By: Jeffrey M. Haber In International Business Machs. Corp. v. GlobalFoundries U.S. Inc. , 2024 N.Y. Slip Op. 06425 (1st Dept. Dec. 19, 2024) ( here ), the Appellate Division, First Department was asked to consider whether a contractual jury waiver provision applied to a claim for fraudulent inducement where the plaintiff did not seek to void or rescind the subject contracts if it prevailed on its fraudulent inducement claim, but instead attempted to enforce the contracts and

By: Jonathan H. Freiberger This BLOG has previously addressed issues related to proper licensure for contractors and the problems that arise for them if they perform work without a license. See, e.g. , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> and < here =">here</a>"> . As previously noted in prior articles, contractors are frequently required by municipalities to be licensed. Unlicensed home improvement contractors are precluded from collecting paym

By: Jeffrey M. Haber In almost every litigation, the question that clients most often ask is whether they can get back their attorney’s fees. As we have explained in past articles ( e.g. , here , here , and here ), attorney’s fees are not generally recoverable in litigation under the “American Rule”. The American Rule “was originally derived from federal legislation passed in 1853 which recognized that ‘losing litigants were being unfairly saddled with exorbitant fees.’” Un

By: Jonathan H. Freiberger Today’s BLOG article is about Thorobird Grand LLC v. M. Melnick & Co. , a case decided by the Appellate Division, First Department, on December 12, 2024, and which involves mechanic’s liens. The Facts of Thorobird Plaintiff, as owner, hired defendant M. Melnick & Co., as contractor, on several projects. Pursuant to the parties’ agreement, contractor was required to procure performance and payment bonds from a surety; in this case, defendant Federa

By: Jeffrey M. Haber In today’s article, we revisit some familiar principles concerning claims of fraudulent inducement. We will also examine the impact of a contractual exculpatory clause on the viability of a fraud claim, as well as the impact of contractual provision that negates the basis for a fraud claim. Our examination of these issues and principles is centered on MREF REIT Lender 2 LLC v. FPG Maiden Holdings LLC , 2024 N.Y. Slip Op. 06161 (1st Dept. Dec. 10, 2024) (

By: Jonathan H. Freiberger Today’s BLOG article concerns CPLR 306-b . As previously explained in prior articles, actions or proceedings (collectively, “Actions”) are commenced by filing the initiatory papers with the appropriate county clerk. CPLR 304(a) . Once the Action is commenced, the plaintiff is required to serve the initiatory papers on the defendant, and generally such service must occur within 120 days after the Action is commenced. CPLR 306-b. “If service is not

“The doctrine of equitable estoppel prevents a party from denying her own expressed or implied admission which has in good faith been accepted and acted upon by another.” “The purpose of equitable estoppel is to preclude a person from asserting a right after having led another to form the reasonable belief that the right would not be asserted, and loss or prejudice to the other would result if the right were asserted.” Stated differently, the purpose of the doctrine “is to

By: Jonathan H. Freiberger As readers of this BLOG know, we frequently write about issues relating to mortgage foreclosure. [1] We have also written numerous articles relating to the recently enacted FAPA . See, e.g., [ here ], [ here ], [ here ], [ here ] and [ here ]. Today’s BLOG article relates to Wilmington Trust, N.A. v. Farkas , and Bayview Loan Servicing, LLC v. Dalal , cases decided by the Appellate Division, First Department, on November 21, 2024, and November 19,

By: Jeffrey M. Haber In litigation, parties often dispute the content and meaning of documents that form the basis of their dispute. Too many times a litigant will say that they “have a copy” of a document that is material and necessary to their claim or defense. But, the question is whether that document is the “best evidence” available. “The ‘oft-mentioned and much misunderstood’ best evidence rule simply requires the production of an original writing where its contents are

By: Jonathan H. Freiberger This BLOG has written frequently about the substance and scope of general releases. As noted in prior BLOG articles, in New York, “a valid release constitutes a complete bar to an action on a claim which is the subject of the release.” Global Minerals & Metals Corp. v. Holme , 35 A.D.3d 93, 98 (1 st Dep’t 2006) (citation omitted). If “the language of a release is clear and unambiguous, the signing of a release is a ‘jural act’ binding on the parti

