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.

By: Jeffrey M. Haber The foundation of virtually every business and commercial transaction is a contract. It is difficult to imagine a transaction for the purchase or sale of goods, the merger or acquisition of a business, or the provision of services that is not based upon a contract. There is almost nothing more costly to businesses and their owners than a dispute regarding the meaning of a contract. Such disputes often arise over the performance or non-performance of a te

By Jonathan H. Freiberger This BLOG has previously addressed issues related to proper licensure for contractors and the problems that arise for them if they perform work without a license. See, e.g. , < here =">here</a>"> , < here =">here</a>"> and < here =">here</a>"> . We have previously noted that home improvement contractors are frequently required by municipalities to be licensed. Unlicensed home improvement contractors are precluded from collecting payments due from ho

By: Jeffrey M. Haber The federal securities laws impose recordkeeping requirements on registered investment advisers to ensure that they responsibly discharge their roles in the nation’s markets. The Securities and Exchange Commission (“SEC” or “Commission”) has long said that compliance with these requirements is essential to investor protection and to the Commission’s efforts to further its mandate of protecting investors, maintaining fair, orderly, and efficient markets, a

By Jeffery Haber There are four primary levels of services provided by an accountant with respect to an entity’s financial statements: preparation, compilation, review, and audit. A preparation engagement is a basic one. In this level of service, the accountant assists management or the business owner in preparing financial statements for internal use. In a compilation engagement, the accountant assists management or the business owner in the presentation of the entity’s fi

By Jonathan H. Freiberger Whether a non-existent corporation can enter into a contract is an interesting question. The interesting answer is that sometimes it can. Pursuant to BCL § 403 , a corporation’s existence begins “ pon the filing of the certificate of incorporation by the department of state.” Generally, “a nonexistent entity cannot acquire rights or assume liabilities, a corporation which has not yet been formed normally lacks capacity to enter into a contract.” Ru

By: Jeffrey M. Haber Attorneys are often asked by their clients if they can sue for attorney’s fees. Whether attorney’s fees may be recovered in litigation depends on the circumstances. Under the general rule, attorney’s fees are incidents of litigation, and the prevailing party may not collect them from the loser unless an award is authorized by agreement between the parties, statute or court rule. 1 In LMM Capital Partners, LLC v. Mill Point Capital, LLC , 2024 N.Y. Slip O

This Blog frequently writes on numerous issues related to mortgage foreclosure. One aspect of a foreclosure action is the calculation of the amounts due to the lender.

By: Jeffrey M. Haber It is not often that we examine a case involving the doctrine of champerty. The last time we did so was on March 8, 2023 ( here ). We also examined the champerty doctrine in 2021 ( here ), 2020 ( here ), and 2016 ( here ). Today, we examine the champerty doctrine in our discussion of IKB Intl. S.A. v. Morgan Stanley , 2024 N.Y. Slip Op. 01675 (1st Dept. Mar. 26, 2024) ( here ). Champerty is the prohibited practice of purchasing claims for the purpose of

By: Jeffrey M. Haber On many occasions, we have written about Ponzi schemes that have been the subject of enforcement actions brought by, and/or settlements with, the Securities and Exchange Commission (“SEC” or the “Commission”). E.g ., here , here , here , here , and here . We remain unsurprised by the frequency with which people operate a Ponzi scheme and do so by exploiting the trust and friendship that exist in groups of people who have something in common, such as a rel

By Jonathan H. Freiberger On March 19, 2024, the Court of Appeals decided Favourite Limited v. Cico , a case concerning “the proper scope of the trial court's discretion to grant leave to amend a complaint under CPLR 3025 (b) .” (Hyperlink added.) [Eds. Note: this BLOG has previously addressed CPLR 3025 < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> and < here =">here</a>"> . This BLOG has previously explained that CPLR 3025(b) provides, in pertinent p

By: Jeffrey M. Haber As we have often explained in the articles in which we have examined the duplication doctrine, fraud claims that are nothing more than contract claims dressed up in fraud clothing, are subject to dismissal. E.g. , here , here , here , and here . Thus, courts will apply the doctrine when a plaintiff alleges a breach of contract claim and a fraud claim that arise from the same facts and circumstances. When that happens, the fraud claim will be deemed du