By: Jeffrey M. Haber This Blog has written frequently about the substance and scope of general releases. In New York, “a valid release constitutes a complete bar to an action on a claim which is the subject of the release.” If “the language of a release is clear and unambiguous, the signing of a release is a ‘jural act’ binding on the parties.” For this reason, “ release should never be converted into a starting point for … litigation except under circumstances and under

Today’s BLOG deals with the “Relation Back Doctrine” (the “Doctrine”), which, inter alia, “allows a claim asserted against a defendant in an amended filing to relate back to claims previously asserted against a codefendant for Statute of Limitations purposes where the two defendants are “‘united in interest.’"”

By: Jonathan H. Freiberger Folks enter into brokerage agreements all the time. The most familiar situation involving brokerage agreements are those related to the sale of real property. Litigation over brokerage agreements often involves the payment of commissions. In general, “to prevail on a cause of action to recover a commission, the broker must establish (1) that it is duly licensed, (2) that it had contract, express or implied, with the party to be charged with paying t

By: Jeffrey M. Haber Forum non conveniens is a common law doctrine in which a court may dismiss an action where another forum would be better suited to adjudicate the matter. In New York, the doctrine is codified in CPLR 327(a). Under this section, a court may “stay or dismiss action in whole or in part on any conditions that may be just” if it finds that “in the interest of substantial justice the action should be heard in another forum.” The doctrine reflects the basic p

By: Jonathan H. Freiberger Appearing in an action may give rise to a waiver of a litigant’s right to challenge the court’s jurisdiction over the litigant. As explained in prior blog articles, it is axiomatic that a “plaintiff appears merely by bringing it.” Deutsche Bank Nat. Trust Co. v. Hall , 185 A.D.3d 1006, 1007 (2 nd Dep’t 2020) (citation and internal quotation marks omitted). Once served with process, a defendant must appear in an action to avoid a default. CPLR 320

By: Jonathan H. Freiberger Today’s article relates to summary judgment in lieu of complaint pursuant to CPLR 3213 , which provides, in relevant part: 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 require the defendant to submit answering papers on th

By: Jeffrey M. Haber In Wilburger v. Ava Labs, Inc. , 2025 N.Y. Slip Op. 51072(U) (Sup. Ct., N.Y. County July 3, 2025) ( here ), plaintiff sued defendant for breach of contract, unjust enrichment, and fraudulent inducement related to unpaid compensation for services rendered under an Independent Contractor Agreement. Plaintiff alleged that he worked over 2,300 hours between 2019 and 2023, including tasks beyond the scope of the agreement, and was promised payment in AVAX cry

By: Jeffrey M. Haber 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. The cause of action accrues when “every element of the claim, including injury, can truthfully be alleged”, “even though the injured party may be ignorant of the existence of the wrong or inj

By: Jonathan H. Freiberger This BLOG has written extensively on a wide variety of issues in the area of mortgage foreclosure. One particular area that has been the subject of numerous articles is RPAPL 1304 . By way of brief background, and as addressed in numerous prior BLOG articles, the Second Department has stated that an “RPAPL 1304 notice is a notice pursuant to the Home Equity Theft Prevention Act ( Real Property Law § 265-a ), the underlying purpose of which is to a

By: Jeffrey M. Haber In Lopez v. O’Sullivan , 2025 N.Y. Slip Op. 32178(U) (Sup. Ct., Suffolk County) ( here ), the court declined to dismiss fraud claims, among others, finding that plaintiff sufficiently stated a claim for such relief against the defendants. The court determined that plaintiff provided detailed allegations of misrepresentations made by defendants, which induced him to enter into transactions that ultimately deprived him of ownership of his property. In doin

By: Jeffrey M. Haber In Bardy v. Bonnem , 2025 N.Y. Slip Op. 03698 (2d Dept. June 18, 2025) ( here ), plaintiff claimed an oral agreement entitled him to purchase a 25% ownership interest in a drive-thru coffee business in exchange for developing it. The agreement was allegedly based on a November 13, 2016 email offer, orally accepted three days later. Plaintiff allegedly performed substantial work without compensation, relying on the agreement. When the business succeeded,

