It is widely known that there is a residential foreclosure crisis throughout the country and New York State is no exception. The New York State Legislature responded 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, section 1303 of the Re

Black’s Law Dictionary has defined “escheat” as “ reversion of property to the state in consequence of a want of any individual competent to inherit.” Many people are aware that money in forgotten bank accounts is frequently deemed abandoned and is escheated to the State, however, the scope of the APL, is significantly broader. New York’s Abandoned Property Law (“APL”), sets forth various circumstances in which property is deemed to be abandoned and thus escheated to New Y

The claim of assumpsit (from the Latin indebitatus assumpsit ) was “developed to redress circumstances involving unjust enrichment or to ‘prevent a man from retaining the money of, or some benefit derived from, another which it is against conscience that he should keep.’” Tri-State Chem., Inc. v. Western Organics, Inc. , 83 S.W.3d 189, 193-94 (Tex. App.-Amarillo 2002, pet. denied) (citation omitted); Parsa v. State of New York , 64 N.Y.2d 143, 148 (1984). “It encompassed an o

Implicit in every contract is a covenant of good faith and fair dealing. New York Univ. v. Continental Ins. Co. , 87 N.Y.2d 308, 318 (1995). “The covenant is breached where one party to a contract seeks to prevent its performance by, or to withhold its benefits from, the other.” Michaan v. Gazebo Hort., Inc. , 117 A.D.3d 692, 693 (2d Dept. 2014) (citation and quotation omitted). “While the duties of good faith and fair dealing do not imply obligations inconsistent with other

When disputes arise over the meaning of a contract or a clause within a contract, courts are called upon to interpret the agreement to give it meaning. Courts in textualist jurisdictions will examine the language of the contract as whole – the “four corners rule” – rather than the disputed clause in isolation. And, when the contract is clear, unambiguous and fully integrated ( i.e. , the parties have integrated their agreement into a single writing), all prior negotiations an

The foundation of virtually every business and commercial transaction is a contract. Indeed, it is hard to imagine any transaction for the purchase or sale of goods, the merger or acquisition of a business, or the provision of services that is not founded upon a contract. There is almost nothing more frustrating, or potentially costlier, to businesses and commercial practitioners than a dispute over the meaning of a contract. Such disputes often arise over the performance or

As a general matter, when parties negotiate an agreement in a clear and unambiguous document, their writing will be enforced according to its terms. Evidence outside the four corners of the document as to what the parties really intended ( i.e. , parole evidence) is generally inadmissible. Golden Gate Yacht Club v. Societe Nautique De Geneve , 12 N.Y.3d 248 (2009). Among the reasons for this rule is to give “stability to commercial transactions,” and other types of commercial

Robocalls. We all get them. They are annoying. But, are they legal? Not surprisingly, the answer depends on the circumstances involved. In 1991, Congress passed the Telephone Consumer Protection Act (“TCPA”) to protect consumers from businesses that use automatic telephone dialing systems to deliver prerecorded messages without prior consent. Mims v. Arrow Fin. Servs., LLC , 565 U.S. 368, 370-71 (2012) (noting that the TCPA was enacted in response to “ oluminous consumer c

In business, relationships are important. One relationship that is essential to successful businesses is the principal-agent relationship. A principal-agent relationship may be established by evidence of the consent of one person to allow another to act on his or her behalf and subject to his or her control, and consent by the other to act, even where the agent is acting as a volunteer. 5015 Art Fin. Partners, LLC v. Christie’s Inc. , 58 A.D.3d 469, 471 (1st Dept. 2009) (quo

On July 10, 2017, new Securities and Exchange Commission ("SEC") rules went into effect that permit companies, regardless of their size, to file paperwork for initial public offerings without immediately making public disclosures. The SEC's announcement of the new policy can be found here . "This is an important step in our efforts to foster capital formation, provide investment opportunities, and protect investors," said Director of the Division of Corporation Finance, B

