By: Jeffrey M. Haber In Libman v. Hershey Co. , 2025 N.Y. Slip Op. 31769(U), (Sup. Ct., N.Y. County May 5, 2025) ( here ), the motion court was asked to consider whether a front-of-the-package label on the Twizzlers candy wrapper violated General Business Law (“GBL”) §§ 349 and 350. Front-of-package labels are labels that manufacturers put on the front of packaged foods to give consumers basic nutrition information in a way that is easy to understand and allows them to compar

By: Jeffrey M. Haber A contract is an agreement between two or more parties to do something ( e.g. , provide goods or services) in exchange for a benefit. When one or more parties to a contract fail to perform a term in their agreement, they are in breach of that agreement. Most breaches fall into one of two categories: actual or anticipatory. In the former, a party to the contract fails or refuses to perform his/her obligations under the agreement or performs his/her oblig

In today’s article we will discuss Yesmin v. Aliobaba, LLC, an Opinion and Order rendered on May 14, 2025, in which the Appellate Division, Second Department, held that “a notice of pendency that was unexpired at the time of the foreclosure sale has no effect on the title acquired by a good faith purchaser for value from a sale conducted pursuant to the judgment of foreclosure and sale.”

By: Jonathan H. Freiberger Today’s article relates to a decision in a mortgage foreclosure action that combines numerous concepts about which we have previously written. We will quickly revisit CPLR 3215(c) , which provides, in pertinent part, that: If the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on

By: Jeffrey M. Haber In Tiburcio v. Grant Ave. Bronx Realty Corp. , 2025 N.Y. Slip Op. 02669 (1st Dept. May 01, 2025) ( here ), the Appellate Division, First Department was asked to decide whether the statute of limitations expired on all causes of action alleged by the plaintiff or whether the continuing wrong doctrine applied to toll the applicable limitations periods. As discussed below, the Court held that the continuing wrong doctrine to did not apply to save the compla

By: Jonathan H. Freiberger The tedious task of compiling hard copies of exhibits to annex to motion papers in supreme court litigation practice was ameliorated in 2014 when the CPLR was amended to permit litigants, in e-filed cases, to simply refer in their briefs and affirmations to docket numbers on the e-filing system. Thus, CPLR 2214(c) provides: Each party shall furnish to the court all papers served by that party. The moving party shall furnish all other papers not alr

By: Jeffrey M. Haber The elements of a claim for breach of contract are straightforward. The movant must establish: (1) the existence of a valid contract, (2) the plaintiff’s performance of the contract, (3) the defendant’s breach of the contract, and (4) damages resulting from the defendant’s breach. As readers of this Blog know, “ hen the terms of a written contract are clear and unambiguous, the intent of the parties must be found within the four corners of the contract, g

By: Jonathan H. Freiberger Today’s article revisits statute of limitations issues and FAPA [1] in residential mortgage foreclosure actions [2] . Briefly stated, a mortgage foreclosure action is governed by a six-year statute of limitations. CPLR 213(4) ; see also Anglestone Real Estate Venture Partners Corp. v. Bank of New York Melon , 221 A.D.3d 943, 946 (2 nd Dep’t 2023). When mortgage payments are payable in installments, the six-year period runs from each missed paymen

By: Jonathan H. Freiberger Today’s article addresses a property owner’s right to cancel a recorded mortgage pursuant to RPAPL 1501(4) and whether a mortgagee is “is entitled to recover sums expended to preserve and maintain an allegedly abandoned property under equitable and quasi-contractual theories.” As discussed in prior articles, mortgages on real property are frequently delivered to lenders to stand as security for the repayment obligations evidenced by a promissory no

By: Jeffrey M. Haber On July 8, 2019, this Blog wrote an article titled, “First Department Unanimously Affirms Denial of Motion to Compel Arbitration and Motion to Dismiss Fraud Claims” ( here ). The article examined the decision of the Appellate Division, First Department in BML Properties Ltd. v. China Construction America Inc. , 2019 N.Y. Slip Op. 05339 (1st Dept. July 2, 2019), in which the Court (as the title states) affirmed the denial of a motion to compel arbitration

By: Jonathan H. Freiberger The term “venue” in the context of litigation refers to the location where the trial will take place. In general, and as previously described in prior articles, Venue, which is governed by Article 5 of the CPLR , is initially chosen by the plaintiff at the commencement of the action. Sometimes an improper venue is chosen by the plaintiff. In such circumstances, the defendant can move to change venue to a proper venue. CPLR 510(1) ; see also Kidd v.