By: Jonathan H. Freiberger This BLOG frequently writes about mortgage foreclosure, generally, and RPAPL 1304 , specifically. By way of brief background, and as addressed in numerous prior BLOG articles, the Second Department has stated that an “RPAPL 1304 notice is a notice pursuant to the Home Equity Theft Prevention Act ( Real Property Law § 265-a ), the underlying purpose of which is to afford greater protections to homeowners confronted with foreclosure.” Wells Fargo Ban

By: Jeffrey M. Haber In One River Run Acquisition, LLC v. Milde , 2025 N.Y. Slip Op. 03653 (1st Dept. June 17, 2025) ( here ), the Appellate Division, First Department reinstated counterclaims for fraud and fraudulent transfers after they had been dismissed at the motion court level. The case arose from a failed joint venture between One River Run Acquisition, LLC (“ORRA”) and Greenwich Group International LLC (“GGI”) to develop a luxury resort in Colorado. In its countercla

By: Jonathan H. Freiberger Generally speaking, a party is bound by the terms of a contract to which it is a party. Wu v. Uber Technologies, Inc. , 2024 WL 4874383 at *5 (Ct. Appeals of New York November 25, 2024). Thus, contracts should be enforced according to their terms when they are “clear and unambiguous”. Rocar Realty Northeast, Inc. v. Jefferson Valley Mall Ltd. Partnership , 38 A.D.3d 744, 746 (2 nd Dep’t 2007) (citations omitted). This is so even when a party fails

By: Jeffrey M. Haber This Blog has written about the process known as “summary judgment in lieu of a complaint” on several occasions. The process, codified in CPLR 3213, is a procedure that is unique to New York practice. CPLR 3213 allows a plaintiff to move for summary judgment before the complaint is filed, directly challenging the defendant’s ability to contest the underlying claim. It bypasses traditional pleading and discovery and is available when the action is based

By: Jeffrey M. Haber In New York, litigants often grapple with the appropriate limitation period to apply to breach of fiduciary claims. There is no single statute of limitations that the courts and the parties can look to. “Rather, the choice of the applicable limitations period depends on the substantive remedy that the plaintiff seeks.” “Where the remedy sought is purely monetary in nature, courts construe the suit as alleging ‘injury to property’ within the meaning of C

By: Jonathan H. Freiberger Discovery, an important part of the litigation process, enables litigants to collect information to assist in the prosecution and defense of a case. Section 3101 of the CPLR provides that, in general, “there should be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof” by, inter alia , a party and its representatives. “The words material and necessary, are to be interpr

By: Jeffrey M. Haber In today’s Fraud Notes, we examine Yudkin v. Evergreen Terrace 888 Corp. , 2025 NY Slip Op 03223 (2d Dept. May 28, 2025) ( here ), and Lapin v. Verner , 2025 NY Slip Op 03184 (2d Dept. May 28, 2025) ( here ). Yudkin involved the statute of limitations for fraud and the continuing wrong doctrine. Lapin involved the failure to plead the elements of a fraud claim. Yudkin v. Evergree Terrace 888 Corp. “A defendant who moves to dismiss a complaint pursuant

By: Jonathan H. Freiberger In today’s Blog, we revisit the requirement in RPAPL 1351(1) that a foreclosure sale occur within 90 days of the date of the judgment of foreclosure and sale. By way of brief background, and as previously discussed in this BLOG, the 90-day requirement became effective in December of 2016. However, the rule does not apply in situations where the sale occurred prior to the effective date of the amendment. U.S. Bank, N.A. v. Peralta , 191 A.D.3d 924,

By: Jeffrey M. Haber A claim for fraud requires “a material misrepresentation of a fact, knowledge of its falsity, an intent to induce reliance, justifiable reliance by the plaintiff and damages.” In First Trinity Life Ins. Co. v. Advance Funding LLC , 2025 N.Y. Slip Op. 03133 (1st Dept. May 22, 2025) ( here ), discussed below, knowledge of falsity ( i.e. , scienter) and reliance were the elements at issue. First Trinity concerned the assignment of lottery winnings. A form