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. [1]  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 a applicable statute of limitations expires during the pendency of an action, under certain circumstances, CPLR 205(a) permits the plaintiff t

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

By: Jonathan H. Freiberger It is axiomatic that a “plaintiff appears merely by bringing it.” Deutsche Bank Nat. Trust Co. v. Hall , 185 A.D.3d 1006, 1007 (2 nd Dep’t 2020) (citation and internal quotation marks omitted). Once served with process, a defendant must appear in an action to avoid a default. CPLR 320(a) , which sets forth, inter alia, the way a defendant can appear in an action, provides that “ he defendant appears by serving an answer or a notice of appearanc

By: Jeffrey M. Haber Now and then a lawyer fails to meet a deadline or otherwise acts untimely.  Several “saving” provisions in the Civil Practice Law and Rules (“CPLR”) are available to assist a lawyer when deadlines are missed. These include: CPLR 2005, CPLR 3012(d), and CPLR 5015(a). The key to applying one or more of these provisions is the reasonableness of the excuse for the delay or default.  In Fox v. Gross , 219 A.D.3d 584, 585-586 (2d Dept. 2023), the Appellate Divi

By: Jeffrey M. Haber An operating agreement is the primary document that establishes the rights, powers, duties, liabilities, and obligations of the members of a limited liability company (“LLC”) between themselves and with respect to the company. The purpose of the document is to govern the internal operations of an LLC in a way that addresses the needs of the company’s owners (also known as “members”). Notwithstanding its importance, not every state requires an LLC to have

By: Jonathan H. Freiberger Today we revisit CPLR 3215(c) , a provision addressed by this BLOG several times before. See, e.g., < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> and < here =">here</a>"> . As previously discussed in our prior BLOGS, and by way of brief background, CPLR 3215(c) provides, in pertinent part, that: If the plaintiff fails to take proceedings for the entry of judg

By: Jeffrey M. Haber It is not uncommon for courts to apply the law of another jurisdiction to resolve a dispute before it. In commercial matters, choice of law contract provisions and doctrines, such as the internal affairs doctrine, typically identify the law that should apply to the parties’ dispute. Palella v. TMO VI LLC , 2025 N.Y. Slip Op. 30373(U) (Sup. Ct., N.Y. County Jan. 27, 2025) ( here ), is a recent example of a New York court applying the law of another jurisdi