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

The Courts of New York will not aid in the enforcement of a contract when the subject matter is illegal.

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.

By: Jeffrey M. Haber Arbitration is an alternative form of dispute resolution where the parties voluntarily agree that a neutral person will resolve any legal disputes between them, instead of a judge or jury in a court of law. It is encouraged and recognized as the public policy of the State of New York. 1 Consequently, courts will interfere as little as possible with the agreement of consenting parties to submit their disputes to arbitration. 2 Since arbitration is a “cre

By: Jeffrey M. Haber In a prior post, we examined the impact of proofreading failures when drafting an agreement ( here ). In MAK Technology Holdings Inc. v. Anyvision Interactive Technologies Ltd. , 2024 N.Y. Slip Op 03376 (June 20, 2024) ( here ), the Court of Appeals examined a similar issue – whether typographical errors, grammatical mistakes, or other obvious errors render a contract ambiguous. In a 4-3 decision, written by Judge Cannataro, the Court held that grammatica

By Jonathan H. Freiberger In today’s BLOG we discuss AMK Capital Corp. v. Plotch . , a case decided on June 18, 2024, by the Appellate Division, First Department, that involves, inter alia , an interesting service of process issue. The Court in AMK Capital recognized that the appeal it was deciding is “an issue of apparent first impression – whether CPLR 308(2)’s restrictions prohibiting the inclusion of information indicating that a communication ‘is from an attorney or con

By: Jeffrey M. Haber In Noto v. Planck, LLC , 2024 N.Y. Slip Op. 03340 (1st Dept. June 18, 2024) ( here ), the Appellate Division, First Department examined an at-will employee’s decision to refrain from leaving his employment with the company that employed him and whether that decision constituted consideration sufficient to support the formation of a contract. As discussed, the First Department held that such action sufficed. Noto arose from an alleged agreement whereby d

By: Jeffrey M. Haber Section 3101 of the Civil Practice Law and Rules (“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, among others, a party and its representatives. The phrase “material and necessary” is “interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for

By Jonathan H. Freiberger In today’s BLOG we discuss Trento 67, LLC v. One West Bank, N.A. , a case decided on June 12, 2024, by the Appellate Division, Second Department, that involves, inter alia , the statute of limitations/acceleration in mortgage foreclosure actions 1 and Real Property Actions and Proceedings Law (“RPAPL”) 1501(4). 2 The Court in Trento recognized that the appeal it was deciding is “an issue of apparent first impression for an appellate court in this S

By: Jeffrey M. Haber On June 11, 2024, the Securities and Exchange Commission (“SEC”) announced ( here ) that it charged the Chief Executive Officer and founder of the now-shuttered artificial intelligence recruitment startup Joonko Diversity, Inc. (“Joonko”), 1 with defrauding investors of at least $21 million by making false and misleading statements about the quantity and quality of Joonko’s customers, the number of candidates on its platform, and the company’s revenue. A