By: Jeffrey M. Haber On numerous occasions, this Blog has examined the attorney-client privilege, the common interest doctrine, and the attorney work product doctrine. Today, we take another opportunity to explore the contours of these privileges. The Tension Between Disclosure and The Attorney-Client Privilege The Civil Practice Law and Rules (“CPLR”) directs that there shall be “full disclosure of all matter material and necessary in the prosecution or defense of an action

By: Jonathan H. Freiberger As readers of this BLOG know, we frequently address issues involved with mortgage foreclosure. Because of, inter alia , the frequency with which mortgages are bought, sold, assigned and otherwise transferred, one issue that frequently arises in mortgage foreclosure actions is whether the plaintiff has standing to commence its action. Briefly stated, “ tanding involves a determination of whether the party seeking relief has a sufficiently cognizabl

By: Jeffrey M. Haber CPLR 3025(b) provides, in pertinent part, that “ party may amend his or her pleading … at any time by leave of court or by stipulation of all parties.” Importantly, CPLR 3025(b) provides that “ eave shall be freely given.…” Thus, “unless the proposed amendment would unfairly prejudice or surprise the opposing party, or is palpably insufficient or patently devoid of merit,” the motion for leave to amend should be granted. Prejudice may be found where “th

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

Melville, NY January 3, 2025 – On January 3, 2025, Freiberger Haber LLP partner Jonathan H. Freiberger was interviewed by Pat Kiernan, on NY1’s Mornings on 1 news broadcast. Mr. Kiernan and Jonathan discussed preliminary injunctions, temporary restraining orders, both in general and as they relate to the action pending in the New Jersey Federal District Court commenced by The State of New Jersey in an effort to stop the implementation of New York’s Central Business District T

By: Jeffrey M. Haber The justifiable reliance element has been described as a “fundamental precept” and a “venerable rule”. The requirement is one of the five elements of a fraud cause of action: (1) a misrepresentation or a material omission of fact; (2) which was false and known to be false by the defendant(s); (3) made for the purpose of inducing another person to rely upon it; (4) justifiable reliance of the other party on the misrepresentation or material omission; an

By: Jonathan H. Freiberger Many times, remedies for the breach of a contract other than monetary damages are necessary to make a plaintiff whole. One such remedy is specific performance. The remedy of specific performance “will not be ordered where money damages would be adequate to protect the expectation interests of the injured party.” Sokoloff v. Harriman Estates Development Corp. , 96 N.Y.2d 409, 415 (2001) (citations and internal quotation marks omitted). Specific perf

By: Jeffrey M. Haber In International Business Machs. Corp. v. GlobalFoundries U.S. Inc. , 2024 N.Y. Slip Op. 06425 (1st Dept. Dec. 19, 2024) ( here ), the Appellate Division, First Department was asked to consider whether a contractual jury waiver provision applied to a claim for fraudulent inducement where the plaintiff did not seek to void or rescind the subject contracts if it prevailed on its fraudulent inducement claim, but instead attempted to enforce the contracts and

By: Jonathan H. Freiberger This BLOG has previously addressed issues related to proper licensure for contractors and the problems that arise for them if they perform work without a license. See, e.g. , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> and < here =">here</a>"> . As previously noted in prior articles, contractors are frequently required by municipalities to be licensed. Unlicensed home improvement contractors are precluded from collecting paym

By: Jeffrey M. Haber Two weeks ago, this Blog wrote about an enforcement action involving an investment adviser's former co-chief investment officer who had been charged with running a more than $600 million cherry-picking scheme (here). Today, this Blog examines another enforcement action involving a former investment adviser representative, charged with engaging in a fraudulent trade allocation scheme – i.e., cherry-picking scheme – wherein he benefitted himself in the amou

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: Jonathan H. Freiberger Today’s BLOG article is about Thorobird Grand LLC v. M. Melnick & Co. , a case decided by the Appellate Division, First Department, on December 12, 2024, and which involves mechanic’s liens. The Facts of Thorobird Plaintiff, as owner, hired defendant M. Melnick & Co., as contractor, on several projects. Pursuant to the parties’ agreement, contractor was required to procure performance and payment bonds from a surety; in this case, defendant Federa

By: Jeffrey M. Haber In today’s article, we revisit some familiar principles concerning claims of fraudulent inducement. We will also examine the impact of a contractual exculpatory clause on the viability of a fraud claim, as well as the impact of contractual provision that negates the basis for a fraud claim. Our examination of these issues and principles is centered on MREF REIT Lender 2 LLC v. FPG Maiden Holdings LLC , 2024 N.Y. Slip Op. 06161 (1st Dept. Dec. 10, 2024) (

By: Jeffrey M. Haber In Valkyrie AI LLC v. PriceWaterhouseCoopers LLP , 2024 N.Y. Slip Op. 06141 (1st Dept. Dec. 5, 2024) ( here ), the Appellate Division, First Department affirmed an order involving claims for unfair competition, tortious interference with contract and tortious interference with prospective business relations. As discussed below, the Court found that plaintiff stated a claim for unfair competition and tortious interference with contract against PwC but fa

By: Jonathan H. Freiberger Today’s BLOG article concerns CPLR 306-b . As previously explained in prior articles, actions or proceedings (collectively, “Actions”) are commenced by filing the initiatory papers with the appropriate county clerk. CPLR 304(a) . Once the Action is commenced, the plaintiff is required to serve the initiatory papers on the defendant, and generally such service must occur within 120 days after the Action is commenced. CPLR 306-b. “If service is not

By: Jeffrey M. Haber It has been some time since we have examined cherry-picking – a practice that can be an effective way to generate returns as well as a practice that is fraudulent and violative of the federal securities laws. Therefore, today, we examine SEC v. Leech, Case 1:24-cv-09017 (S.D.N.Y. Nov. 25, 2024), a case involving the former co-chief investment officer of an investment adviser, who has been charged with running a more than $600 million cherry-picking scheme

By: Jeffrey M. Haber In Farage v. Associated Ins. Mgt. Corp. , 2024 N.Y. Slip Op. 05875 (Nov. 26, 2024) ( here ), the New York Court of Appeals examined the enforceability of an insurance contract’s two-year suit limitation period. In a 4-3 decision, written by Judge Madeline Singas, the Court held that the contract provision in the parties’ insurance agreement shortening the statute of limitations barred plaintiff from receiving payment for the restoration of her property t

“The doctrine of equitable estoppel prevents a party from denying her own expressed or implied admission which has in good faith been accepted and acted upon by another.” “The purpose of equitable estoppel is to preclude a person from asserting a right after having led another to form the reasonable belief that the right would not be asserted, and loss or prejudice to the other would result if the right were asserted.” Stated differently, the purpose of the doctrine “is to