By Jonathan H. Freiberger This Blog has frequently written about RPALP 1304 . By way of background, and as previously noted in this Blog, RPAPL 1304 requires that at least ninety days before commencing legal action against a borrower with respect to a “home loan” (as defined in the relevant statutes), a “lender, assignee or mortgage loan servicer” must: send written notice to the borrower by certified and regular mail that the loan is in default; provide a list of approved h

By: Jeffrey M. Haber The internal affairs doctrine is a “conflict of laws principle which recognizes that only one State should have the authority to regulate a corporation’s internal affairs—matters peculiar to the relationships among or between the corporation and its current officers, directors, and shareholders—because otherwise a corporation could be faced with conflicting demands.” 1 Stated differently, “ nder the internal affairs doctrine, claims concerning the relat

By: Jeffrey Haber Section 3211(a)(8) of the Civil Practice Law and Rule (“CPLR”) allows a party to “move for judgment dismissing one or more causes of action asserted against him on the ground that … the court has not jurisdiction of the person of the defendant.” Whether the court has personal jurisdiction over a non-domiciliary involves a two-part inquiry: (1) the exercise of jurisdiction must be permissible under New York’s long-arm statute; and (2) the exercise of jurisd

Query: does the recipient of an assignment via a contract or a note automatically have the right to assert tort claims, including fraud claims, arising from that contract or note? In SureFire Dividend Capture, LP v. Industrial & Commercial Bank of China Financial Services LLC , 2023 N.Y. Slip Op. 02841 (1st Dept. May 25, 2023) ( here ), the Appellate Division, First Department answered the question in the negative. The reason, as one would expect, depends on the language used

By: Jeffrey Haber Commercial contracts typically include a liquidated damages provision that allows for the payment of a predetermined amount of damages in the event of a breach by one of the parties. Courts will sustain such a provision if the liquidated amount is reasonably proportionate to the probable loss and the amount of actual loss is incapable or difficult of precise estimation. If, however, the amount fixed is grossly disproportionate to the probable loss, then the

By Jonathan H. Freiberger The question of when parties must close title on a real estate transaction is often answered by another question – has either party sent a “time of the essence” letter? [Eds. Note: this Blog has previously addressed “time of the essence” letters < here =">here</a>"> .] The law is settled that when “a contract for the sale of real property does not make time of the essence, the law permits a reasonable time in which to tender performance, regardless

By: Jeffrey M. Haber This Blog has previously written about the benefits of forming a corporation or a limited liability corporation and the perils of ignoring the corporate formalities that are attendant thereto ( see , e.g. , here , here , here , here , and here ). In today’s article, we examine the alleged use of the corporate entity to commit a wrong on another and the court’s unwillingness to pierce the corporate veil to hold the owner personally liable for that wrongful

By: Jeffrey M. Haber To plead a fraud cause of action, a plaintiff must allege: (1) a misrepresentation of material fact; (2) falsity; (3) scienter; (4) justifiable reliance; and (5) damages. 1 Each element of the claim must be satisfied for the plaintiff to prevail on the cause of action. The failure to satisfy each element will result in dismissal of the claim. In Hayes v. Martinez , 2023 N.Y. Slip Op. 02587 (1st Dept. May 11, 2023) ( here ), the Appellate Division, First

By Jonathan H. Freiberger This Blog has previously discussed issues related to whether a binding agreement (a settlement agreement or otherwise) was formed by parties to a dispute. See, e.g. , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> and < here =">here</a>"> . In our prior articles we discussed, inter alia , the elements of contract formation and whether emails suffice to satisfy signing requirements. Such issues were releva

By Jonathan H. Freiberger Pursuant to CPLR 3014 , inter alia , “ copy of any writing which is attached to a pleading is part thereof for all purposes.” Where “a copy of the agreement is annexed to and made a part of the complaint, the rights and duties of the parties must be determined by the terms of the contract annexed to the complaint, and not by the plaintiff’s characterization or construction thereof in his pleading he rights of the parties thereunder must be determin

By: Jeffrey M. Haber In past articles, we have examined a motion for summary judgment in lieu of a complaint under CPLR § 3213 ( see , e.g. , here , here , here , here , and here ). Today, we take another look at this statute by examining BBM3, LLC v. Vosotas , 2023 N.Y. Slip Op. 02279 (1st Dept. May 2, 2023) ( here ), a case involving an unconditional guaranty of payment. CPLR § 3213 Pursuant to CPLR § 3213, “ hen an action is based upon an instrument for the payment o

By: Jeffrey M. Haber New York’s Business Corporation Law (“BCL”) § 630(a) provides that “ he ten largest shareholders,” of a corporation are “personally liable”, “jointly and severally”, “for all debts, wages or salaries due and owing to any of its laborers, servants or employees other than contractors, for services performed by them for such corporation.” For purposes of BCL § 630(a), “wages or salaries … mean all compensation and benefits payable by an employer to or for t

Mortgages on real property are typically delivered as security for the repayment of an obligation evidenced by a promissory note. A mortgage is an encumbrance on real property. Removing the encumbrance, if given the opportunity, makes sense.

By: Jeffrey M. Haber Taxes. Everyone hates paying them. As one might expect, taxpayers often look for any opportunity to minimize their tax obligation. When securities are involved, especially in taxable accounts, a taxpayer may look to his or her broker or investment adviser to develop strategies that will mitigate the tax impact of their investments. An investment adviser may, for example, replace a security with an unrealized loss with another security to capture the tax

By: Jeffrey M. Haber In Lucky of 195 Madison St. Roofing & Contracting Inc. v. Creif, 109 LLC , 2023 N.Y. Slip Op. 02065 (1st Dept. Apr. 20, 2023) ( here ), the Appellate Division, First Department was asked to consider whether a legal opinion issued in connection with a mortgage transaction was fraudulent. As discussed below, the First Department affirmed the holding of the motion court, which found that the legal opinion in question was, for pleading purposes, fraudulent. A

By Jonathan H. Freiberger In our October 19, 2020, Blog < here =">here</a>"> we discussed, inter alia , Administrative Order 98-20 , issued by Andrew A. Crecca, District Administrative Judge, Suffolk County. AO 98-20 established new procedures for scheduling foreclosure sales considering the COVID-19 pandemic. Briefly stated, AO 98-20 required the Court-appointed referee to schedule foreclosure sales through the Court Fiduciary Office so that only one sale would take place a

By: Jeffrey M. Haber When is a joint venture a joint venture under the law? The easy answer to this question can be found when the parties enter into an express joint-venture arrangement or an express partnership arrangement. The hard answer, however, must be found in the facts and circumstances of the dispute between the parties. In Capstone Capital Group, LLC v. DCK Worldwide Holdings, Inc. , 2023 N.Y. Slip Op. 01953 (1st Dept. Apr. 18, 2023) ( here ), the answer to the qu

By: Jeffrey M. Haber Under the doctrine of res judicata, a final judgment on the merits of a claim precludes re-litigation of that claim by a party, and those in privity with that party. 1 This means that parties cannot relitigate the claim and all claims arising out of the same transaction, or series of transactions, even if based upon different theories or if seeking different remedies. It is a “transactional analysis” that the courts of New York apply to “preclude the lit