Real Estate Litigation

By Jonathan H. Freiberger Frequently, individuals or entities looking to purchase real property have insufficient savings to make the purchase with cash or otherwise do not want to purchase with cash.  In such circumstances purchasers typically seek bank financing to consummate the purchase.  At the time of contract purchasers are generally required to deliver a substantial down payment.  Absent a mortgage contingency clause in the sale contract, the purchaser’s down payment

By Jonathan H. Freiberger Generally, folks borrow money to purchase real property.  Such loans are typically secured by a mortgage on the property being purchased.  The mortgage, when filed with the clerk of the county in which the property is located, creates a lien on the property.  Upon full payment of the underlying loan, the borrower expects that a mortgage satisfaction will be filed with the Clerk to release the lien of the mortgage from the property.  Indeed, RPAPL 192

By Jonathan H. Freiberger Specific Performance is an equitable remedy used to compel a party to perform under a contract.  McGinnis v. Cowhey , 24 A.D.3d 629 (2 nd Dep’t 2005).  Specific Performance is frequently used to enforce a party’s rights under real estate contracts.  This Blog has previously discussed specific performance.  See, e.g. , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> and < here =">here</a>"> .    In EMF General Contracting Corp. v.

By Jonathan H. Freiberger This Blog has frequently written about RPALP 1304 .  By way of background, and as previously noted in this Blog, RPAPL 1304 requires that at least ninety days before commencing legal action against a borrower with respect to a “home loan” (as defined in the relevant statutes), a “lender, assignee or mortgage loan servicer” must: send written notice to the borrower by certified and regular mail that the loan is in default; provide a list of approved h

By Jonathan H. Freiberger The question of when parties must close title on a real estate transaction is often answered by another question – has either party sent a “time of the essence” letter?  [Eds. Note: this Blog has previously addressed “time of the essence” letters < here =">here</a>"> .] The law is settled that when “a contract for the sale of real property does not make time of the essence, the law permits a reasonable time in which to tender performance, regardless

By Jonathan H. Freiberger Many times, multiple actions are pending that involve similar facts and/or legal issues.  In such instances it may be appropriate to consolidate those actions pursuant to CPLR 602(a) , which provides that “ hen actions involving a common question of law or fact are pending before a court, the court, upon motion, may order a joint trial of any or all the matters in issue, may order the actions consolidated, and may make such other orders concerning pr

By Jonathan H. Freiberger Because there have been a number of appellate decisions interpreting RPAPL 1304 , this Blog has written frequently on that topic.  See, e.g. , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> and < here =">here</a>"> .   By way of background, and as p

By Jonathan H. Freiberger A commercial lease can be a valuable asset for a business.  Accordingly, a tenant must be mindful of its rights in the face of a default/cure notice from a landlord.  Generally, a tenant that wants to retain its lease and disputes a curable default, or cannot remedy a curable default within the contractual cure period, should consider obtaining a Yellowstone injunction.  Yellowstone="<em>Yellowstone</em>" injunctions="injunctions" here,=">here</a>,"

By Jonathan H. Freiberger Much has been written in this Blog about mortgage foreclosure actions.  In this Blog’s prior article: “Second Department Addresses Issues Regarding Proof of Value of Foreclosed Property for the Purpose of Calculating Deficiency Judgment Under RPAPL 1371” , we discussed deficiency judgments.  By way of brief background, loans are generally evidenced by a promissory note.  The borrower’s repayment obligations are frequently secured by a mortgage on rea

By Jonathan H. Freiberger Regular readers of this Blog are familiar with Bank of America, N.A. v. Kessler , 202 A.D.3d 10 (2021)(“ Kessler ”), a case about which we have previously written < here ,=">here</a>," here=">here</a>"> and which addresses the pre-foreclosure notice requirements of RPAPL 1304 (a topic that is a frequent subject of this Blog – see < here =">here</a>"> and the articles linked therein).  Briefly, as noted in prior Blog articles, RPAPL 1304 requires

