By Jonathan H. Freiberger A significant part of a mortgage foreclosure action is the calculation of the sums due and owing to the lender. The task of computing the amount due is typically performed by the referee appointed by the court for that purpose. What the referee is permitted to include in the calculations, which is generally governed by statute and the underlying loan documents, includes, among other things, outstanding principal, advances for taxes, insurance and o

By: Jeffrey M. Haber Yesterday, the Appellate Division, First Department decided three cases involving claims for fraudulent inducement. We examine each of these cases below. Artemus USA LLC v. Leila Taghinia-Milani Inc. Artemus involved artwork that was consigned by Artemus USA LLC (“Artemus”) to defendants pursuant to a consignment agreement (“Agreement”). Plaintiffs alleged that the artwork was damaged while consigned to the Defendants. In their opposition to plaintiffs

By: Jeffrey M. Haber Last April, this Blog wrote about Sodhi v. IAC/InterActiveCorp , 2021 N.Y. Slip Op. 31220(U) (Sup. Ct., N.Y. County Apr. 8, 2021) ( here ), an action to recover money claimed to be improperly withheld by IAC/Interacticecorp (“IAC”). The primary issue in the Sodhi was whether the releases in a settlement letter covered the claims asserted in the action. The motion court held that the releases were broad and covered plaintiffs’ claim to the money alleged

By Jonathan H. Freiberger On January 5, 2022, the Second Department decided Citibank, N.A. v. Kerszko . The appeal in Citibank raised numerous “interesting and unusual issues,” but the focus of today’s article is on an issue recognized by the Second Department to be addressed by it for the first time: “whether the presentment to a court of a proposed ex parte order to show cause for an order of reference, which is rejected by the court for defects inherent in the papers, qu

By Jonathan H. Freiberger This Blog’s December 17, 2021, article entitled: “ Second Department Holds that Envelopes Containing Pre-Foreclosure Notices to Borrowers Pursuant to RPAPL 1304 Cannot Contain Any Other Notices Or Information ,” discussed Bank or America, N.A. v. Kessler , in which the Second Department held that RPAPL 1304 ’s mailing requirements for the statutory notices contemplated thereby are to be strictly construed. kessler, and the blog articles hyperlinked

By: Jeffrey M. Haber To allege a cause of action based on fraud, plaintiffs must assert “a misrepresentation or a material omission of fact which was false and known to be false by defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury. 1 To withstand a motion to dismiss, plaintiffs must satisfy each element of the claim. One of the most difficult elements

By Jonathan H. Freiberger Generally speaking, usury statutes prevent excessive interest from being charged on a loan. The New York Court of Appeals has noted that “ tatutes prohibiting usurious loans were enacted in the 15 th century England, became part of New York’s colonial history, and have remained since” and that “ heir purpose is to protect desperately poor people from the consequences of their own desperation.” Seidel v. 18 East 17 th Street Owners, Inc. , 79 N.Y.2d

To determine whether a transaction constitutes a usurious loan, it “must be ‘considered in its totality and judged by its real character, rather than by the name, color, or form which the parties have seen fit to give it.’”

By: Jeffrey M. Haber Broker-dealers are required to file suspicious activity reports (“SARs”) for transactions suspected to involve fraud or a lack of an apparent lawful business purpose. In that regard, under Section 17(a) of the Securities Exchange Act and Rule 17a-8 promulgated thereunder, a registered broker-dealer is required to file a SAR when it knows, suspects, or has reason to suspect that certain transactions (1) involve funds derived from illegal activity, (2) invo

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

By: Jeffrey M. Haber A forum selection clause is contractual provision that sets forth the location designated by the parties for dispute resolution. Such clauses can be found in virtually every type of contract, e.g. , employment agreements, commercial contracts, and purchase and sale agreements. Parties require forum selection clauses to reduce litigation expenses, avoid adverse laws, and mitigate the risks associated with unknown judges and/or juries. Under New York law, “

By: Jeffrey M. Haber The “policy of to encourage arbitration.” 1 For this reason, “ ny doubts as to whether an issue is arbitrable will be resolved in favor of arbitration.” 2 This is especially so where the agreement to arbitrate incorporates rules that explicitly authorize the arbitrator to resolve all disputes, including those concerning “the formation, existence, validity, interpretation or scope of the agreement under which Arbitration is sought.” 3 In Schindler v.

By Jonathan H. Freiberger There are two “components and constitutional predicates of personal jurisdiction.” Keane v. Kamin , 94 N.Y.2d 263, 265 (1999). “One component involves service of process, which implicates due process requirements of notice and opportunity to be heard.” Id. (citations omitted). Even though a defendant may be subject to the jurisdiction of the Court, dismissal may be sought “based on the claim that service was not properly effectuated.” Id. (cit

By: Jeffrey M. Haber As readers of this Blog know, one of the elements of a fraud claim is reliance. In the typical case, the defendant makes a false or misleading statement directly to the plaintiff, which the plaintiff claims to rely on. In the less frequent case, the misrepresentation of fact is made to a third party that relied on the alleged fraudulent statement. The question is whether, in that circumstance, a plaintiff can state a fraud cause of action, despite the abs

By Jeffrey M. Haber As readers of this Blog know, to recover damages for fraud, a plaintiff must allege “a misrepresentation or a material omission of fact which was false and known to be false by defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury.” [1] When a plaintiff contends that he or she was fraudulently induced to take some action, such as enter

By Jonathan H. Freiberger A major concern raised by potential clients when deciding whether to commence litigation is whether they are entitled to recoup their legal fees if they prevail. This issue was recently addressed in our BLOG article entitled: “ ’Can I Sue ‘Em For My Legal Fees?’ ,” in which we explained, inter alia , that: Clients are often dismayed to learn that attorney’s fees are not generally recoverable in litigation under the “American Rule,” because “ n the U

By: Jeffrey M. Haber On June 5, 2017, the U.S. Supreme Court held that claims for disgorgement imposed as a sanction for violation of the federal securities laws must be commenced within five years of the date the claim accrues. 1 In doing so, the Court concluded that disgorgement “in the securities enforcement context is a ‘penalty’ within the meaning of Section 2462” of the U.S. Code. In concluding that disgorgement is a penalty, the Supreme Court looked at two factors. F

By: Jeffrey M. Haber What is Expungement and When is It Granted? Expungement is the process by which a brokerage firm or registered representative seeks to remove an adverse disclosure event from the Central Registration Depository (CRD®) system. The CRD is the securities industry’s online registration and licensing database. Information in the CRD is obtained through forms that brokerage firms, associated persons and regulators complete as part of the securities industry reg