By: Jeffrey M. Haber It is axiomatic that a plaintiff cannot succeed on his or her cause of action if there are no provable damages. It is, therefore, important that the plaintiff plead and prove each element of the claim, including the damages element. After all, damages are “an essential element” 1 of any tort cause of action. 2 This basic tenant of law was at the heart of Mohinani v. Charney , 3 a case in which plaintiff failed to prove damages resulting from defendants’

By: Jeffrey M. Haber The growth of information technology and electronic communication over the past few decades has made it increasingly easy to collect, maintain, and transfer personal information.1 With the advancement of technology, the public faces repeated threats to the integrity and privacy of their personal information. The federal government has taken steps to help protect individuals, and to help individuals protect themselves, from the risks of theft, loss, and ab

By Jonathan H. Freiberger This Blog frequently covers the pre-foreclosure notice requirements of RPAPL 1304 . See, e.g. , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> and < here =">here</a>"> . While this stuff is interesting, it also happens to be the subject of frequen

By Jonathan H. Freiberger Laborers and material suppliers (collectively, “Providers”) that add value to construction projects should be paid for their work by the owner, general contractor or whoever else brought them to the project in the first instance. If Providers do not receive payment despite their own performance, several remedies are available. For example, a simple claim for breach of contract may be brought by an unpaid Provider. Such remedies, however, may be in

By: Jeffrey M. Haber It is well-settled that the arbitration provisions of the Civil Practice Law and Rules (CPLR § 7501 et seq .) evidence a legislative intent to encourage arbitration. 1 In fact, arbitration is a preferred means for the settlement of disputes between parties. 2 In light of the foregoing, (1) when parties to a contract have clearly and unambiguously agreed to arbitrate their disputes, the courts will enforce that agreement, as they would any other agreement

By: Jeffrey M. Haber A recurring question that courts and litigants often encounter is how to apply the continuing wrong doctrine to a statute of limitations. Statutes of limitations restrict the time within which a defendant can be held liability for all types of alleged wrongdoing. Plaintiffs who do not pursue their rights within the limitations period will find the courthouse doors closed to their claims. For this reason, whether the statute of limitations has run is an i

By Jonathan H. Freiberger I say it all the time and I’m going to say it again, the readers of this Blog know that we frequently discuss numerous aspects of residential mortgage litigation. S ee, e.g., < here =">here</a>"> and the articles linked therein. A related subtopic that gets much attention in this Blog is the pre-foreclosure notice requirements of RPAPL 1304 . See, e.g. , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> ,

By: Jeffrey M. Haber In Yunjie Yang v. Knights Genesis Group , 2022 N.Y. Slip Op. 32126(U) (Sup. Ct., N.Y. County July 6, 2022) ( here ), the court was asked to consider various matters associated with the particularity requirement for pleading fraud. In this regard, by the court examined the group pleading doctrine and the specificity needed to maintain a fraud claim. The motion court was also asked to consider alter ego liability and the factual bases for piercing the corpo

By: Jeffrey M. Haber It has been more than two years since the start of the global pandemic. In the early days of the pandemic, many states imposed emergency measures to address the health crisis – measures that had the effect of reducing business operations or shutting down the business. New York was no different. Among the measures implemented were government-mandated closures. For retailers this meant the loss of business. With business shutdown, or substantially curtailed

By Jonathan H. Freiberger This Blog has written extensively on a variety of issues related to mortgage foreclosure, including those related specifically to limitations periods ( see, e.g., < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> and < here =">here</a>"> . As to the limitations period relevant to mortgage foreclosure actions, we have previously written that: An action to foreclose a mortgage is governed by a six-year statute

The question above was recently answered by Justice Francois A. Rivera in Reid v. Service , 2022 N.Y. Slip Op. 32017(U) (Sup. Ct., Kings County June 9, 2022) ( here ). As discussed below, the alleged fact – a claimed misrepresentation – was only an allegation, refuted by the undisputed facts of the case. Reid involved the administration by defendant over the Estate of Edgar Reid, Sr. (the “Estate”). Defendant had been granted limited letters of administration by the Kings Cou

By: Jeffrey Haber As we have noted in prior articles, fraudulent schemes come in many forms. One type of fraud that has gained favor among the unscrupulous involves cryptocurrency: in particular, using cryptocurrency as an investment platform. Unbeknown to investors – at least, until it is too late –these investment opportunities are both a Ponzi scheme and a Pyramid scheme at the same time. On May 13, 2022, the Commodity Futures Trading Commission (“CFTC”) announced (here)

By Jonathan H. Freiberger In our January 14, 2022, Blog Article entitled: “ Don’t Let Undue Delay Cause You to Lose Your Interest in Interest ”, we discussed, inter alia , the court’s discretion in the calculation of the amount of interest due to a lender in a mortgage foreclosure actions. Regarding the court’s equitable powers, we stated: CPLR 5001(a) provides, in relevant part that “in an action of an equitable nature, interest and the rate and date from which it shall be

By: Jeffrey M. Haber The Duplication Doctrine is well-known to readers of this Blog. In a nutshell, the doctrine holds that “ cause of action for fraud does not arise when the only fraud charged relates to a breach of contract.” 1 “To plead a viable cause of action for fraud arising out of a contractual relationship, the plaintiff must allege a breach of duty which is collateral or extraneous to the contract between the parties.” 2 A plaintiff must also allege that the reco

By Jonathan H. Freiberger Issues relating to contract interpretation are a frequent subject addressed in this Blog. “The fundamental, neutral precept of contract interpretation is that agreements are construed in accord with the parties’ intent and the best evidence of what the parties to a written agreement intend is what they say in their writing.” Henrich v. Phazar Antenna Corp. , 33 A.D.3d 864, 866-67 (2 nd Dep’t 2006) (citations, internal quotation marks and brackets

By: Jeffrey M. Haber On June 5, 2019, the Securities and Exchange Commission (“SEC” or the “Commission”) adopted “Regulation Best Interest” or “Reg BI”.1 In connection with adoption of the regulation, the SEC issued a 175-page release in which it offered guidance on how the Commission interprets Reg BI.2 The regulation established a standard of conduct for broker-dealers and associated persons when they recommend securities transactions to retail customers. Reg BI is intended

By: Jeffrey M. Haber It has been more than two years since this Blog has written about the account stated cause of action ( here ). On June 21, 2022, the Appellate Division, First Department gave us the opportunity to do so again. Hess 938 St. Nicholas Judgment LLC v. 936-938 Cliffcrest Hous. Dev. Fund Corp. , 2022 N.Y. Slip Op. 03989 (1st Dept. June 21, 2022) ( here ). “An account stated is an agreement between parties to an account based upon prior transactions between them

By Jonathan H. Freiberger When an action is timely commenced but gets dismissed, CPLR 205(a) may permit a plaintiff to commence a new action within six months of the dismissal notwithstanding the expiration of the limitations period. here,=">here</a>," and="and" the="the" introduction="introduction" to="to" this="this" article="article" is="is" taken="taken" our="our" former="former" article.="article."> CPLR 205(a) provides: New action by plaintiff. If an action is timel