By: Jeffrey M. Haber In New York, contracts are to be construed in accordance with the parties’ intent. 1 “The best evidence of what parties to a written agreement intend is what they say in their writing.” 2 Thus, a written agreement that is clear and unambiguous on its face must be enforced according to the plain meaning of its terms. 3 Extrinsic evidence of the parties’ intent may be considered only if the agreement is ambiguous. 4 A contract is unambiguous if “on its f

By Jonathan H. Freiberger Defaults by a party to a real estate contract, whether a purchaser or a seller, are a fruitful source of litigation. Among other remedies available to an individual or entity aggrieved by a real estate contract default is specific performance, an issue discussed in this Blog’s article entitled: “ Specific Performance (That’s What I Want) – Would be a Terrible Song Title .” Briefly stated, because of the judicially recognized “unique” nature of real

By: Jeffrey M. Haber People use social media, and the Internet in general, for all sorts of reasons. Investors are no different. Investors use social media to research stocks, look up information on a broker-dealer ( see Broker Check < here =">here</a>"> ) or investment adviser ( see Investment Adviser Public Disclosure < here =">here</a>"> ), find guidance on investing strategies, receive up-to-date news, and discuss the markets with others. While social media offers inve

By: Jeffrey M. Haber A forum selection clause is a 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 imaginable, 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 foreign judges and/or juries.

By Jonathan H. Freiberger In its February 20, 2021, article entitled: “ The New York Court of Appeals Decides Four Cases, In One Opinion, Addressing and Clarifying Issues Related to the Timeliness of the Commencement of Mortgage Foreclosure Actions ” (the “Prior Article”), this Blog discussed, Freedom Mortgage Corp. v. Engel , 37 N.Y.3d 1 (2021), a February 18, 2021, decision by the New York Court of Appeals. In Freedom , the Court of Appeals decided four cases “each turning

By: Jeffrey M. Haber The SEC Giveth In our last article (posted on September 17, 2021 ( here )) discussing the SEC’s whistleblower program, we noted that the Commission has paid more than $1 billion in awards to hundreds of whistleblowers since issuing its first award in 2012. In the month that followed, the amount paid to whistleblowers increased by more than $87 million. The first award of $11.5 million (announced on September 17, 2021, here ) was paid to two whistleblower

By Jeffrey M. Haber In Aybar v. Aybar , 2021 N.Y. Slip Op. 05393 (Oct. 7, 2021) ( here ), the New York Court of Appeals was asked to determine whether a foreign corporation that registers to do business in New York consents to the general jurisdiction of the State’s courts. As explained below, in a 5-2 decision, the Court held that registration under the Business Corporation Law (“BCL”) to do business in the State does not confer general jurisdiction over the corporation. Pro

Melville, NY ( Law Firm Newswire ) October 15, 2021 - Freiberger Haber LLP is pleased to announce that co-founding partners, Jonathan H. Freiberger and Jeffrey M. Haber, have been named by Super Lawyers magazine to be among the top lawyers in the New York metropolitan area. This is Mr. Freiberger’s second, and Mr. Haber’s tenth, consecutive year of selection. Both Messrs. Freiberger and Haber were recognized for their work in business litigation. Super Lawyers Magazine® is a

By Jonathan H. Freiberger Many contracts contain provisions requiring that in the event of a default, one party must provide to the other notice of the purported default and an opportunity to cure before the valuable rights under the contract can be terminated. In general “ he purpose of a Notice to Cure is to specifically apprise the of claimed defaults in its obligations under the and of the forfeiture and termination of the if the claimed default is not cured within a

By: Jeffrey M. Haber In prior articles, we discussed the impact a disclaimer clause in a contract can have on a fraud claim. See , e,g. , here . Namely, a disclaimer clause can preclude a fraud claim when (1) the disclaimer is specific to the fact alleged to be misrepresented or omitted; and (2) the alleged misrepresentation or omission does not concern facts peculiarly within the knowledge of the non-moving party. 1 Disclaimer clauses often are worded as “no reliance” claus

By: Jeffrey M. Haber As a general matter, when a contract fails to conform to the agreement between the parties due to the mutual mistake of the parties however induced, or of the mistake of one party and fraud of the other, a court will reform the contract so as to make it conform to the actual agreement between the parties. 1 The mutual mistake must be material ( i.e. , it must involve a “fundamental assumption” of the contract). 2 However, it does not mean that the mist

By Jonathan H. Freiberger In this Blog, we frequently write about cases and developments related to mortgage foreclosure, in general, and RPAPL 1304, specifically. Indeed, in our September 24, 2021, blog < here =">here</a>"> we discussed the importance of submitting sufficient proof of compliance with RPAPL 1304 on a motion for summary judgment and hyperlinked to prior related articles. By way of brief background, and as set forth in prior articles, in general, a foreclosin

By: Jeffrey M. Haber Litigation can be a long and drawn-out process. Indeed, it is not uncommon for lawsuits to go on for years before they reach their conclusion. Sometimes during the pendency of a lawsuit, one or more of the parties dies. When that happens, the court is divested of jurisdiction to conduct proceedings in the action until a proper substitution has been made pursuant to CPLR § 1015(a). 1 Any order rendered after the death of a party and before the substituti

By: Jeffrey M. Haber Default judgments are a part of litigation. In New York, a default judgment may be entered “ hen a defendant has failed to appear, plead or proceed to trial of an action reached and called for trial, or when the court orders a dismissal for any other neglect to proceed, ….” 1 The consequences of a default can be severe. Among other things, it allows the prevailing party to enforce the judgment using all the tools available under Article 52 of the CPLR.

By Jonathan H. Freiberger This Blog frequently analyzes residential mortgage foreclosure issues. See, e.g., < here =">here</a>"> and the articles hyperlinked therein. As relates specifically to today’s article, we have frequently focused on the pre-foreclosure notice requirements of RPAPL 1304 . < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> . In general, and as discussed in previous

By Jonathan H. Freiberger Mortgages are commonly delivered to lenders as security for the repayment of financial obligations, which, in many cases, are evidenced by promissory notes. If borrower defaults, lender can sue on the note or foreclose the mortgage, but not both simultaneously. See RPAPL 1301 . [Eds. Note: this Blog has addressed a lender’s election of remedies < here =">here</a>"> and < here =">here</a>"> .] When real property is sold at a foreclosure sale, the

By: Jeffrey M. Haber On September 15, 2021, the Securities and Exchange Commission (“SEC” or “Commission”) announced ( here ) that it paid approximately $110 million and $4 million to two whistleblowers whose information and assistance led to successful SEC and related actions. With these awards ( here ), the SEC’s whistleblower program has now paid more than $1 billion in awards to 207 whistleblowers, including over $500 million in fiscal year 2021 alone. The $110 million aw

By: Jeffrey M. Haber This Blog has written numerous articles about Ponzi schemes and the enforcement proceedings that resulted from them. See, e.g., here, here, here and here. In a Ponzi scheme, the operator creates an investment program in which “profits” are paid to earlier investors with money taken from later investors. The “profits” are, therefore, fictitious instead of returns on investment. Ultimately, Ponzi schemes collapse under their own weight, taking investors, ma