By: Jeffrey Haber A multi-level marketing program is a relative of pyramid scheme. “ pyramid scheme is an illegal investment scam based on a hierarchical setup.” In the classic pyramid scheme, “participants attempt to make money solely by recruiting new participants, usually where: he promoter promises a high return in a short period of time; o genuine product or service is actually sold; and he primary emphasis is on recruiting new participants.” Promoters of a pyramid schem

By: Jeffrey M. Haber As readers of this Blog know, New York has a “long and strong public policy favoring arbitration … as a means of conserving the time and resources of the courts and the contracting parties.” For this reason, “New York courts interfere as little as possible with the freedom of consenting parties to submit disputes to arbitration.” The foregoing principle was at issue in McWhinney-St. Louis v. Cliftonlarsonallen LLP , 2024 N.Y. Slip Op 32747(U) (Sup. Ct.,

By Jonathan H. Freiberger As noted in prior BLOG articles, 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). The remedy is frequently used to enforce rights under a real estate contract, where monetary damages are typically insufficient to make the non-breaching party whole due to the uniqueness of real property. EMF General Contracting Corp. v. Bisbee , 6 A.D.3d 45 (1 st Dep

By: Jeffrey M. Haber In Villaver v. Paglinawan , 2024 N.Y. Slip Op. 04159 (2d Dept. Aug. 7, 2024) ( here ), the Appellate Division, Second Department reversed the dismissal of a legal malpractice, breach of fiduciary duty, and intentional infliction of emotional distress action on collateral estoppel grounds. As discussed below, the Court found that, among other things, the claims at issue were not identical to those in the prior litigation and were not otherwise actively lit

By: Jeffrey M. Haber “A third-party beneficiary … is a person or entity that receives benefits from a contract between two other parties, even though they are not a party to the contract.” The concept of a third-party beneficiary stems from the notion that “it is just and practical to permit the person for whose benefit the contract is made to enforce it against one whose duty it is to pay” or perform. “ party asserting rights as a third-party beneficiary must establish (1)

By: Jonathan H. Freiberger CPLR 3213 , which is a procedural device permitting a plaintiff, under certain circumstances, to obtain summary relief at the very beginning of a lawsuit, provides, in pertinent part: When an action is based upon an instrument for the payment of money only or upon any judgment, the plaintiff may serve with the summons a notice of motion for summary judgment and the supporting papers in lieu of a complaint. The summons served with such motion papers

It is well-settled that leave to amend a pleading is to be freely granted. Leave may be denied, however, if the proposed amendment is palpably insufficient or patently devoid of merit, or if it would cause undue prejudice to a party. Amendments that seek to add a time-barred claim or party will be found to be patently devoid of merit, unless the untimeliness can be saved by application of the relation-back doctrine.

By Jeffrey M. Haber A confession of judgment is an agreement whereby a defendant or debtor agrees to the entry of judgment against him/her in an amount certain. It is a procedural device whereby the plaintiff or creditor can bypass the commencement of a lawsuit to obtain the amount “confessed.” Confessions of judgment are used in a variety of circumstances. For example, parties to a litigation may use a confession of judgment as part of a settlement whereby the defendant ag

By Jonathan H. Freiberger Today’s Blog article addresses the issue of waiver of lease rights. Frequently, litigation involves the question of whether a party waived certain of its rights; whether contractual or otherwise. “A valid waiver requires no more that the voluntary and intentional abandonment of a known right which, but for the waiver, would have been enforceable.” Cavayero v. Cavayero , 184 A.D.3d 801, 802 (2 nd Dep’t 2020) (citations, internal quotation marks and

By: Jeffrey M. Haber In the world of e-commerce, a person cannot buy something online, subscribe to a service, or join a club or organization without agreeing to the provider’s “terms of service”. These terms are often lengthy and difficult to read. For these reasons, among others, most people simply click the “I agree” button or link without reading the text or thinking about what they agreed to. Many consumer advocates argue that electronic terms of service should not be bi

By: Jeffrey M. Haber In Bron v. Fritch , 2024 N.Y. Slip Op. 32439(U) (Sup. Ct., N.Y. County July 12, 2024 ( here ), the court was asked to confirm an arbitration award, pursuant to CPLR 7510, stemming from various disputes between the owners of a company engaged in electrical contracting. As discussed below, the court confirmed the award . The parties in Bron jointly owned E. Electric Contracting Inc. (“EEC”). Their respective duties and ownership interests were governed by

By Jonathan H. Freiberger The Courts of New York will not aid in the enforcement of a contract when the subject matter is illegal. Cases standing for this seemingly unremarkable proposition are varied. For example, in Bonilla v. Rotter , 36 A.D.3d 534 (1 st Dep’t 2007), the plaintiff was a suspended attorney. The Defendants assumed responsibility for the plaintiff’s cases during the suspension. The plaintiff claimed that he had an agreement with the defendant to provide serv

By: Jeffrey M. Haber In Iberdrola Energy Projects v. Oaktree Capital Management L.P. , 2024 N.Y. Slip Op. 03798 (1st Dept. July 11, 2024) ( here ), the Appellate Division, First Department was asked to determine the scope of a no recourse provision in a contract between two sophisticated commercial actors relating to the construction of a power plant, and, relatedly, the extent to which certain non-parties to the contract (defendants) were insulated from liability by virtue

By Jonathan H. Freiberger Today’s article relates to renewal judgments under CPLR 5014 in the face of potentially defective service of process. This BLOG has previously addressed CPLR 5014 < here =">here</a>"> . Issues involving service of process have been addressed numerous times in this BLOG. 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 ="

By: Jeffrey M. Haber The Currency and Foreign Transactions Reporting Act, also known as the “BSA,” enacted in 1970, established requirements for record-keeping and reporting by banks and other financial institutions. 1 The BSA is designed to, among other things, enable U.S. law enforcement and regulatory agencies to investigate potential criminal, tax, and regulatory violations (including money laundering and other financial crimes), by requiring individuals, banks, and oth

By: Jeffrey M. Haber Under New York law, an action based upon fraud must be commenced within six years of the date the cause of action accrued, or within two years of the time the plaintiff discovered or could have discovered the fraud with reasonable diligence, whichever is greater. The cause of action accrues when “every element of the claim, including injury, can truthfully be alleged”, “even though the injured party may be ignorant of the existence of the wrong or inju

By: Jeffrey M. Haber As readers of this Blog know, we have frequently written about how courts enforce contracts that are clear and unambiguous. In fact, many of our articles on this subject reflect this fundamental principle of contract interpretation in their title: “ The New York Court of Appeals Reminds Litigants That Words In Contracts Have Meaning ”; “ Contracts That Say What They Mean, Mean What They Say ” and “ Contracts That Say What They Mean, Mean What They Say Red

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 must: send written notice to the borrower by certified and regular mail that the loan is in default; provide a list of approved housing agencies that offer free or low-cost counseling; and, advise that legal action may be commenced after ninety days if no action is taken to resolve the matter.