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

By Jonathan H. Freiberger This Blog has previously addressed the question of whether a binding settlement can be reached through a series of emails as opposed to a fully integrated and formal written settlement agreement. See, e.g., < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> and < here =">here</a>"> . These important issues bear repeating to avoid being bound to a settlement that one of the parties did

By: Jeffrey M. Haber Affinity fraud is a type of investment fraud. In this form of fraud, the person committing the fraud preys upon members of an identifiable group, such as a religious or ethnic community, the elderly, or a professional group. The promoter of an affinity fraud frequently is – or pretends to be – a member or a good friend of the group. The fraudster often enlists respected members of the community or religious leaders from within the group to disseminate inf

By: Jeffrey M. Haber Negligent misrepresentation and fraudulent inducement are, to some extent, cut from the same cloth. Both causes of action involve false statements. Often, though not always, the failure to satisfy the elements of one of the claims will result in the failure to satisfy the elements of the other. In Borovina v. ACAP Fund GP, LLC , 2023 N.Y. Slip Op. 05115 (2d Dept. Oct. 11, 2023) (here), the Appellate Division, Second Department affirmed the dismissal of a

By Jonathan H. Freiberger As previously noted in this Blog, 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.” Id. (citations omitted). Even though a defendant may be subject to the jurisdiction of the Court, dismissal may be sought “based on the claim that service was not p

Under the relation-back doctrine, new parties may be joined as defendants in a previously commenced action, after the statute of limitations has expired on the claims against them. The doctrine is codified in CPLR 203.

By: Jeffrey M. Haber In Gold v. Rothfeld , 2023 N.Y. Slip Op. 05006 (2d Dept. Oct. 4, 2023) ( here ), the Appellate Division, Second Department affirmed the dismissal of a fraud complaint on two grounds: collateral estoppel and failure to plead fraud with particularity. We examine the decision and the principles underpinning the holding below. The Requirement To Plead Fraud With Particularity To state a claim for fraud, a plaintiff must allege “a misrepresentation or a materi

By Jonathan H. Freiberger This Blog frequently addresses complex substantive and procedural issues. Today, however, we return to basics. In New York, an “action is commenced by the filing of a summons and complaint or a summons with notice in accordance with rule twenty-one hundred two ” of the CPLR. CPLR 304(a) . “Filing” means “the delivery of the summons with notice summons and complaint … to the clerk of the court in the county in which the action … is brought ….” C