By Jonathan H. Freiberger A court can award sanctions to any party or attorney in any civil action or proceeding before the court, except where prohibited by law, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct as defined in this Part. 22 NYCRR 130-1.1 ; see also Conregation Ahavas Moische, Inc. v. Katzoff , 134 A.D.3d 934 (2 nd Dep’t 2015). “In addition to or in lieu of awarding co

By: Jeffrey M. Haber As readers of this Blog know, we often write about the pleading requirements under the Civil Practice Law and Rules (“CPLR”). In that regard, many of our articles involve cases in which CPLR 3016(b) is at issue – the provision of the civil practice rules requiring pleading fraud with particularity. There is another provision of the civil practice rules that requires particularity – CPLR 3016(a). This provision of the CPLR concerns claims for libel and sla

By Jonathan H. Freiberger Among the problems resulting from COVID-19, is the pandemic’s effect on business. Numerous businesses were forced to close due to lock downs and supply chain issues. The economic slowdowns and business closures caused by the pandemic has generated much litigation; a great deal of which has occurred in the landlord/tenant arena. [This BLOG has addressed landlord/tenant COVID-19 related litigation < here =">here</a>"> , < here =">here</a>"> , < here

By: Jeffrey M. Haber It should come as no surprise that one of the goals of an investment fraud is the theft of customer funds for the scammer’s personal benefit. In legal parlance, this aspect of a fraudulent investment scheme is called misappropriation. Misappropriation occurs when a person uses another person’s money without authorization. Misappropriation of funds mirrors the crime of embezzlement, which is a crime committed by a person having a relationship of trust or

By: Jeffrey M. Haber In TD Bank, N.A. v. Keenan , 2023 N.Y. Slip Op. 06158 (2d Dept. Nov. 29, 2023) ( here ), the Appellate Division, Second Department examined the often “nettlesome” question of whether a plaintiff claiming fraud has satisfied the justifiable reliance element of the claim. As readers of this Blog know, we often write about fraud cases where the primary issue for the court to consider is the justifiable reliance element of the claim. We do so because of the i

By Jonathan H. Freiberger Many times, remedies for the breach of a contract other than monetary damages are necessary to make a plaintiff whole. One such remedy is specific performance [a topic previously addressed by this BLOG, inter alia , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> < here =">here</a>"> and < here =">here</a>"> ]. The remedy of specific performance “will not be ordered where money damages would be adequate to protect the expectat

In Stagen v. Neu , 2023 N.Y. Slip Op. 06105 (1st Dept. Nov. 28, 2023) ( here ), the Appellate Division, First Department addressed an issue of contract interpretation involving a word in a settlement agreement that most readers would think has a distinct and undisputed meaning – “employ”. As discussed below, the Court found an issue of fact as to what it means to be “employed” in the context of the record before it. The Court also touched upon the law surrounding third-party

By: Jeffrey M. Haber As we have often explained in the articles in which we have examined fraud claims, to withstand a motion to dismiss, the plaintiff must plead fraud with particularity as required under CPLR § 3106(b), cannot lump all the defendants together so that the plaintiff runs afoul of the group pleading prohibition, and cannot duplicate a breach of contract claim with the fraud claim. Lerman v. 2211 Third Ave. Mazal Holdings LLC , 2023 N.Y. Slip Op. 34092(U) (Sup.

By: Jeffrey M. Haber In July of this year, we wrote about a fraud action involving the EB-5 Immigrant Investor Program (“EB-5 Program” or “Program”) ( here ). Under the EB-5 Program, investors are eligible for permanent residency status in the U.S. if they make a qualifying investment in a new commercial enterprise in the U.S. that creates a certain number of permanent full-time jobs for qualified U.S. workers. As we often do in our articles, we examine the legal issues invo