Old Post Road Associates, LLC (“Old Post” or “Petitioner”) owned

When a complaint is served and filed, a defendant can respond to the pleading in many ways. For example, he/she can answer the complaint or file a motion to dismiss. If the defendant files an answer or the court denies the motion, discovery ensues. Sometimes, a party may conclude that the facts and law necessitate the filing of a motion for summary judgment, even before the close of discovery. Regardless of the timing, the moving party must establish their prima facie entitle

Litigation of residential mortgage foreclosure actions in New York remains prevalent at the trial and appellate court levels. Issues related to residential mortgage foreclosure are frequently treated in this Blog. ( Here , here , here , here and here .) It is not uncommon for an individual faced with the prospect of losing a home to foreclosure, to file a bankruptcy petition on the eve of a foreclosure sale in an effort to stop the sale. Section 362 of the Bankruptcy Code

This Blog has previously examined the different aspects of a shareholder’s derivative action, such as the standing requirements and the distinction between direct and derivative claims. ( Here , here and here .) Today’s article revisits these issues. The Demand Futility Requirement Under Delaware law, to have standing to bring a derivative claim on behalf of a corporation, a plaintiff “must make a pre-suit demand that the board pursue the contemplated action.” Asbestos Wor