Real Estate Litigation

By Jonathan H. Freiberger Defaults by a party to a real estate contract, whether a purchaser or a seller, are a fruitful source of litigation.  Among other remedies available to an individual or entity aggrieved by a real estate contract default is specific performance, an issue discussed in this Blog’s article entitled: “ Specific Performance (That’s What I Want) – Would be a Terrible Song Title .”  Briefly stated, because of the judicially recognized “unique” nature of real

By Jonathan H. Freiberger In this Blog, we frequently write about cases and developments related to mortgage foreclosure, in general, and RPAPL 1304, specifically.  Indeed, in our September 24, 2021, blog < here =">here</a>"> we discussed the importance of submitting sufficient proof of compliance with RPAPL 1304 on a motion for summary judgment and hyperlinked to prior related articles. By way of brief background, and as set forth in prior articles, in general, a foreclosin

Most simply stated, champerty is the prohibited practice of purchasing claims for the purpose of commencing litigation and has been described as “a venerable doctrine developed hundreds of years ago to prevent or curtail the commercialization of or trading in litigation.”  Bluebird Partners, L.P. v. First Fidelity Bank, N.A. , 94 N.Y.2d 726, 729 (2000) (describing the historical antecedents to New York’s present champerty rules).  While an ages old doctrine dating back to med

Promissory notes and mortgages, like many other contracts, frequently contain provisions requiring a non-breaching party to provide the breaching party with notice of their default as a condition precedent to taking any action to enforce rights as a result of the breach.  Such action can include, but is not limited to, commencing legal action and/or accelerating the unpaid balance due under the note.  Similarly, default notice provisions may require that, in certain circumsta

This Blog frequently addresses issues involving mortgage foreclosures in New York.  < 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>"> , < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE

When parties enter into contracts, they generally do so with the expectation of receiving the benefits of their respective bargains.  Hopefully, these expectations are realized when all parties perform.  A party’s failure to perform under a contract frequently results in a claim for breach of contract.  “Generally, once a party to a contract has made a promise, that party must perform or respond in damages for its failure, even where unforeseen circumstances make performance

The nature of the equitable remedy of specific performance as related to litigation concerning real estate contracts has been explained by this BLOG < here =">here</a>"> and also addressed, inter alia , < here =">here</a>"> and < here =">here</a>"> .  Suffice it to say, specific performance is an equitable remedy requiring the breaching party to perform under a contract and is frequently awarded in situations where the subject matter of a contract is unique – making an awar

Disclosure in New York State court litigation is governed by Article 31 of the Civil Practice Law and Rules .  In general, there “shall be full disclosure of all matters material and necessary in the prosecution or defense of an action, regardless of burden of proof….”  CPLR 3101.   “The words, ‘material and necessary,’ are … to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by shar

Many times, the applicable statute of limitations expires during the pendency of an already commenced action.  No problem – right?,  While generally speaking such an occurrence should not be a problem, issues may arise when an otherwise timely action is dismissed subsequent to the expiration of the limitations period.  Depending on the nature of the dismissal, a plaintiff may be permitted to commence a new action notwithstanding the expiration of the applicable statute of lim

Frequently, the first question asked by a potential client when consulting about a new litigation matter is “can we sue them for our legal fees.”  Clients are often dismayed to learn that attorney’s fees are not generally recoverable in litigation under the “American Rule,” because “ n the United States, 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,

This BLOG has written extensively on issues related to residential mortgage foreclosure actions.  Indeed, earlier this month, in “ PRETEXTUAL DE-ACCELERATION OF MORTGAGE DEBT ”, this BLOG provided an overview of the applicable statute of limitations in foreclosure, the calculation of the commencement thereof, and the acceleration and de-acceleration of mortgage debt.  The Departments of the Appellate Divisions were not in agreement on some of these related issues and, accordi

his BLOG has addressed too may issues regarding residential mortgages to mention.  A mortgage foreclosure action “is equitable in nature and triggers the equitable powers of the court … nce equity is invoked, the court’s power is as broad as equity and justice require.”  U.S. Bank Nat. Assoc. Losner , 145 A.D.3d 935, 937-38 (2 nd Dep’t 2016) (numerous citations and internal quotation marks omitted).  For example, due to the equitable nature of mortgage foreclosure actions, “

Freedom=">Freedom" Mortgage="Mortgage" Corp.="Corp." v.="v." Engel,="Engel</a>," in="in" which="which" it,="it," inter="<u>inter" alia ,="alia</u>," expressly="expressly" rejected="rejected" “pretextual="“pretextual" de-acceleration”="de-acceleration”" theory. ="theory.&nbsp;" This="This" BLOG’s="BLOG’s" treatment="treatment" Freedom ="<u>Freedom</u>" can="can" be="be" found="found" > here .="><em>here</em></a>."> This Blog has written extensively on issues related to residen

In late December 2020, Governor Cuomo signed into law the “COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020” (the “Act”), which has an effective date of December 28, 2020.  While the Act covers certain residential eviction proceedings and tax lien foreclosures too, this BLOG will focus on the provisions of the Act that relate to residential mortgage foreclosures.  A copy of the bookmarked December 31, 2020, memorandum from Chief Administrative Judge Lawrence

In one of our BLOGS from last week, we addressed the remedy of specific performance in breached real estate contracts < HERE =">HERE</a>"> .  The BLOG noted that, under certain circumstances when monetary damages are insufficient to make one of the parties whole after a breach, the equitable remedy of specific performance may be available to require the breaching party to perform.  On January 20, 2021, the Appellate Division, Second Department, decided W Equities Acquisitions

The lyrics to the song “Money (That’s What I Want)”, written by Berry Gordy and Janie Bradford and covered by, inter alia , by The Beatles, seem shortsighted when contemplating available remedies in a breach of contract action.  Thus, according to the song “money don’t get everything, it’s true, what it don’t get, I can’t use, now give me money, that’s what I want.”  While money damages in an action at law may “afford a full and complete remedy” to make a plaintiff whole in t

The New York Court of Appeals has described as “familiar and eminently sensible,” the proposition of law “that, when parties set down their agreements in a clear, complete document, their writing should be enforced according to its terms.”  159 MP Corp. v. Redbridge Bedford, LLC , 33 N.Y.3d 353, 358 (2019) (citation, internal quotation marks and ellipses omitted).  The same Court has also explained the particular importance of such a rule in the context of real property trans

According to Wikipedia, New York Senator William L. Marcy coined the phrase “to the victor belong the spoils” when “referring to the victory of Andrew Jackson in the election of 1828.”  In certain situations, however, the failure of a litigant to act quickly when the Court issues a favorable decision on a motion could spoil the “spoils.” Sometimes the Court renders a decision on a motion instead of issuing an order or judgment.  In such cases it is often up to the prevailing

This BLOG has previously addressed issues related to Statutes of Limitations. See, among many others, < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , and  < HERE =">HERE</a>"> .  Earlier this year, this BLOG posted “ Revive A Time-Barred Claim Using § 17-101 of New York’s General Obligations Law ”, in which, in addition tothe renewal of expired Statutes of Limitation under GOL § 17–101, the purpose and history of Statutes of Limitation was addressed.   St

CPLR 3215(c) , which encourages the prompt entry of default judgments, provides: 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 motion, unless sufficient cause is shown why the complaint should not be dismissed.  A motion by the defendant under this subdivision does not constitute an appearance i