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

By Jonathan H. Freiberger Actions or proceedings (collectively, “Actions”) are commenced by filing the initiatory papers with the appropriate county clerk. CPLR 304(a) . 1 Once the Action is commenced, the plaintiff is required to serve the initiatory papers on the defendant and, generally, such service must occur within 120 days after the Action is commenced. CPLR 306-b . 2 “If service is not made upon a defendant within the time provided in this section, the court, upon

By: Jeffrey M. Haber The common law doctrine of caveat emptor is a well-accepted rule of law in New York. Under the doctrine, the courts will not impose liability on a seller of property for failing to disclose information material to the transaction when the parties deal at arm’s length, [1] unless there is some conduct on the part of the seller which constitutes active concealment. [2] “If, however, some conduct ( i.e. , more than mere silence) on the part of the seller r

By: Jeffrey M. Haber In New York, Article 75 of the Civil Practice Law and Rules (“CPLR”) governs the confirmation, vacatur, modification, and enforcement of arbitration awards. Under CPLR 7511(b)(1)(iii), a court may vacate an arbitration award if “an arbitrator, or agency or person making the award exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made.” In addition, a court may vacate an award when it

In commercial and business litigation, it is common for plaintiffs to assert claims against a business entity for wrongs committed by a corporate entity. Often, plaintiffs will try to “pierce the corporate veil,” or get behind the corporate form, to hold the entity’s officers or members liable for the alleged wrongdoing.

By Jonathan H. Freiberger Folks have general notions about usury. However, there are many nuances to the application of the usury laws in New York. This BLOG has previously written about usury. See [< here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> .] As noted in our prior BLOG articles, usury statutes were developed centuries ago to “protect desperately poor people from the consequences of their own desperat

By: Jeffrey M. Haber It should go without saying that people make mistakes. After all, people are human, and humans make mistakes. When people draft a document, especially a lengthy or complex one, it is not uncommon for a mistake to be made. Lawyers who draft contracts and other written instruments are not immune from this phenomenon. Given the steps a lawyer must take to draft and finalize an agreement or other written instrument there are numerous opportunities for unin

By Jonathan H. Freiberger People and businesses enter into all kinds of contracts with the expectation that the other party will perform according to the respective promises of the parties. [This BLOG has discussed the basics of contract formation and breach, inter alia , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> and < here =">here</a>"> .] It is well known that a party to a contra