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: Jeffrey M. Haber In Idi v. Sela , 2025 N.Y. Slip Op. 01890 (1st Dept. Apr. 1, 2025) ( here ), the Appellate Division, First Department addressed an issue of contract interpretation that this Blog often examines: enforcing written agreements that are complete, clear, and unambiguous on their face. 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

By: Jeffrey M. Haber An operating agreement is the primary document that establishes the rights, powers, duties, liabilities, and obligations of the members of a limited liability company (“LLC”) between themselves and with respect to the company. The purpose of the document is to govern the internal operations of an LLC in a way that addresses the needs of the company’s owners (also known as “members”). Notwithstanding its importance, not every state requires an LLC to have

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: 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: Jeffrey M. Haber One of the many changes that the Covid 19 pandemic brought to the workplace was remote employment for employees and consultants alike. When consultants from a different state perform services for a business or entity, questions arise, for dispute resolution purposes, about whether the court can exercise personal jurisdiction over them. In Applied Healthcare Research Mgt. v. Ibrahim , 2024 N.Y. Slip Op. 05734 (4th Dept. Nov. 15, 2024) ( here ), the Appella

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: 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

By: Jeffrey M. Haber Parties to commercial transactions are no doubt familiar with “term sheets”, “letters of intent”, “memoranda of understanding” and “agreements in principle”. As the parties to these documents know, they outline the fundamental terms of the transaction being negotiated. “Term sheets”, “letters of intent”, “memoranda of understanding” and “agreements in principle” may constitute an enforceable agreement if the writing includes all the essential terms of an

By: Jeffrey M. Haber Litigation can be lengthy, costly and potentially damaging to the financial viability of a business and the financial security of an individual. Often, the parties can resolve their disputes without going to court by using alternative methods such as arbitration and mediation. Alternative Dispute Resolution (“ADR”) is an area of law devoted to settling disputes without using the court system. ADR is often a shorter and less costly process by which busine

By: Jeffrey M. Haber The doctrines of res judicata and collateral estoppel embody related but distinct concepts. They both stand for the general proposition that a party to a litigation should have only one bite at the apple and should not be permitted to relitigate the same issue over and over again. Under the doctrine of res judicata, a final judgment on the merits of a claim precludes re-litigation of that claim by a party, and those in privity with that party. 1 This mea

Business relationships come in all forms. People can be shareholders of a corporation, joint venturers and partners. Sometimes, as in Capizzi v. Brown Chiari LLP , 2021 N.Y. Slip Op. 02956 (4th Dept. May 7, 2021) ( here ), a dispute arises among the parties to a business relationship concerning the existence of the relationship itself. When that happens, courts will, as an initial matter, examine the writings between the parties to determine the existence of the relationship

Arbitration is an alternative form of dispute resolution where the parties voluntarily agree that a neutral, private person will resolve any legal disputes between them, instead of a judge or jury in a court of law. Rent-A-Ctr., W, Inc. v. Jackson , 561 U.S. 63, 67 (2010) (noting that “arbitration is a matter of contract”); Matter of Long Is. Power Auth. Hurricane Sandy Litig. , 165 A.D.3d 1138, 1141 (2d Dept. 2018). In business and commercial transactions, arbitration is the

An appraisal is the valuation of property, such as a business, stock in a private company, real estate, collectibles, antiques, or other valuables, by an authorized (and neutral) person. Appraisals are used in many types of transactions. Business men and women typically seek an appraisal when they sell their business, they gift or transfer their ownership interest in the business or property, they make changes to the composition of their business, such as by adding partners o

A partnership is an association of two or more persons to carry on as co-owners of a business for profit. Partnership Law § 10(1). Typically, a partnership is memorialized in some type of writing, such as a partnership agreement. When, as in Giffuni v. Towler , 2019 N.Y. Slip Op. 51824(U) (Sup. Ct., Suffolk County Nov. 15, 2019) ( here ), there is no written partnership agreement between the parties, the court must determine whether a partnership-in-fact existed from the cond

Arbitration is an alternative form of dispute resolution where the parties voluntarily agree that a neutral, private person will resolve any legal disputes between them, instead of a judge or jury in a court of law. Rent-A-Ctr., W, Inc. v. Jackson , 561 U.S. 63, 67 (2010) (noting that “arbitration is a matter of contract”). In business and commercial transactions, arbitration is the preferred means of resolving disputes. It is encouraged and recognized as the public policy of

It is well settled that when an agreement is clear and unambiguous, the parties’ rights are to be governed exclusively by that agreement and the courts are to give the words of that agreement their plain, ordinary, and usual meaning. It is equally well-settled law that parties engaged in an arm's-length business transaction are not fiduciaries, especially when the parties are sophisticated businesspeople. Despite the clarity of these principles, they are, nevertheless, tested

In Siwiec v. United Rest. Group Inc. , 2019 N.Y. Slip Op. 31152(U) (Sup. Ct. Kings County Apr. 11, 2019) ( here ), the Court reminds litigants that if they want to bring a fraud claim along with a contract claim, they must allege misrepresentations that are collateral or extraneous to the contract. Siwiec involved a dispute over the management of a restaurant. According to the complaint, the parties met in May 2016, when Defendant, Christian Vega (“Vega”), the Chairman and C

Parties to commercial/business transactions are no doubt familiar with “term sheets”, “letters of intent”, “memoranda of understanding” and “agreements in principle”. As the parties to these documents know, they outline the fundamental terms of the transaction being negotiated. Not surprisingly, disputes arise over the enforceability of these documents. In A.J. Richard & Sons, Inc. v. Forest City Ratner Cos., LLC , 2019 N.Y. Slip Op. 30215(U) (Sup. Ct. Kings County Jan. 28,

Arbitration is an alternative form of dispute resolution where the parties voluntarily agree that a neutral, private person will resolve any legal disputes between them, instead of a judge or jury in a court of law. In recent years, arbitration has increased in popularity and is part of most business and commercial contracts and employment agreements. This increase in popularity reflects the state (and federal) policy that arbitration is a favored means of resolving dispute