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

As discussed in a prior BLOG article, one of the first question 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.”

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

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.

By: Jeffrey M. Haber In today’s Fraud Notes, we examine two cases involving claims of fraudulent inducement and fraudulent concealment. In Board of Mgrs. of 570 Broome Condominium v. Soho Broome Condos LLC , 2024 N.Y. Slip Op. 04804 (1st Dept. Oct. 3, 2024) ( here ), the Court examined a fraudulent inducement claim in connection with the purchase of a condominium unit. As discussed below, the Court held that plaintiff sufficiently alleged that defendant asserted affirmative

Today’s BLOG article relates to fraudulent concealment, caveat emptor and justifiable reliance when purchasing real property.

By: Jeffrey M. Haber In Kapitus Servicing, Inc. v. MS Health, Inc. , 221 A.D.3d 504, 505 (1st Dept. Nov. 21, 2023) ( here ), the Appellate Division, First Department addressed the issue of whether a foreign limited liability company had the capacity to sue in New York due to defects in the entity’s corporate filings. In answering the question, the Court looked at the parties involved and who was the real party in interest with regard to the allegations asserted in the action

By: Jeffrey M. Haber In Rabinowitz v. Clarke , 2024 N.Y. Slip Op. 04627 ( st Dept. Sept. 26, 2024) ( here ), the Appellate Division, First Department addressed legal principles and causes of action that are familiar to readers of this Blog: fraud, the particularity requirement of CPLR 3016(b), the statute of limitations applicable to fraud claims, breach of contract and the duplication doctrine. We examine Rabinowitz below. Rabinowitz arose from plaintiff providing defenda

By: Jeffrey M. Haber During the Covid pandemic, conducting discovery, especially the taking of depositions, was challenging. Parties and their counsel had to adapt to the global health crisis. One adaptation was to remotely take depositions. As the courts opened and a new normalcy came into being, many parties and attorneys nevertheless continued to avail themselves of the remote deposition. In the Commercial Division of the Supreme Court of the State of New York, the option

By: Jeffrey M. Haber In Murray v. Samsung Elecs. Am., Inc. , 2024 N.Y. Slip Op. 51257(U) (Sup. Ct. Monroe County Sept. 12, 2024) ( here ), the court was asked to consider the viability of claims for violations of General Business Law §§ 349 and 350, breach of contract, and breach of the warranty of merchantability. As discussed below, the motion court held that plaintiff failed to satisfy the elements of the claims asserted. In particular, the motion court held that plaintiff

By Jonathan H. Freiberger Discovery (or disclosure) in litigation, which is governed in New York State practice by Article 31 of the CPLR , is the mechanism by which litigants obtain facts and information from other parties and non-parties to support their claims and/or defenses and otherwise prepare for trial. This BLOG has previously addressed discovery issues. See, e.g. , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">

By: Jeffrey M. Haber In Seitz v. Marcum LLP , 2024 N.Y. Slip Op. 51141(U) (Sup. Ct., N.Y. County Aug. 30, 2024) ( here ), Justice Robert R. Reed of the New York County Commercial Division addressed the doctrine of in pari delicto , which “bars a party that has been injured as a result of its own intentional wrongdoing from recovering for those injuries from another party whose equal or lesser fault contributed to the loss.” The doctrine is available to a defendant as an aff

By: Jeffrey M. Haber In Hydraulic IP Holdings, LLC v. Tan , 2024 N.Y. Slip Op. 32930(U) (Sup. Ct., N.Y. County Aug. 16, 2024 ( here ), the court was asked to hold certain successor entities liable for the unsatisfied judgment (“Judgment”) issued by the motion court in plaintiff’s favor and against non-party Grace Apparel LLC (“Grace”). As discussed below, the motion court declined to grant summary judgment in either party’s favor, holding there were issues of fact as to whe

By: Jeffrey M. Haber Often, in the pre-action investigation of a client’s claims, it becomes evident that discovery would materially aid the client in framing his/her complaint or in learning the identities of the persons against whom the complaint should be brought. Obtaining pre-action discovery from the court, however, is not easy. As discussed below, the plaintiff must demonstrate the existence of a meritorious cause of action against the proposed defendant and the materi