By: Jeffrey M. Haber In past articles, we have noted the importance of identifying the statements claimed to be false and misleading. In this regard, we talked about the need to plead the who, what, where, when and how of the alleged fraud. In other words, the plaintiff must allege the first paragraph of any newspaper story. The reason for such pleading is to satisfy the particularity requirement of CPLR § 3016(b). Under CPLR § 3016(b), a plaintiff alleging fraud must provid

By Jonathan H. Freiberger For any number of reasons, a party asserting a claim or claims in a litigation may decide that it no loner wishes to pursue them. In such a case, CPLR 3217 outlines the manner in which claims, depending on the stage of litigation, may be discontinued. Among others, an action can be discontinued without a court order: “by serving upon all parties to the action a notice of discontinuance at any time before a responsive pleading is served or, if no r

By Jonathan H. Freiberger In general, to “establish prima facie entitlement to judgment as a matter of law in an action to foreclose a mortgage, a plaintiff must produce the mortgage, the unpaid note, and evidence of default.” M&T Bank v. Barter , 186 A.D.3d 698, 799 (2 nd Dep’t 2020) (citations omitted). As readers of this Blog know, depending on the defenses raised in borrower’s answer, lender may be required to submit additional proof to meet its prima facie case. See,

Financial statements provide important information about a corporation’s financial health.1 They give insight into the corporation’s operations, cash flow, and overall financial condition.2 Investors and shareholders use financial statements to make decisions about whether to purchase the securities of a corporation and, once purchased, the performance of their investment.3 Given the importance of accurate financial statements to the decision-making process of investors and s

By Jonathan H. Freiberger A notice of pendency is a provisional remedy available to litigants seeking a judgment that affects title to real property. 5303 Realty Corp. v. O&Y Equity Corp. , 64 N.Y.2d 313 (1984). The rules concerning notices of pendency are found in Article 65 of the CPLR. As the name suggests, a notice of pendency puts the world on constructive notice that an action has been commenced that may affect the title to the property and, accordingly, “ person w

By: Jeffrey M. Haber It is well-settled that a plaintiff asserting a derivative claim seeks to recover for injury to the business entity. A plaintiff asserting a direct claim seeks redress for injury to himself/herself individually. “The distinction between derivative and direct claims is grounded upon the principle that a stockholder does not have an individual cause of action that derives from harm done to the corporation but may bring a direct claim when the wrongdoer has

By: Jeffrey M. Haber One of the elements of a fraud claim that plaintiffs have difficulty satisfying is justifiable reliance. As evident from the reported decisions, the justifiable reliance element is most often used by defendants to secure dismissal of the claim against them. In LIK Hospitality LLC v. Otway , 2022 N.Y. Slip Op. 32979(U) (Sup. Ct., N.Y. County Aug. 31, 2022) ( here ), a case involving claims of, inter alia , fraudulent inducement, the justifiable reliance el

By: Jeffrey M. Haber Sometimes, a plaintiff will find it difficult to serve a defendant with process. There can be many reasons for such difficulties. Avoidance is one such reason. After all, no one wants to be sued. When a defendant tries to avoid service, a plaintiff may request permission from the court to serve the defendant using alternative means, such as service by publication. That was the situation in Big Yuk Chiu v. Louzon , 2022 N.Y. Slip Op. 32941(U) (Sup. Ct., N.

By: Jeffrey M. Haber On August 26, 2022, the Securities and Exchange Commission (“SEC” or “Commission”) announced ( here ) that it adopted two amendments to the rules governing its whistleblower program. The first rule change allows the Commission to pay whistleblowers for their information and assistance in connection with non-SEC actions in certain circumstances. The second rule affirms the Commission’s authority to consider the dollar amount of a potential award for the l

By Jonathan H. Freiberger Regular readers of this Blog are familiar with Bank of America, N.A. v. Kessler , 202 A.D.3d 10 (2021)(“ Kessler ”), a case about which we have previously written < here ,=">here</a>," here=">here</a>"> and which addresses the pre-foreclosure notice requirements of RPAPL 1304 (a topic that is a frequent subject of this Blog – see < here =">here</a>"> and the articles linked therein). Briefly, as noted in prior Blog articles, RPAPL 1304 requires

By Jonathan H. Freiberger Section 3025 of the CPLR permits litigants to amend their pleadings. Without leave of court, a party can amend a pleading once, as of right, “within twenty days after its service, or at any time before the period for responding to it expires, or within twenty days after service of a pleading responding to it.” CPLR 3025(a). After the expiration of the “as of right” time to amend pleadings, a party can seek the court’s permission (or all parties

By: Jeffrey M. Haber New York “favors and encourages arbitration as a means of conserving the time and resources of the courts and the contracting parties”. 1 Under the Federal Arbitration Act, “‘questions of arbitrability must be addressed with a healthy regard for the federal policy ... any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration.’” 2 Thus, “where the contract contains an arbitration clause, there is a presumption of a

By: Jeffrey M. Haber It is common to include a notice provision in commercial contracts and instruments, such as a loan, promissory note or guaranty. Notice provisions identify the party to whom written notice is to be given and specify the required method and means for delivery of written notice under the contract or instrument. Sometimes, the provision will require the parties to update the provision to account for changes to his or her contact information. As shown in Huds

By: Jeffrey M. Haber The disclosure of related-party transactions is an important part of a company’s corporate governance and financial statements. It provides transparency as to how the entity’s financial position and financial performance may be affected by transactions with related parties.1 The definition of a related party is not limited. A related party may be someone who has direct or indirect control (including common control), joint control or significant influence

By: Jeffrey M. Haber It is not often that a defendant can defeat a motion for summary judgment under CPLR § 3213. In Landa v. Friedman , 2022 N.Y. Slip Op. 32673(U) (Sup. Ct. N.Y. County Aug. 5, 2022) (here), however, that is exactly what happened. See, e.g. ,="<em>See</em>,&nbsp;<em>e.g.</em>," here, here and here.=">here</a>."> Under CPLR § 3213, a plaintiff may seek summary judgment in lieu of a complaint “ hen action is based upon an instrument for the payment of mone

By: Jeffrey M. Haber “Understanding what investors value and look for in a financial adviser is critical to both the client’s and adviser’s success.”1 One factor investors consider is reputation. For an adviser, a good reputation can be a valuable tool. It can be used to attract new clients and generate revenue. But, it can also undermine an advisor’s business in complex litigation. Indeed, there are many circumstances that can negatively impact an adviser’s reputation (e.g.,

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 For this reason, “New York courts interfere as little as p

By: Jeffrey M. Haber Previously, this Blog examined the doctrines of frustration of purpose and impossibility of performance in the context of Covid-19 ( See here , here , and here ). Because the Covid-19 pandemic and these doctrines continue to work their way through the courts, we do so again today. In McLearen Square Shopping Center Herndon, Va. L.P. v. BadaNara, LLC , the plaintiff, a commercial landlord, brought suit against defendant BadaNara, LLC (“BadaNara”) 1 an