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By: Jonathan H. Freiberger This BLOG frequently writes about mortgage foreclosure, generally, and RPAPL 1304 , specifically. By way of brief background, and as addressed in numerous prior BLOG articles, the Second Department has stated that an “RPAPL 1304 notice is a notice pursuant to the Home Equity Theft Prevention Act ( Real Property Law § 265-a ), the underlying purpose of which is to afford greater protections to homeowners confronted with foreclosure.” Wells Fargo Ban

By:  Jeffrey M. Haber In One River Run Acquisition, LLC v. Milde , 2025 N.Y. Slip Op. 03653 (1st Dept. June 17, 2025) ( here ), the Appellate Division, First Department reinstated counterclaims for fraud and fraudulent transfers after they had been dismissed at the motion court level. The case arose from a failed joint venture between One River Run Acquisition, LLC (“ORRA”) and Greenwich Group International LLC (“GGI”) to develop a luxury resort in Colorado. In its countercla

By: Jeffrey M. Haber New York “favors and encourages arbitration as a means of conserving the time and resources of the courts and the contracting parties”. Under the Federal Arbitration Act (“FAA”), “‘questions of arbitrability must be addressed with a healthy regard for the federal policy ... any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration.’” Thus, “where the contract contains an arbitration clause, there is a presumption

By: Jonathan H. Freiberger Generally speaking, a party is bound by the terms of a contract to which it is a party. Wu v. Uber Technologies, Inc. , 2024 WL 4874383 at *5 (Ct. Appeals of New York November 25, 2024). Thus, contracts should be enforced according to their terms when they are “clear and unambiguous”. Rocar Realty Northeast, Inc. v. Jefferson Valley Mall Ltd. Partnership , 38 A.D.3d 744, 746 (2 nd Dep’t 2007) (citations omitted). This is so even when a party fails

By:  Jeffrey M. Haber This Blog has written about the process known as “summary judgment in lieu of a complaint” on several occasions. The process, codified in CPLR 3213, is a procedure that is unique to New York practice. CPLR 3213 allows a plaintiff to move for summary judgment before the complaint is filed, directly challenging the defendant’s ability to contest the underlying claim. It bypasses traditional pleading and discovery and is available when the action is based

By:  Jeffrey M. Haber In New York, litigants often grapple with the appropriate limitation period to apply to breach of fiduciary claims. There is no single statute of limitations that the courts and the parties can look to. “Rather, the choice of the applicable limitations period depends on the substantive remedy that the plaintiff seeks.” “Where the remedy sought is purely monetary in nature, courts construe the suit as alleging ‘injury to property’ within the meaning of C

By: Jonathan H. Freiberger Discovery, an important part of the litigation process, enables litigants to collect information to assist in the prosecution and defense of a case. Section 3101 of the CPLR provides that, in general, “there should be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof” by, inter alia , a party and its representatives. “The words material and necessary, are to be interpr

By:  Jeffrey M. Haber In Skyview Capital, LLC v. Conduent Business Servs., LLC , 2025 N.Y. Slip Op. 03291 (1st Dept. June 03, 2025) ( here ), the Appellate Division, First Department addressed various issues concerning fraud causes of action with which readers of this Blog are familiar: the duplication doctrine, justifiable reliance and disclaimer clauses. As discussed below, Skyview Capital arose from defendant’s sale to plaintiff of certain assets, namely, customer care ca

By:  Jeffrey M. Haber In today’s Fraud Notes, we examine Yudkin v. Evergreen Terrace 888 Corp. , 2025 NY Slip Op 03223 (2d Dept. May 28, 2025) ( here ), and Lapin v. Verner , 2025 NY Slip Op 03184 (2d Dept. May 28, 2025) ( here ). Yudkin involved the statute of limitations for fraud and the continuing wrong doctrine. Lapin involved the failure to plead the elements of a fraud claim. Yudkin v. Evergree Terrace 888 Corp. “A defendant who moves to dismiss a complaint pursuant