By: Jonathan H. Freiberger There are certain categories of individuals and entities that are required to be named as defendants in mortgage foreclosure actions and the failure to name such “necessary defendants” can have serious implications. New York’s Real Property Actions and Proceedings Law § 1311 , which sets forth such “necessary defendants,” provides: Each of the following persons, whose interest is claimed to be subject and subordinate to the plaintiff's lien, shall

By: Jonathan H. Freiberger Today’s article relates to CPLR 321(c) , a topic we have addressed before < here =">here</a>"> and < here =">here</a>"> . As previously discussed in this BLOG, once an attorney appears and becomes the attorney of record, the client is free to change counsel by filing with the clerk, a substitution of counsel stipulation, which must also be served on “the attorneys for all parties in the action or, if a party appears without an attorney, to the par

By: Jeffrey M. Haber To state a claim for fraud, a plaintiff must allege “a misrepresentation or a material omission of fact which was false and known to be false by defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury.” The claim must pleaded with particularity. Conclusory allegations will not suffice. Neither will allegations based on information and

By: Jeffrey M. Haber In Crawford v. Integrated Asset Mgt. Servs., LLC , 2025 N.Y. Slip Op. 01352 (2d Dept. Mar. 12, 2025) ( here ), the Appellate Division, Second Department reversed the denial of the defendants’ motion to dismiss the plaintiffs’ fraud-based claims, among others, involving a home improvement project in Brooklyn, N.Y., on the grounds of duplication with the plaintiff’s breach of contract claims. Crawford is notable because the Court held that the fraud damage

By: Jonathan H. Freiberger The title for today’s article refers to one of the most played songs by DJs at college parties, and VJs on the fledgling MTV Network, in the very early eighties. My hope in writing today’s article is that all readers of this BLOG in their 50s and early 60s are inspired to call the number 867-5309 and leave voice mail messages about RPAPL 1304 , the subject of today’s article. This BLOG has frequently written about mortgage foreclosure actions, in ge

By: Jeffrey M. Haber In Imperium Blue Acquisition Partners, LLC v. Marathon Asset Mgt., L.P. , 2025 N.Y. Slip Op. 01317 (1st Dept. Mar. 11, 2025) ( here ), the Appellate Division, First Department was asked to consider whether, among other things, plaintiffs satisfied the justifiable reliance element of a fraud claim. As discussed below, the Court held that plaintiffs failed to do so. In Essential Home Remodeling, Inc. v. Rossin , 2025 N.Y. Slip Op. 01314 (1st Dept. Mar. 11,

By: Jeffrey M. Haber Previously, this Blog examined the doctrine of res judicata ( here , here , here and here ). Under the doctrine, a party may not litigate a claim where a judgment on the merits exists from a prior action between the same parties involving the same subject matter. The doctrine applies not only to claims actually litigated but also to claims that could have been raised in the prior litigation. The rationale underlying the doctrine is that a party who h

By: Jonathan H. Freiberger “Just Once,” which is an appropriate title for today’s article, is a James Ingram song from Quincy Jones’ “The Dude” album; an album I have listened to many times throughout, and after, college. Today we will discuss U.S. Bank National Assoc. v. Deblinger , a mortgage foreclosure action that resulted in a decision on February 26, 2025, by the Appellate Division, Second Department. In 2017, the lender commenced an action to foreclose a mortgage afte

By: Jeffrey M. Haber It is well-settled that a plaintiff asserting a derivative claim seeks to recover for injury to the business entity, regardless of whether the entity is a corporation, limited liability company, or partnership. A plaintiff asserting a direct claim seeks redress for injury to himself/herself individually. “The distinction between derivative and direct claims is grounded upon the principle that does not have an individual cause of action that derives from