By Jonathan H. Freiberger This Blog frequently covers the pre-foreclosure notice requirements of RPAPL 1304 .  See, e.g. , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> and < here =">here</a>"> .  While this stuff is interesting, it also happens to be the subject of frequen

By Jonathan H. Freiberger Laborers and material suppliers (collectively, “Providers”) that add value to construction projects should be paid for their work by the owner, general contractor or whoever else brought them to the project in the first instance.  If Providers do not receive payment despite their own performance, several remedies are available.  For example, a simple claim for breach of contract may be brought by an unpaid Provider.  Such remedies, however, may be in

By Jonathan H. Freiberger I say it all the time and I’m going to say it again, the readers of this Blog know that we frequently discuss numerous aspects of residential mortgage litigation.  S ee, e.g., < here =">here</a>"> and the articles linked therein.  A related subtopic that gets much attention in this Blog is the pre-foreclosure notice requirements of RPAPL 1304 .  See, e.g. , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> ,

By Jonathan H. Freiberger This Blog has written extensively on a variety of issues related to mortgage foreclosure, including those related specifically to limitations periods ( see, e.g., < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> and < here =">here</a>"> .  As to the limitations period relevant to mortgage foreclosure actions, we have previously written that: An action to foreclose a mortgage is governed by a six-year statute

By Jonathan H. Freiberger In our January 14, 2022, Blog Article entitled: “ Don’t Let Undue Delay Cause You to Lose Your Interest in Interest ”, we discussed, inter alia , the court’s discretion in the calculation of the amount of interest due to a lender in a mortgage foreclosure actions.  Regarding the court’s equitable powers, we stated: CPLR 5001(a) provides, in relevant part that “in an action of an equitable nature, interest and the rate and date from which it shall be

By Jonathan H. Freiberger Issues relating to contract interpretation are a frequent subject addressed in this Blog.  “The fundamental, neutral precept of contract interpretation is that agreements are construed in accord with the parties’ intent and the best evidence of what the parties to a written agreement intend is what they say in their writing.”  Henrich v. Phazar Antenna Corp. , 33 A.D.3d 864, 866-67 (2 nd Dep’t 2006) (citations, internal quotation marks and brackets

By Jonathan H. Freiberger When an action is timely commenced but gets dismissed, CPLR 205(a) may permit a plaintiff to commence a new action within six months of the dismissal notwithstanding the expiration of the limitations period.  here,=">here</a>," and="and" the="the" introduction="introduction" to="to" this="this" article="article" is="is" taken="taken" our="our" former="former" article.="article.">   CPLR 205(a) provides: New action by plaintiff. If an action is timel

By Jonathan H. Freiberger On May 24, 2022, the New York Court of Appeals decided Batavia Townhouses, Ltd. v. Council of Churches Hous. Dev. Fund Co., Inc. , and held that “General Obligations Law § 17-105, by its express terms, is the sole statute governing the tolling or revival of the statute of limitations for an action to foreclose a mortgage.”  In so doing, the Court rejected plaintiff’s assertion that GOL §17-101 was equally applicable.  This Blog has written numerous a

By Jonathan H. Freiberger The readers of this Blog know that we frequently discuss numerous aspects of residential mortgage litigation.  S ee, e.g., < here =">here</a>"> and the articles linked therein.  A related subtopic that gets much attention in this Blog is the pre-foreclosure notice requirements of RPAPL 1304 .  See, e.g., < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =

By Jonathan H. Freiberger Statute of limitations issues frequently arises in mortgage foreclosure actions.  This Blog has written extensively on a variety of issues related to mortgage foreclosure, including those related specifically to limitations periods ( see, e.g., < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> and < here =">here</a>"> .   In this Blog article entitled: “ Revive a Time-Barred Claim Using § 17-101 of New York’s General Obligations La