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By: Jeffrey M. Haber “A third-party beneficiary … is a person or entity that receives benefits from a contract between two other parties, even though they are not a party to the contract.” The concept of a third-party beneficiary stems from the notion that “it is just and practical to permit the person for whose benefit the contract is made to enforce it against one whose duty it is to pay” or perform. “ party asserting rights as a third-party beneficiary must establish (1)

By: Jonathan H. Freiberger CPLR 3213 , which is a procedural device permitting a plaintiff, under certain circumstances, to obtain summary relief at the very beginning of a lawsuit, provides, in pertinent part: When an action is based upon an instrument for the payment of money only or upon any judgment, the plaintiff may serve with the summons a notice of motion for summary judgment and the supporting papers in lieu of a complaint. The summons served with such motion papers

By:  Jeffrey M. Haber It is well-settled that leave to amend a pleading is to be freely granted. Leave may be denied, however, if the proposed amendment is palpably insufficient or patently devoid of merit, or if it would cause undue prejudice to a party. Amendments that seek to add a time-barred claim or party will be found to be patently devoid of merit, unless the untimeliness can be saved by application of the relation-back doctrine. The statutory basis for the relatio

By  Jeffrey M. Haber A confession of judgment is an agreement whereby a defendant or debtor agrees to the entry of judgment against him/her in an amount certain. It is a procedural device whereby the plaintiff or creditor can bypass the commencement of a lawsuit to obtain the amount “confessed.”  Confessions of judgment are used in a variety of circumstances. For example, parties to a litigation may use a confession of judgment as part of a settlement whereby the defendant ag

By Jonathan H. Freiberger Today’s Blog article addresses the issue of waiver of lease rights. Frequently, litigation involves the question of whether a party waived certain of its rights; whether contractual or otherwise.  “A valid waiver requires no more that the voluntary and intentional abandonment of a known right which, but for the waiver, would have been enforceable.” Cavayero v. Cavayero , 184 A.D.3d 801, 802 (2 nd Dep’t 2020) (citations, internal quotation marks and

By: Jeffrey M. Haber In the world of e-commerce, a person cannot buy something online, subscribe to a service, or join a club or organization without agreeing to the provider’s “terms of service”. These terms are often lengthy and difficult to read. For these reasons, among others, most people simply click the “I agree” button or link without reading the text or thinking about what they agreed to. Many consumer advocates argue that electronic terms of service should not be bi

By: Jeffrey M. Haber In Bron v. Fritch , 2024 N.Y. Slip Op. 32439(U) (Sup. Ct., N.Y. County July 12, 2024 ( here ), the court was asked to confirm an arbitration award, pursuant to CPLR 7510, stemming from various disputes between the owners of a company engaged in electrical contracting. As discussed below, the court confirmed the award .  The parties in Bron jointly owned E. Electric Contracting Inc. (“EEC”). Their respective duties and ownership interests were governed by

By Jonathan H. Freiberger The Courts of New York will not aid in the enforcement of a contract when the subject matter is illegal. Cases standing for this seemingly unremarkable proposition are varied. For example, in Bonilla v. Rotter , 36 A.D.3d 534 (1 st Dep’t 2007), the plaintiff was a suspended attorney. The Defendants assumed responsibility for the plaintiff’s cases during the suspension. The plaintiff claimed that he had an agreement with the defendant to provide serv

By: Jeffrey M. Haber In Iberdrola Energy Projects v. Oaktree Capital Management L.P. , 2024 N.Y. Slip Op. 03798 (1st Dept. July 11, 2024) ( here ), the Appellate Division, First Department was asked to determine the scope of a no recourse provision in a contract between two sophisticated commercial actors relating to the construction of a power plant, and, relatedly, the extent to which certain non-parties to the contract (defendants) were insulated from liability by virtue