By: Jeffrey M. Haber “A boiler room is a place or operation—usually a call center—where high-pressure salespeople call lists of potential investors (‘sucker lists’) to peddle speculative, sometimes fraudulent, securities. Sucker lists identify victims of previous scams.”1 The term “boiler room” originates from the practice of running high-pressure sales operations in the basement or boiler room of a building.2 A broker using boiler-room tactics provides only upbeat, positive

By Jonathan H. Freiberger It is common for contracts to require that one party procure, for its own protection and for the protection of the other party, specific types of insurance coverage and the dollar amounts of such coverage. Insurance procurement provisions are typically found in, among others, construction contracts and real property leases. Such insurance procurement provisions are material parts of the contracts in which they appear. On March 15, 2022, the Appella

By: Jeffrey M. Haber Under New York law, an action based upon fraud must be commenced within six years of the date the cause of action accrued, or within two years of the time the plaintiff discovered or could have discovered the fraud with reasonable diligence, whichever is greater. 1 The cause of action accrues when “every element of the claim, including injury, can truthfully be alleged”, 2 “even though the injured party may be ignorant of the existence of the wrong or i

By: Jeffrey M. Haber A recurring theme in fraud jurisprudence is the dismissal of fraud claims that duplicate breach of contract claims. As we have noted, a fraud claim will not survive a dismissal motion when there is “a valid and enforceable written contract govern a particular subject matter” and the recovery sought arises out of the same facts and circumstances. 1 There are exceptions to this rule, such as where “a legal duty independent of the contract itself has been

By Jonathan H. Freiberger In general terms, venue is the place where the trial of an action will take place. Venue issues in New York practice are governed by Article 5 of the CPLR . [Eds. Note: this BLOG has previously written about Article 5 of the CPLR < here =">here</a>"> and < here =">here</a>"> .] As indicated in our prior articles, the plaintiff, as the party bringing the proceeding, generally gets to choose, in the first instance, venue. Plaintiffs, however, do no

By: Jeffrey M. Haber In April 2021, this Blog examined the doctrines of frustration of purpose and impossibility of performance in the context of Covid-19 ( here ). In particular, we examined 1877 Webster Ave. Inc. v. Tremont Ctr., LLC , 2021 N.Y. Slip Op. 21113 (Sup. Ct., Bronx County Mar. 29, 2021), a case involving a commercial lease for space that was to be used as a night club and “for no other purpose”. The plaintiff commenced the action seeking a declaration that the p

By: Jeffrey M. Haber A common theme in commercial litigation is the assertion of a breach of contract claim and a fraudulent inducement claim. As readers of this Blog know, where both claims are asserted, more times than not, the fraud claim is dismissed under the duplication of claims doctrine. Stated simply, the doctrine provides that a fraud claim cannot stand side-by-side with a breach of contract claim when there is “a valid and enforceable written contract govern a pa

By Jonathan H. Freiberger As indicated in our previous articles regarding RPAPL 881, Real property owners or lessees (“Owners”) often find that their real property is in need of improvement and/or repair (the “Work”). [Eds. Note: this Blog has discussed RPAPL 881 < here =">here</a>"> and < here =">here</a>"> .] Sometimes, the Work requires access to adjoining property (a “Neighbor”). In many instances, a Neighbor graciously permits access to the Owner’s contractors so th

By: Jeffrey M. Haber Arbitration is an alternative dispute resolution mechanism that enables parties to resolve disputes without going to court. Arbitration is similar to a trial without the formalities. It is an adversarial proceeding where the parties can call witnesses and present evidence to a neutral arbitrator or panel of arbitrators. The rules of discovery and evidence are relaxed to make it a shorter and more cost-efficient process. Often, the parties select the arbit

In drafting a contract, it is very common for the parties to include a choice of law provision. These provisions typically provide that a particular state’s law will apply regardless of conflict of laws principles. Questions arise as to which law to apply when a dispute takes place in a state that is different than the one in the contract. Today we examine Morplay Management Inc. v. Castro , 2022 N.Y. Slip Op. 30467(U) (Sup. Ct., Feb. 7, 2022) ( here ), in which the Court wa

By Jonathan H. Freiberger Just when you thought that there is nothing left to write about on RPAPL 1304 notices, a new case is decided with an interesting twist. Followers of this Blog know that we frequently address issues involving residential mortgage foreclosure. Decisions involving the pre-foreclosure requirements of RPAPL 1304 are frequently rendered by the Appellate Courts in New York and, accordingly, are analyzed in this Blog’s articles. See, e.g., < here =">here

By: Jeffrey M. Haber When someone speaks of a dispute resolution clause, lawyers most likely think the speaker is referring to an arbitration clause. But, as discussed in Innovative Concepts & Design, LLC v. AL Infinity, LLC , 2022 N.Y. Slip Op. 01122 (1st Dept. Feb. 22, 2022) ( here ), a dispute resolution clause can be something completely different. It can place dispute resolution in the hands of one of the parties to a contract. Such clauses are binding and enforced by th

By: Jeffrey M. Haber Section 922 of the Dodd-Frank Wall Street Reform and Consumer Protection Act added Section 21F to the Securities Exchange Act of 1934 (“Exchange Act”), establishing the Securities and Exchange Commission’s whistleblower program. Among other things, Section 21 authorizes the SEC to make monetary awards to individuals who voluntarily provide original information that leads to successful SEC enforcement actions resulting in monetary sanctions exceeding $1

By Jonathan H. Freiberger On February 16, 2022, the Appellate Division, Second Department, decided Bank of New York Mellon Trust Company v. Lee , a mortgage foreclosure action that was dismissed, as abandoned, pursuant to CPLR 3215(c) due to lender’s failure to take any “proceedings toward entry of a default judgment within a year after the defendant’s default.” [Eds. Note: This Blog previously has discussed CPLR 3215(c) < here =">here</a>"> , < here =">here</a>"> , < here

By: Jeffrey M. Haber It is not uncommon for parties in commercial transactions to include in their contracts a provision that limits the types of damages recoverable in the event of a breach. Typically, these provisions include a limitation on the recovery of lost profits. An example of such a provision can be found in the agreement before the court in Rising Sun Constr. L.L.C. v. CabGram Dev. LLC , 2022 N.Y. Slip Op. 00989 (1st Dept. Feb. 15, 2022) ( here ). In New York, and

By: Jeffrey M. Haber As readers know from past articles, CPLR § 7511 (b) sets forth the statutory grounds for vacating an arbitration award. Under that section, a court may vacate an award if the rights of the movant were prejudiced by: (1) corruption, fraud or misconduct in procuring the award; (2) partiality of the arbitrator; (3) the arbitrator exceeding or imperfectly executing his/her power; or (4) the arbitrator failing to follow the procedure of Article 75. With resp

By Jonathan H. Freiberger Followers of this Blog know that we frequently address issues involving residential mortgage foreclosure. Decisions involving the pre-foreclosure requirements of RPAPL 1304 are frequently rendered by the Appellate Courts in New York and, accordingly, are analyzed in this Blog’s articles. See, e.g., < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> and < here =">

By: Jeffrey M. Haber Under New York law, an action based upon fraud must be commenced within six years of the date the cause of action accrued, or within two years of the time, the plaintiff discovered or could have discovered the fraud with reasonable diligence, whichever is greater. 1 The cause of action accrues when “every element of the claim, including injury, can truthfully be alleged”, 2 “even though the injured party may be ignorant of the existence of the wrong or