By: Jeffrey M. Haber It should come as no surprise that one of the goals of an investment fraud is the theft of customer funds for the scammer’s personal benefit. In legal parlance, this aspect of a fraudulent investment scheme is called misappropriation. Misappropriation occurs when a person uses another person’s money without authorization. Misappropriation of funds mirrors the crime of embezzlement, which is a crime committed by a person having a relationship of trust or

By: Jeffrey M. Haber In TD Bank, N.A. v. Keenan , 2023 N.Y. Slip Op. 06158 (2d Dept. Nov. 29, 2023) ( here ), the Appellate Division, Second Department examined the often “nettlesome” question of whether a plaintiff claiming fraud has satisfied the justifiable reliance element of the claim. As readers of this Blog know, we often write about fraud cases where the primary issue for the court to consider is the justifiable reliance element of the claim. We do so because of the i

By Jonathan H. Freiberger Many times, remedies for the breach of a contract other than monetary damages are necessary to make a plaintiff whole. One such remedy is specific performance [a topic previously addressed by this BLOG, inter alia , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> < here =">here</a>"> and < here =">here</a>"> ]. The remedy of specific performance “will not be ordered where money damages would be adequate to protect the expectat

In Stagen v. Neu , 2023 N.Y. Slip Op. 06105 (1st Dept. Nov. 28, 2023) ( here ), the Appellate Division, First Department addressed an issue of contract interpretation involving a word in a settlement agreement that most readers would think has a distinct and undisputed meaning – “employ”. As discussed below, the Court found an issue of fact as to what it means to be “employed” in the context of the record before it. The Court also touched upon the law surrounding third-party

By: Jeffrey M. Haber As we have often explained in the articles in which we have examined fraud claims, to withstand a motion to dismiss, the plaintiff must plead fraud with particularity as required under CPLR § 3106(b), cannot lump all the defendants together so that the plaintiff runs afoul of the group pleading prohibition, and cannot duplicate a breach of contract claim with the fraud claim. Lerman v. 2211 Third Ave. Mazal Holdings LLC , 2023 N.Y. Slip Op. 34092(U) (Sup.

By: Jeffrey M. Haber In July of this year, we wrote about a fraud action involving the EB-5 Immigrant Investor Program (“EB-5 Program” or “Program”) (here). Under the EB-5 Program, investors are eligible for permanent residency status in the U.S. if they make a qualifying investment in a new commercial enterprise in the U.S. that creates a certain number of permanent full-time jobs for qualified U.S. workers. As we often do in our articles, we examine the legal issues involve

By: Jeffrey M. Haber In Barlow v. Skroupa , 2023 N.Y. Slip Op. 05786 (1st Dept. Nov. 16, 2023) ( here ), the Appellate Division, First Department affirmed the dismissal of a fraud claim because the plaintiffs failed to plead fraud with particularity, as required under CPLR § 3016(b), and identify any specific misrepresentations of material fact. We examine Barlow below. Plaintiffs, who were employees and consultants of Inspire Summits LLC (“Inspire”), doing business as Skyt

By Jonathan H. Freiberger Today’s Blog article is about usury, a topic that has previously been covered. See, e.g., < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> . Society’s disdain for usury was recently articulated by the Court of Appeals in Adar Bays, LLC v. GeneSYS ID, Inc. , 37 N.Y.3d 320 (2021), where the Court stated: Although the ancient laws relating to usury had religious and moral underpinnings, some of which may have

By: Jeffrey M. Haber Document discovery is an integral part of any litigation. Documents form the foundation of discovery plans and strategies, and, more significantly, proof at trial. Consequently, litigants must search for, collect, and preserve their documents, particularly electronically stored information (“ESI”), from the moment they are aware of their involvement, or potential involvement, in a lawsuit ( i.e. , when there is a reasonable anticipation that a lawsuit may

By: Jeffrey M. Haber It is well-settled that a corporation (or limited liability company) acts through its officers, directors and owners. As a result, these individuals are normally not liable for the debts incurred by the corporation (or limited liability company). However, when an officer, director or shareholder abuses the corporate form to perpetrate a wrong or injustice against a third party, courts will intervene on behalf of the third party to hold the corporate actor

By: Jeffrey M. Haber Under the Private Securities Litigation Reform Act of 1995 (“PSLRA), a mandatory stay of discovery is imposed “ n any private action arising under” the Securities Act of 1933 (“Securities Act”) “during the pendency of any motion to dismiss.” 15 U.S.C. § 77z-1(b)(1). In Camelot Event Driven Fund v. Morgan Stanley & Co. LLC , 2023 N.Y. Slip Op. 05534 (1st Dept. Nov. 2, 2023) ( here ), the Appellate Division, First Department was asked to determine whether t

By Jonathan H. Freiberger This Blog has written numerous articles about RPAPL 1304 . See, e.g., < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> and < here =">here</a>"> and the Blog articles linked to therein. By way of brief background as discussed in prior articles, RPAPL 1304 requires that at least ninety days before commencing legal action against a borrower with respect to a “home loan” (as defined in

Melville, NY November 3, 2023 – Freiberger Haber LLP is pleased to announce that co-founding partners, Jonathan H. Freiberger and Jeffrey M. Haber, have been named by Super Lawyers Magazine® to be among the top lawyers in the New York metropolitan area. This is Mr. Freiberger’s fourth, and Mr. Haber’s twelfth, consecutive year of selection. Both Messrs. Freiberger and Haber were recognized for their work in business and commercial litigation. Super Lawyers Magazine® is an aff

By: Jeffrey M. Haber On October 31, 2023, the Appellate Division, First Department, unanimously affirmed the dismissal of a fraudulent inducement claim alleged in connection with the purchase of real property. 829 Greenwich St., LLC v. Slorer , 2023 N.Y. Slip Op. 05458 (Oct. 31, 2023) ( here ). The decision addresses a number of principles this Blog frequently examines, including: whether contractual disclaimers can preclude a fraudulent inducement claim; and whether the plai

By: Jeffrey M. Haber In New York, as in other jurisdictions, settlement agreements “are judicially favored, will not lightly be set aside,” and will be enforced “with rigor and without a searching examination into their substance.” 1 A court called upon to enforce a settlement must be satisfied that the agreement is “clear, final and the product of mutual accord.” 2 Thus, an out-of-court agreement settling an action is binding on each party to the agreement only if “it is i

By Jonathan H. Freiberger Once an attorney appears in an action on behalf of a client and becomes the attorney of record, the client is free to change counsel by filing with the clerk, a substitution of counsel stipulation, which must also be served on “the attorneys for all parties in the action or, if a party appears without an attorney, to the party.” CPLR 321 (b)(1). Additionally, an attorney of record “may withdraw or be changed by order of the court in which the acti

By: Jeffrey M. Haber Arbitration is an alternative form of dispute resolution where the parties voluntarily agree that a neutral, private person will resolve any legal disputes between them, instead of a judge or jury in a court of law. 1 In business and commercial transactions, arbitration is the preferred means of resolving disputes. It is encouraged and recognized as the public policy of the State of New York. 2 Consequently, courts will interfere as little as possible w

By: Jeffrey M. Haber A couple of months ago, we examined NW Media Holdings Corp. v. IBT Media Inc. , 2023 N.Y. Slip Op. 30875(U) (Sup. Ct., N.Y. County Mar. 22, 2023) ( here ), a case in which a lower court addressed the question whether the destruction of millions of pages of data on a Google Workspace states a claim for trespass to chattels or conversion ( here ). As discussed in that article, the court concluded that the allegations concerning the destruction of such data