By: Jeffrey M. Haber In Singh v. T-Mobile , 2024 N.Y. Slip Op. 05554 (2d Dept. Nov. 13, 2024) ( here ), the Appellate Division, Second Department affirmed the dismissal of an action for, among other things, breach of contract, breach of the covenant of good faith and fair dealing, and unjust enrichment. As discussed below, the Court did so on the basis of familiar principles of contract and quasi-contract law . In April 2018, plaintiff Cellray, Inc. (“Cellray”) entered into a

By: Jonathan H. Freiberger As discussed in a prior BLOG article , one of the first questions asked by a potential client when consulting about a new litigation matter is “can we recoup our legal fees in the litigation.” In response, we must explain that, according to the “American Rule,” “the prevailing litigant is ordinarily not entitled to collect a reasonable attorney fee from the loser.” Alyeska Pipeline Services Co. v. Wilderness Society , 421 U.S. 240, 247 (1975) (provi

By: Jeffrey M. Haber Under New York law, written agreements are construed in accordance with the parties’ intent. “The best evidence of what parties to a written agreement intend is what they say in their writing.” As such, “a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms.” “Courts may not ‘by construction add or excise terms, nor distort the meaning of those used and thereby make a new con

By: Jonathan H. Freiberger As readers of this BLOG know, we frequently write about issues relating to mortgage foreclosure. We have also written numerous articles relating to the recently enacted FAPA. See, e.g., < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> and < here =">here</a>"> . Today’s BLOG article relates to Wells Fargo Bank, N.A. v. Edwards , a case decided by the Appellate Division, Second Department, on October 30, 202

By: Jeffrey M. Haber In Emirates Islamic Bank PJSC v. NeoPharma LLC , 2024 N.Y. Slip Op. 51461(U) (Sup. Ct., N.Y. County Oct. 4, 2024) ( here ), Justice Gerald Lebovits addressed an interesting question concerning personal jurisdiction against them that caught our eye. The jurisdictional issue in Emirates Islamic Bank concerned whether personal jurisdiction over the defendants was necessary in order to enforce a foreign-country judgment through a CPLR 3213 motion. To exerci

By: Jonathan H. Freiberger Today’s BLOG article relates to Reverse Mortgage Solutions, Inc. v. Miglucci , a mortgage foreclosure action decided by the Appellate Division, Third Department, on October 17, 2024. The Court in Miglucci determined that the accrual date of a cause of action for the foreclosure of a reverse mortgage generally accrues upon the death of the borrower. In 2008, the Miglucci borrower borrowed money from the lender and secured her repayment obligations

By: Jonathan H. Freiberger As readers of this BLOG know, we frequently write about issues relating to mortgage foreclosure. We have also written numerous articles relating to the recently enacted FAPA. See, e.g., < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> and < here =">here</a>"> . Today’s BLOG article relates to U.S. Bank National Association v. Lynch , a case decided by the Appellate Division, Third Department, on October 24, 2024, and in which it

By: Jeffrey M. Haber Statutes of limitations limit the time within which a defendant can be held liable for any type of alleged wrongdoing. Plaintiffs who do not pursue their rights within the limitations period will find the courthouse doors closed to their claims. For this reason, whether the statute of limitations has run is an important issue to consider before commencing an action. Important to this consideration is ascertaining when the claim sought to be asserted accru

By: Jonathan H. Freiberger A notice of pendency (or lis pendens ) is a provisional remedy available to litigants seeking a judgment that affects title to real property. 5303 Realty Corp. v. O&Y Equity Corp. , 64 N.Y.2d 313 (1984). The purpose of a notice of pendency is to put defendants and the world on notice of the full scope of the rights claimed by plaintiffs to defendants’ real property. Sjogren v. Land Assoc., LLC , 223 A.D.3d 963, 965 (3 rd Dep’t 2024). Notices of pen

By: Jonathan H. Freiberger Because litigation can be a long and drawn-out process, it is not uncommon for litigants to die during the pendency of a lawsuit. In today’s BLOG article, we address the problems that may arise when a litigant dies. This BLOG has previously addressed this issue. See, e.g ., < here =">here</a>"> and < here =">here</a>"> . As previously noted in prior BLOG articles, in this context CPLR § 1015 – Substitution Upon Death – is instructive and provides: