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

By Jonathan H. Freiberger As explained in prior Blog articles, a court will grant a motion for summary judgment if, upon all the papers and evidence submitted, the cause of action or defense is established sufficiently to warrant directing judgment in favor of the moving party as a matter of law. CPLR § 3212 (b); Gilbert Frank Corp. v. Federal Ins. Co. , 70 N.Y.2d 966, 967 (1988); Zuckerman v. City of New York , 49 N.Y.2d 557, 562 (1980). The function of the court when presen

By: Jeffrey M. Haber In today’s article, we address the question: When is an attorney authorized to act on behalf of a party? As one would expect, when the client says so, a lesson learned by the parties in Gibson, Dunn & Crutcher LLP v. Koukis , 2023 N.Y. Slip Op. 01863 (1st Dept. Apr. 11, 2023) ( here ). The primary issue in Gibson Dunn was whether the default judgment entered against defendant George Koukis in July 2019 should be vacated, and the complaint dismissed as ag

By: Jeffrey M. Haber In Norman Realty & Constr. Corp. v. 151 E. 170th Lender LLC , 2023 N.Y. Slip Op. 01843 (1st Dept. April 6, 2023) ( here ), the Appellate Division, First Department addressed the affirmative defense of contract unconscionability, a topic that this Blog has not addressed in quite some time (here). 1 It also addressed plaintiff’s claims for breach of contract and fraudulent inducement. As discussed below, Norman Realty involved an action for unconscionabi

This Blog has previously discussed informal appearances in an article aptly titled: “Informal Appearances,” from which the introductory information related to informal appearances is taken.

By: Jeffrey M. Haber In today’s article, we examine South Shore D’Lites LLC v. First Class Prods. Grp., LLC , 2023 N.Y. Slip Op. 01769 (1st Dept. Apr. 4, 2023) ( here ), a case involving the special facts doctrine in the context of a fraud claim, in particular, the justifiable reliance element of a fraud claim. South Shore D’Lites concerned licenses to sell ice cream. The licenses were sold to plaintiffs, South Shore D’Lites, LLC, D’Lites of West Caldwell, LLC, and HGB D’Li

Market analysts study publicly traded companies and make recommendations on the securities of those companies.1 Most analysts specialize in a particular industry or sector of the economy.2 As noted by the Securities and Exchange Commission (“SEC” or “Commission”), analysts exert considerable influence on a company. “Analysts’ recommendations or reports can influence the price of a company’s stock—especially when the recommendations are widely disseminated through television a

By Jonathan H. Freiberger While this Blog has addressed numerous issues relating to residential mortgage foreclosure, it has never touched upon the requirement in RPAPL 1351 (1) that a judgment of foreclosure and sale “shall direct that the mortgaged premises, or so much thereof as may be sufficient to discharge the mortgage debt, the expenses of the sale and the costs of the action, and which may be sold separately without material injury to the parties interested, be sold b

By: Jeffrey M. Haber In NW Media Holdings Corp. v. IBT Media Inc. , 2023 N.Y. Slip Op. 30875(U) (Sup. Ct., N.Y. County Mar. 22, 2023) ( here ), Justice Melissa A. Crane addressed the question whether the destruction of millions of pages of data on a Google Workspace (“Workspace”) states a claim for trespass to chattels or conversion. As discussed below, Justice Crane concluded that the allegations concerning the destruction of such data sufficed to state a claim for conversio

By: Jeffrey M. Haber As we have noted previously, the financial exploitation of seniors is a significant problem ( e.g. , here , here , here , here , and here ). As the incidence of financial exploitation and abuse increases, so do the costs to its victims. An oft-cited study by the MetLife Mature Market Institute, the National Committee for the Prevention of Elder Abuse, and the Center for Gerontology at Virginia Polytechnic Institute and State University, titled “Brok