By: Jeffrey M. Haber Over the years, we have examined a motion for summary judgment in lieu of a complaint under CPLR § 3213 ( see , e.g. , here , here , here , here , and here ). Sometimes, the case that we examine involves a guaranty and whether it constitutes an instrument for the payment of money only. See , e.g. , here . A guaranty can be tricky for purposes of CPLR § 3213 because the instrument may include provisions that impose other obligations on the guarantor

By Jonathan H. Freiberger A significant part of commercial business dealings involves the drafting and interpretation of contracts. Accordingly, when disputes arise amongst businesspeople, interpretation of the agreements governing the parties’ relationship becomes a critical aspect of commercial litigation. Rules of contract interpretation, therefore, are a frequent topic addressed in this BLOG. See, e.g., < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>">

When parties negotiate an agreement, the terms of which are clear and unambiguous, their writing will be enforced according to its terms. In the event of a dispute, evidence outside the four corners of the document as to what the parties really intended is generally inadmissible.

By: Jeffrey M. Haber To state a cause of action for fraud, a plaintiff must allege “a material misrepresentation of a fact, knowledge of its falsity, an intent to induce reliance, justifiable reliance by the plaintiff and damages.” 1 The allegations must be stated with particularity to satisfy CPLR 3016(b). 2 Thus, the plaintiff must provide sufficient facts to support a “reasonable inference” that the allegations of fraud are true. 3 Conclusory allegations will not suffic

By Jonathan H. Freiberger A notice of pendency, also known as lis pendens , is a provisional remedy available to litigants seeking a judgment that affects title to real property. 5303 Realty Corp. v. O&Y Equity Corp. , 64 N.Y.2d 313 (1984). 1 The rules concerning notices of pendency are found in Article 65 of the CPLR. As the name suggests, a notice of pendency puts the world on constructive notice that an action has been commenced that may affect the title to the property

By: Jeffrey M. Haber This Blog has posted numerous articles concerning vacatur of an arbitration award under Article 75 of the Civil Practice Law and Rules (“CPLR”). E.g. , here , here , and here . On occasion, we have posted articles concerning vacatur under the Federal Arbitration Action (“FAA”). Today, we revisit vacatur under the FAA through our examination of Matter of Patel v. Macy’s Inc. , 2024 N.Y. Slip Op. 02782 (1st Dept. May 21, 2024) ( here ). Patel involved a pe

By: Jeffrey M. Haber When parties enter into a contract, each assumes that the language in their agreement accurately memorializes their understandings and intentions. For this reason, when a dispute arises, the courts in New York look to the intent of the parties as expressed by the language they chose to put into their writing. 1 A clear, complete document will be enforced according to its terms. 2 When the parties have a dispute over the meaning of their contract, the cou

By Jonathan H. Freiberger Today’s BLOG article touches on two areas of the law on which we have previously written – account stated 1 and duplication. 2 “An account stated is an agreement between parties to an account based on prior transactions between them with respect to the correctness of the account items and balance due.” Accent Collections, Inc. v. Cappelli Enterprises, Inc. , 94 A.D.3d 1026 (2 nd Dep’t 2012) (Citations and internal quotation marks omitted.) See als

By: Jeffrey M. Haber As readers of this Blog know, on December 6, 2019, the State of New York joined the vast majority of jurisdictions to adopt the Uniform Voidable Transaction Act (“UVTA”) in whole or in part. The New York version of the UVTA became effective on April 4, 2020. The UVTA governs fraudulent transfers. Although it has been four years since the effective date of the UVTA, there remain scores of cases in the court system that were filed under the former Debtor Cr

By: Jeffrey M. Haber In Cline v. Grodin , 2024 N.Y. Slip Op. 02586 (1st Dept. May 9, 2024) ( here ), the Appellate Division, First Department was asked to consider whether an agreement involving a limited partnership permitted the general partner to employ and compensate others, including the limited partners, to run the day-to-day business operations of the limited partnership. As discussed below, the Court answered the question in the affirmative. Cline involved Alcova Cap

By: Jeffrey M. Haber On May 3, 2024, the Securities and Exchange Commission (“SEC” or “Commission”) announced ( here ) that it charged audit firm BF Borgers CPA PC and its owner, Benjamin F. Borgers (together, “Respondents”), 1 with deliberate and systemic failures to comply with Public Company Accounting Oversight Board (“PCAOB”) standards in its audits and reviews incorporated in more than 1,500 SEC filings from January 2021 through June 2023. The SEC also charged Responde

By: Jeffrey M. Haber In Nosegbe v. Charles , 2024 N.Y. Slip Op. 02406 (4th Dept. May 3, 2024) ( here ), the Appellate Division, Fourth Department affirmed the dismissal of a fraud claim because the plaintiff failed to identify the statement claimed to be false. The Court also reinstated a claim that the motion court dismissed on the grounds that, inter alia , the text message on which the lower court relied was not documentary evidence within the meaning of CPLR 3211(a)(1). W

By Jonathan H. Freiberger There are two “components and constitutional predicates of personal jurisdiction.” Keane v. Kamin , 94 N.Y.2d 263, 265 (1999). “One component involves service of process, which implicates due process requirements of notice and opportunity to be heard.” Keane , 94 N.Y.2d at 265 (citations omitted). 1 The law is clear that a “court lacks personal jurisdiction over a defendant who is not properly served with process.” Everbank v. Kelly , 203 A.D.3d 13

By: Jeffrey M. Haber On December 22, 2020, the Securities and Exchange Commission (the “SEC” or the “Commission”) adopted significant amendments to Rule 206(4)-1 promulgated under the Investment Advisers Act of 1940 (the “Amended Marketing Rule”). Rule 206(4)-1 governs marketing by Commission-registered investment advisers.1 Among other things, the Amended Marketing Rule states that it is unlawful for registered investment advisers, directly or indirectly, to disseminate any

By: Jeffrey M. Haber In Lane’s Floor Coverings & Interiors, Inc. v. DiLalla , 2024 N.Y. Slip Op. 02257 (1st Dept. Apr. 25, 2024) ( here ), the Appellate Division, First Department considered an alleged scheme to defraud plaintiff by using checks that were fake or missing endorsements. As discussed below, the Court modified the motion court’s order dismissing the action to deny defendants’ motion as to the fraud claims asserted against Defendant Anthony DiLalla, the branch man

By Jonathan H. Freiberger In situations where the statute of limitations expires during the pendency of an action, under certain circumstances, CPLR 205 (a) 1 permits the plaintiff to commence a new action if the original action is dismissed but was timely commenced. CPLR 205(a) provides: If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the c

By: Jeffrey M. Haber The doctrine of successor jurisdiction provides that when two entities merge, the successor entity inherits the merged entity’s jurisdictional status for purposes of specific jurisdiction ( i.e. , personal jurisdiction). Thus, if the merged entity was subject to jurisdiction in a particular forum, then the successor would also be subject to the court’s jurisdiction, regardless of whether the successor entity would otherwise be subject to the court’s juris

In order to prosecute a lawsuit, the plaintiff must have standing to do so. Standing involves a determination of whether the party seeking relief has a sufficiently cognizable stake in the outcome so as to cast the dispute in a form traditionally capable of judicial resolution.