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

As readers of this Blog know, one of the elements of a fraudulent inducement claim is “justifiable reliance.”

By: Jeffrey M. Haber We have often written about the SEC’s whistleblower program and, in particular, the success of the program with respect to detecting and preventing violations of the federal securities laws. The success of the program depends, in large part, on the ability of would-be whistleblowers to have the freedom to report wrongdoing without fear of reprisal. Taking steps to impede an employee or former employee from sharing information with the SEC impairs this fr

By: Jeffrey M. Haber In New York, foreign entities – that is, corporations, limited liability companies and partnerships authorized to do business in another jurisdiction or country – are required to register to business with the Secretary of State. 1 The failure to receive such authority deprives the foreign entity of the ability to affirmatively access the courts of New York and subjects any action commenced by the foreign entity to dismissal. 2 The purpose of the registra

By: Jeffrey M. Haber “The doctrine of forum non conveniens permits a US court to decline to exercise its judicial jurisdiction if the court would be a seriously inconvenient forum and if an adequate alternative forum exists.” 1 The doctrine presupposes at least two forums in which the defendant is amenable to process; the doctrine furnishes criteria for choice between them. 2 “The forum non conveniens determination is committed to the sound discretion of the trial court.

By Jonathan H. Freiberger Most often a lawsuit begins with the filing of a summons and complaint or summons with notice. CPLR 304 . Once the lawsuit is commenced, the plaintiff is required to serve the defendant(s) with process – the event by which the court obtains personal jurisdiction over the defendant(s). [This Blog has written about service of process, see, e.g. , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> and < here =">here</a>"> .] There a

By: Jeffrey M. Haber A question about the application of law sometimes arises when a statute is amended, or the Legislature enacts a new statute that governs a particular issue. In this regard, the question concerns whether the new law or amendment should be applied retroactively or prospectively. There are “two axioms of statutory interpretation” that are relevant in determining whether a statute or amendment should be given retroactive effect. 1 “Amendments are presumed to

By: Jeffrey M. Haber “Cherry-picking” is a practice of fraudulently allocating profitable trades to favored accounts at the expense of other advisory clients. here.=">here</a>."> On September 14, 2023, the Securities and Exchange Commission (“SEC”) announced ( here ) that it settled fraud charges against GlennCap LLC (“GlennCap”), a Connecticut-based investment advisory firm, and its owner, Jonathan Vincent Glenn (“Glenn”), for engaging in a cherry-picking scheme whereby the

By Jonathan H. Freiberger Sometimes someone receives a valuable benefit from your efforts and refuses to compensate you. If the “benefit” was the result of a contractual relationship, a lawsuit for the breach of that contract would be viable. What happens, however, where there is no contract on which to bring a claim? There are several theories of liability sounding in “quasi-contract” that may offer you relief for your efforts. While today’s post will focus on the quasi-

By: Jeffrey M. Haber In our last article ( here ), we examined a choice-of-law provision that, if applied, would violate New York public policy concerning usurious loans. In that case, Virginia law, which does not prohibit usury, was deemed “so violative of New York’s public policy that the choice-of-law provision” at issue was deemed invalid. The underlying predicate in that case was an agreement whereby the corporate defendant agreed to pay plaintiff $1,742,000 over the co

By: Jeffrey M. Haber It is well settled that parties to a contract are free to include choice-of-law provisions in their agreements. Such provisions are generally enforced by New York courts 1 and will be “interpreted so as to effectuate the parties’ intent.” 2 The freedom to contract, however, has limits. Courts will not, for example, enforce agreements that are illegal or where the chosen law violates “some fundamental principle of justice, some prevalent conception of goo

By Jonathan H. Freiberger Frequently, individuals or entities looking to purchase real property have insufficient savings to make the purchase with cash or otherwise do not want to purchase with cash. In such circumstances purchasers typically seek bank financing to consummate the purchase. At the time of contract purchasers are generally required to deliver a substantial down payment. Absent a mortgage contingency clause in the sale contract, the purchaser’s down payment

By: Jeffrey M. Haber A suspicious activity report (“SAR”) is a document that financial institutions, broker-dealers, and those associated with their business, must file with the U.S. Treasury Department’s Financial Crimes Enforcement Network (“FinCEN”) whenever money laundering or fraud is suspected. In May 2021, this Blog wrote about an enforcement action the Securities and Exchange Commission (“SEC”) brought against a broker-dealer for failing to file SARs in connection wit

By: Jeffrey M. Haber On March 20, 2018, the United States Supreme Court decided Cyan, Inc. v. Beaver County Employees Retirement Fund , in which it unanimously held that the Securities Litigation Uniform Standards Act of 1998 does not strip state courts of subject-matter jurisdiction over class actions involving claims brought under the Securities Act of 1933 (the “Securities Act”) and does not allow for the removal of those cases to federal court. Since that time, there has

By: Jeffrey M. Haber On August 23, 2023, the Appellate Division, Second Department issued two decisions that briefly touched upon fraud causes of action: Hershman v. Bank of N.Y. Mellon , 2023 N.Y. Slip Op. 04369 (2d Dept. Aug. 22, 2023) ( here ), and Hillary Dev., LLC v. Security Title Guar. Corp. of Baltimore , 2023 N.Y. Slip Op. 04370 (2d Dept. Aug. 23, 2023) ( here ). In Hershman , the Court affirmed the dismissal of a fraud claim for failure to state a claim, and in Hill

By Jonathan H. Freiberger Generally, folks borrow money to purchase real property. Such loans are typically secured by a mortgage on the property being purchased. The mortgage, when filed with the clerk of the county in which the property is located, creates a lien on the property. Upon full payment of the underlying loan, the borrower expects that a mortgage satisfaction will be filed with the Clerk to release the lien of the mortgage from the property. Indeed, RPAPL 192