By: Jeffrey M. Haber In Wilsey v. 7203 Rawson Rd., LLC , 2022 N.Y. Slip Op. 02905 (4th Dept. Apr. 29, 2022) ( here ), the Appellate Division, Fourth Department considered principles of law familiar to readers of this Blog; namely, breach of contract and fraudulent misrepresentation. As we have noted in prior articles ( e.g. , here ), “ he essential elements of a cause of action to recover damages for breach of contract are the existence of a contract, the plaintiff’s perfor

By Jonathan H. Freiberger Statute of limitations issues frequently arises in mortgage foreclosure actions. 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>"> and < here =">here</a>"> . In this Blog article entitled: “ Revive a Time-Barred Claim Using § 17-101 of New York’s General Obligations La

By: Jeffrey M. Haber New York courts favor the enforcement of forum selection clauses. They do so because they provide certainty and predictability in the resolution of disputes. here=">here</a>" and="and" >here.=">here</a>."> A forum selection clause is “prima facie valid and enforceable unless it is shown by the challenging party to be unreasonable, unjust, in contravention of public policy, invalid due to fraud or overreaching.” Because a forum selection clause is “prima

By: Jeffrey M. Haber Since inception of this Blog, we have written about many types of fraud, such as affinity fraud, common law fraud, fraud in the inducement, fraudulent concealment, and securities fraud. Until today, we have not directly examined fraud in the execution. 1 Fraud in the execution, or fraud in the factum, arises where a party did not know the nature or the contents of the document being signed, or the consequences of signing it, and was nonetheless misled i

By Jonathan H. Freiberger 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>"> , < here =">here</a>"> , < here =">here</a>"> , < here =

By: Jeffrey M. Haber Under well-settled principles, summary judgment in lieu of complaint is available for an instrument for the payment of money only. In considering such a motion, the courts will look at the four corners of the instrument sued upon in determining whether the instrument qualifies as one for the payment of money only. See, e.g. ,="3213.&nbsp;<em>See</em>,&nbsp;<em>e.g.</em>," here, here and here.=">here</a>."> Most cases under CPLR § 3213 involve promissor

By: Jeffrey M. Haber Affinity fraud is a type of securities fraud in which the promoter of the fraud preys upon members of an identifiable group, such as a religious or ethnic community, the elderly, or a professional group. The promoter of an affinity fraud frequently is – or pretends to be – a member or a good friend of the group. The promoter often enlists respected members of the community or religious leaders from within the group to disseminate information about the sch

By Jonathan H. Freiberger Personal guaranties are contracts of suretyship pursuant to which “one party as surety binds himself to the second party as creditor to pay a debt contracted by a third party either immediately upon default of the third party or after attempts to effect collection from the third party have failed.” General Phoenix Corp. v. Cabot , 300 N.Y. 87, 92 (1949). As to when the surety’s obligation arises: hether a surety is a guarantor of payment or a guara

By: Jeffrey M. Haber Mandatory arbitration has been around for a long time. It is a mechanism used by, among others, businesses to require consumers to arbitrate their disputes rather than litigate their claims in a court of law. Although in theory a consumer can opt-out of the arbitration requirement, in reality to do so would mean that he or she would not obtain the product or service. For example, a person cannot buy something online, subscribe to a service, or join a club

By: Jeffrey M. Haber Over the years, this Blog has examined numerous cases (indeed, too many to link to) in which the plaintiff claims to have been fraudulently induced to enter into a contract with the defendant. Most of the cases were dismissed because the plaintiff failed to allege a misrepresentation of present fact, as opposed to a misrepresentation of future intent to perform under the contract. Today, we examine, International Business Machines Corp. v. GlobalFoundries

By Jonathan H. Freiberger As noted in several of this Blog’s previous articles < here =">here</a>"> , < here =">here</a>"> and < here =">here</a>"> , when an individual or entity borrows money from a lender, the repayment obligation is typically evidenced by a promissory note. To secure the borrower’s repayment obligations, lenders generally request some form of collateral. When the collateral is an interest in real property, the borrower generally delivers a mortgage to t

By: Jeffrey M. Haber In prior articles, we examined the motion for summary judgment in lieu of complaint under CPLR § 3213. See , e.g. , here and here . As explained below, summary judgment in lieu of complaint is available for an instrument for the payment of money only. Today, we examine Sanghvi Diamonds LLC v. Agadjani , 2022 N.Y. Slip Op. 30738(U) (Sup. Ct., N.Y. County Mar. 8, 2022) ( here ), and Deutsche Bank Luxembourg S.A. v. Lehner , 2022 N.Y. Slip Op. 30739(U) (Su

By: Jeffrey M. Haber The Securities and Exchange Commission (“SEC”) has frequently brought enforcement actions against those who trade upon material, non-public information. Many of these actions show that insider trading extends beyond the employees of the subject company. In those enforcement actions, an employee of the company shares material, non-public information with a third party, typically a family member or friend, who thereafter trades on the information or shares

By Jonathan H. Freiberger “The purpose of a deed is to pass title to land; it is the appropriate method of making a voluntary transfer of real property in the lifetime of the grantor.” 43 N.Y. Jur. 2d Deeds § 1 (citation/footnote omitted). A deed that is forged “lacks the voluntariness of conveyance.” Faison v. Lewis , 25 N.Y.3d 220, 224 (2015) (citation omitted). Accordingly, a deed with a forged signature “holds a unique position in the law; a legal nullity at its crea

By: Jeffrey M. Haber Generally, whether a claim is subject to arbitration is a decision for the court, not the arbitrator. However, the U.S. Supreme Court has held that “parties can agree to arbitrate ‘gateway’ questions of ‘arbitrability.’” 1 As discussed below, such “delegation clauses” are enforceable where “there is ‘clea and unmistakabl ’ evidence” that the parties intended to arbitrate arbitrability issues. 2 “When deciding whether the parties agreed to arbitrate a c

By: Jeffrey M. Haber Today, we examine 79 Madison LLC v. Ebrahimzadeh , 2022 N.Y. Slip Op. 02052 (1st Dept. Mar. 24, 2022) ( here ), a judgment enforcement action under Article 52 of the CPLR that contains some interesting issues that this Blog has not addressed in quite some time, if at all. The first issue we examine is the forum selection clause. A forum selection clause is a contractual provision that sets forth the location designated by the parties for dispute resolut

This Blog has frequently written about numerous different issues regarding residential mortgage foreclosure. One recurring issue relates to the evidentiary proof necessary for the lender to satisfy its prima facie foreclosure case and/or to demonstrate its standing to commence its foreclosure action (when the borrower raises standing as a defense).

By: Jeffrey M. Haber Family business disputes tend to be ugly, destructive, and protracted. For a case in point, we examine Max v. ALP, Inc. , 2022 N.Y. Slip Op. 01969 (1st Dept. Mar 22, 2022) ( here ), a heated and contentious dispute among members of the Max family regarding control of ALP, Inc., a corporation formed by the iconic artist Peter Max to, among other things, market, license and commercialize his artwork. ALP was formed in 2000. Adam and Libra, Peter’s children,