Notice and reporting requirements in public contracts are common in public works projects. They provide public agencies with timely notice of deviations from budgeted expenditures or of any supposed malfeasance, and allow them to take early steps to avoid extra or unnecessary expense, make any necessary adjustments, mitigate damages and avoid the waste of public funds. A.H.A. Gen. Constr. v. New York City Hous. Auth. , 92 N.Y.2d 20, 33-34 (1998). Such provisions are importan

It is well settled that “ very contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement.” Restatement (Second) of Contracts § 205 (1981). See also 511 W 232nd Owners Corp. v Jennifer Realty Co. , 98 N.Y.2d 144, 153 (2002) (“In New York, all contracts imply a covenant of good faith and fair dealing in the course of performance”). “This covenant embraces a pledge that neither party shall do anything which will have the effect

Prejudgment attachment is a provisional remedy that provides a plaintiff with a statutory mechanism by which he/she can secure a defendant’s assets during the pendency of a lawsuit. In effect, an order of attachment is a lien against a defendant’s property. As such, a prejudgment order of attachment increases the likelihood of recovery on a later-obtained judgment in the action. The requirements for obtaining a prejudgment attachment order vary from state to state; there is

No one likes to read fine print or lengthy agreements. Anyone buying insurance, for example, knows this to be so. In fact, a 2016 car insurance TV commercial by Liberty Mutual highlights this point. In the ad, the actress talks about an insurance policy that is over 20 pages long that no one reads, except for lawyers. The question becomes, then, does a failure to read an insurance policy bar a claim against an insurance company or broker for failing to obtain insurance believ

Earlier this month, Judge Richard J. Sullivan of the Southern District of New York dismissed a federal claim at the plaintiffs’ request, despite the defendants’ argument that the plaintiffs were “clearly and intentionally attempting to engage in forum manipulation.” In Nix v. Office of The Commissioner of Baseball, D/B/A Major League Baseball , Judge Sullivan found that while the plaintiffs’ “manifest purpose” was “to defeat federal jurisdiction” it was not the only factor t

Although courts will pierce the corporate veil “to prevent fraud or achieve equity,” Morris v. N.Y. State Department of Taxation & Finance , 82 N.Y.2d 135, 140 (1993) (quoting Int’l Aircraft Trading Co. v. Mfrs. Trust Co. , 297 N.Y. 285, 292 (1948)), they are, nevertheless, reluctant to disregard the corporate form. TNS Holdings Inc. v. MKI Sec. Corp. , 92 N.Y.2d 335, 339 (1998). After all, the purpose of incorporating is to allow individuals to avoid personal liability. See

Since the early 1900s, tortious interference with contractual relations has been a viable cause of action in New York. E.g. , S.C. Posner Co. v. Jackson , 223 N.Y. 325, 332 (1918); Lamb v. Cheney & Son , 227 N.Y. 418, 421 (1920). It occurs when a business or individual who is not a party to a contract intentionally disrupts a business relationship formed by a contract. Lama Holding v. Smith Barney , 88 N.Y.2d 413, 424 (1996). Under New York law, an action for interference w

The New York Statute of Frauds provides that “ contract for the . . . the sale, of any real property, or an interest therein, is void unless the contract or some note or memorandum thereof, expressing the consideration, is in writing, subscribed by the party to be charged, or by his lawful agent thereunto authorized by writing.” New York General Obligations Law § 5-703(2). “To satisfy the statue of frauds, a memorandum evidencing a contract and subscribed by the party to be

Attorneys are often asked whether an oral agreement is enforceable. Most will say that the answer depends on the law and the facts surrounding the agreement. As an initial matter, to be enforceable, an oral agreement must contain the elements of a binding contract, e.g. , an offer, acceptance, consideration, mutual assent, an intent to be bound, and agreement on all essential terms. (This Blog wrote about these elements here and here .) Even if these elements are present, t

Litigants and their attorneys who fail to comply with discovery demands and/or discovery orders do so at their peril. Such non-compliance can lead to penalties and sanctions, especially when the non-compliance arises from deliberate behavior. When a party deliberately fails to comply with discovery demands and/or discovery orders, the requesting party may file a motion to compel compliance pursuant to Section 3124 of the Civil Practice Rules and Procedure (“CPLR”) or a motio