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By: Jonathan H. Freiberger The title for today’s article refers to one of the most played songs by DJs at college parties, and VJs on the fledgling MTV Network, in the very early eighties. My hope in writing today’s article is that all readers of this BLOG in their 50s and early 60s are inspired to call the number 867-5309 and leave voice mail messages about RPAPL 1304 , the subject of today’s article. This BLOG has frequently written about mortgage foreclosure actions, in ge

By: Jeffrey M. Haber In Imperium Blue Acquisition Partners, LLC v. Marathon Asset Mgt., L.P. , 2025 N.Y. Slip Op. 01317 (1st Dept. Mar. 11, 2025) ( here ), the Appellate Division, First Department was asked to consider whether, among other things, plaintiffs satisfied the justifiable reliance element of a fraud claim. As discussed below, the Court held that plaintiffs failed to do so. In Essential Home Remodeling, Inc. v. Rossin , 2025 N.Y. Slip Op. 01314 (1st Dept. Mar. 11,

By:  Jeffrey M. Haber Previously, this Blog examined the doctrine of res judicata ( here , here , here and  here ). Under the doctrine, a party may not litigate a claim where a judgment on the merits exists from a prior action between the same parties involving the same subject matter. The doctrine applies not only to claims actually litigated but also to claims that could have been raised in the prior litigation. The rationale underlying the doctrine is that a party who h

By: Jonathan H. Freiberger “Just Once,” which is an appropriate title for today’s article, is a James Ingram song from Quincy Jones’ “The Dude” album; an album I have listened to many times throughout, and after, college. Today we will discuss U.S. Bank National Assoc. v. Deblinger , a mortgage foreclosure action that resulted in a decision on February 26, 2025, by the Appellate Division, Second Department. In 2017, the lender commenced an action to foreclose a mortgage afte

By: Jeffrey M. Haber An investment adviser is a fiduciary, and as such is held to the highest standard of conduct and must act in the best interest of his/her client. This means, among other things, that an investment adviser has an affirmative duty of utmost good faith and full and fair disclosure of all material facts. In broad terms, an investment adviser owes its client the duty of care, loyalty, and candor. The duty of care includes, among other things, the duty to pro

By: Jeffrey M. Haber It is well-settled that a plaintiff asserting a derivative claim seeks to recover for injury to the business entity, regardless of whether the entity is a corporation, limited liability company, or partnership. A plaintiff asserting a direct claim seeks redress for injury to himself/herself individually. “The distinction between derivative and direct claims is grounded upon the principle that does not have an individual cause of action that derives from

By: Jonathan H. Freiberger Seasoned attorneys will get the reference in the title of this article to one of Maxwell Smart’s catch phrases from “Get Smart”, but most of the younger folks might not. In any event, the phrase seems prescient in light of a nuanced FAPA related change to CPLR 205 . As stated in prior BLOG articles, when an applicable statute of limitations expires during the pendency of an action, under certain circumstances, CPLR 205(a) permits the plaintiff to c

By: Jeffrey M. Haber The question that clients most often ask their attorney is whether they can get back their attorney’s fees if they prevail on their claims. As we have explained in past articles ( e.g. , here , here , here , and here ), attorney’s fees are not generally recoverable in litigation under the “American Rule”. Under the American Rule, “attorney’s fees are incidents of litigation and a prevailing party may not collect them from the loser unless an award is auth

By: Jeffrey M. Haber “The elements of a cause of action for fraud require a material misrepresentation of a fact, knowledge of its falsity, an intent to induce reliance, justifiable reliance by plaintiff and damages.  A claim rooted in fraud must be pleaded with the requisite particularity under CPLR 3016(b).” The failure to satisfy each element will result in dismissal of the claim. As this Blog has noted in several articles, many cases involving an alleged fraud often rise