By Jonathan H. Freiberger This BLOG has written numerous times on issues related to statutes of limitation in mortgage foreclosure actions. See, e.g., [ here ], [ here ], [ here ], [ here ], [ here ], [ here ], [ here ], [ here ] and [ here ]. As previously described in this BLOG an action to foreclose a mortgage is governed by a six-year statute of limitations. CPLR 213(4) . See also Fed. Nat. Mort. Assoc. v. Schmitt , 172 A.D.3d 1324, 1325 (2 nd Dep’t 2019). When

By: Jeffrey M. Haber It’s been some time since this Blog has written about Regulation Best Interest (“BI”). 1 See here . 2 As a general matter, Reg BI requires a broker, dealer, or associated person to act in the best interest of a retail customer when making a recommendation of a securities transaction (the “Best Interest Obligation”). Today, we examine an enforcement action and settlement of charges against TIAA-CREF Individual & Institutional Services LLC (“TC Services”

In New York, “a valid release constitutes a complete bar to an action on a claim which is the subject of the release.” If “the language of a release is clear and unambiguous, the signing of a release is a ‘jural act’ binding on the parties.” For this reason, “[a] release should never be converted into a starting point for … litigation except under circumstances and under rules which would render any other result a grave injustice.”

By Jonathan H. Freiberger Today we revisit CPLR 3215(c), a provision addressed several times by this Blog. See, e.g., < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> and < here =">here</a>"> . By way of brief background, and as set forth in one of our prior Blogs, Rule 3215(c) of the New York Civil Practice Law and Rules provides, in pertinent part, that: If the plaintiff fails to take proceedings for the ent

By: Jeffrey M. Haber In Rosenberg v. OSG, LLC , 2024 N.Y. Slip Op. 00691 (1st Dept. Feb. 8, 2024) ( here ), the Appellate Division, First Department underscored the insufficiency of pleading a fraud claim on information and belief. In affirming the dismissal of plaintiffs’ fraudulent inducement claim, the Court held that such pleading was “per se defective.” 1 Rosenberg is a class action arising out of plaintiffs’ participation in the Odyssey Study Group (“OSG”), which is ru

By Jonathan H. Freiberger This BLOG has written numerous times on statutes of limitation issues in mortgage foreclosure actions. See, e.g., < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> and < here =">here</a>"> . Briefly stated, and as has been stated previously in this BLOG, an action to foreclose a mortgage is governed by a six-year statute of limitations. CP

By: Jeffrey M. Haber Self-reporting violations of the federal securities laws is an important part of the Securities and Exchange Commission’s enforcement regimen. For decades, the SEC has credited cooperative behavior that assists the Commission in its mission to protect investors. As such, when businesses self-report and rectify allegedly illegal conduct, and otherwise cooperate with Commission staff, the SEC has shown a willingness to forego the imposition of civil penalti

By Jonathan H. Freiberger For a variety of reasons, a party asserting a claim may choose to discontinue same. In such circumstances, CPLR 3217 , provides the mechanism to do so. [Eds. Note: this BLOG has addressed CPLR 3217 < here =">here</a>"> and < here =">here</a>"> .] CPLR 3217(a), which addresses situations where a party asserting a claim may voluntarily discontinue a claim without the need for a court order, permits the party to do so, inter alia : (1) by serving o

By: Jeffrey M. Haber In 245 E. 19 Realty LLC v. 245 E. 19th St. Parking LLC , 2024 N.Y. Slip Op. 00368 (1st Dept. Jan. 30, 2024) ( here ), the Appellate Division, First Department examined a couple of issues frequently discussed in this Blog: veil piercing/alter ego liability and fraudulent transfers. As to the issue of fraudulent transfers, 245 E. 19 Realty provides us with the opportunity to examine a case involving the new Debtor and Creditor Law (“DCL”), which became ef

By: Jeffrey M. Haber In prior articles, this Blog examined CPLR § 3102, the statutory provision that permits pre-action disclosure. See here and here . We do so again in connection with our examination of the Matter of Khorassani v. Financial Industry Regulatory Authority , 2024 N.Y. Slip Op. 00354 (1st Dept. Jan. 25, 2024) ( here ). CPLR § 3102(c) provides that “ efore an action is commenced, disclosure to aid in bringing an action, to preserve information or to aid in arbi

By Jonathan H. Freiberger In order to protect homeowners, home improvement contractors are frequently required by municipalities to be licensed. Unlicensed home improvement contractors are precluded from collecting payments due from homeowners. Brightside Home Improvements, Inc. v. Northeast Home Improvement Services , 208 A.D.3d 446, 449 (2 nd Dep’t 2022). This BLOG has discussed such issues < here =">here</a>"> and < here =">here</a>"> . Along these lines, CPLR § 3015

By: Jeffrey M. Haber As readers of this Blog know, we have written about the duplication doctrine on numerous occasions. E.g. , here , here , and here . Courts apply the doctrine when a plaintiff alleges a breach of contract claim and a fraud claim that arise from the same facts and circumstances. In that regard, a fraud claim will be deemed duplicative of a contract claim when the fraud claim arises from the same facts, seeks the same damages and does not allege a breach of

By: Jeffrey M. Haber The objective of an auditor is to supervise the audit engagement, including supervising the work of engagement team members so that the work is performed as directed and supports the conclusions reached. 1 The engagement partner is responsible for the engagement and its performance. 2 Accordingly, the engagement partner is responsible for the supervision of the engagement team and for compliance with PCAOB standards, 3 including standards regarding usin

By Jonathan H. Freiberger Today’s BLOG article addresses the circumstances pursuant to which the buyer under a real estate sales contract is entitled to prejudgment statutory interest pursuant to CPLR 5001(a) on the return of its down payment upon seller’s breach of that contract. CPLR 5001(a) provides that “ nterest shall be recovered upon a sum awarded because of a breach of performance of a contract, or because of an act or omission depriving or otherwise interfering with

By: Jeffrey M. Haber The Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”), enacted on July 21, 2010, amended the Securities Exchange Act by adding Section 21F-17, “Whistleblower Incentives and Protection.” The purpose of these provisions was to encourage whistleblowers to report possible securities law violations by providing, among other things, financial incentives and confidentiality protections. To achieve this Congressional purpose, the Secur

By: Jeffrey M. Haber A common theme in commercial litigation is the assertion of a breach of contract claim and a fraudulent inducement claim. A plaintiff claiming a breach of contract must show (1) the existence of a contract; (2) the plaintiff’s performance under that agreement; (3) the defendant’s breach of its obligations; and (4) damages resulting from the breach. One of the provisions parties often include in their contract is a merger clause. A merger clause is a provi

By Jonathan H. Freiberger Today’s Blog relates to extensions of time to serve a defendant under CPLR 306-b, a topic previously addressed by this Blog < HERE =">HERE</a>"> , < HERE =">HERE</a>"> and < HERE =">HERE</a>"> . The background discussion in today’s Blog was taken from the linked prior Blogs. Under the present “commencement by filing” system, an action (or proceeding) (collectively, an “Action”) is commenced by filing (CPLR 304(a)) the initiatory paper(s) with the “

By: Jeffrey M. Haber In many of the fraud cases that we examine, the plaintiff alleges that the defendant made an affirmative misrepresentation of fact upon which he/she relied. As we have often noted, fraud does not, however, always concern an affirmative statement. Sometimes a person can perpetrate a fraud through the omission of a material fact. Where fraud by omission is claimed, the plaintiff must allege that the defendant had a duty to disclose the omitted fact. A du