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By: Jeffrey M. Haber “A” brings an action against “B”. The causes of action asserted against “B” are all timely for statute of limitations purposes.  Following discovery, “A” learns that “C” played a material role in the facts and circumstances leading up to the claims asserted in the complaint. “A” wants to amend the complaint to include claims against “C”, who would be a new defendant. The claims that “A” plans to assert against “C” are, however, time barred. Can “A” bring

By: Jeffrey M. Haber In Gold v. Rothfeld , 2023 N.Y. Slip Op. 05006 (2d Dept. Oct. 4, 2023) ( here ), the Appellate Division, Second Department affirmed the dismissal of a fraud complaint on two grounds: collateral estoppel and failure to plead fraud with particularity. We examine the decision and the principles underpinning the holding below. The Requirement To Plead Fraud With Particularity To state a claim for fraud, a plaintiff must allege “a misrepresentation or a materi

By Jonathan H. Freiberger This Blog frequently addresses complex substantive and procedural issues.  Today, however, we return to basics.  In New York, an “action is commenced by the filing of a summons and complaint or a summons with notice in accordance with rule twenty-one hundred two ” of the CPLR.  CPLR 304(a) .  “Filing” means “the delivery of the summons with notice summons and complaint … to the clerk of the court in the county in which the action … is brought ….”  C

By: Jeffrey M. Haber As readers of this Blog know, one of the elements of a fraudulent inducement claim is “justifiable reliance.” The New York Court of Appeals has emphasized the importance of the justifiable reliance element, noting that it is a “fundamental precept” of a fraud claim and is critical to the success of such a claim. 1 Determining whether a plaintiff justifiably relied on a misrepresentation or omission, however, is “always nettlesome” because it is so fact-in

By: Jeffrey M. Haber We have often written about the SEC’s whistleblower program and, in particular, the success of the program with respect to detecting and preventing violations of the federal securities laws. The success of the program depends, in large part, on the ability of would-be whistleblowers to have the freedom to report wrongdoing without fear of reprisal. Taking steps to impede an employee or former employee from sharing information with the SEC impairs this fr

By: Jeffrey M. Haber In New York, foreign entities – that is, corporations, limited liability companies and partnerships authorized to do business in another jurisdiction or country – are required to register to business with the Secretary of State. 1 The failure to receive such authority deprives the foreign entity of the ability to affirmatively access the courts of New York and subjects any action commenced by the foreign entity to dismissal. 2 The purpose of the registra

By: Jeffrey M. Haber “The doctrine of forum non conveniens permits a US court to decline to exercise its judicial jurisdiction if the court would be a seriously inconvenient forum and if an adequate alternative forum exists.” 1 The doctrine presupposes at least two forums in which the defendant is amenable to process; the doctrine furnishes criteria for choice between them. 2 “The forum non conveniens determination is committed to the sound discretion of the trial court.

By Jonathan H. Freiberger Most often a lawsuit begins with the filing of a summons and complaint or summons with notice.  CPLR 304 .  Once the lawsuit is commenced, the plaintiff is required to serve the defendant(s) with process – the event by which the court obtains personal jurisdiction over the defendant(s).  [This Blog has written about service of process, see, e.g. , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> and < here =">here</a>"> .]  There a

By: Jeffrey M. Haber A question about the application of law sometimes arises when a statute is amended, or the Legislature enacts a new statute that governs a particular issue. In this regard, the question concerns whether the new law or amendment should be applied retroactively or prospectively. There are “two axioms of statutory interpretation” that are relevant in determining whether a statute or amendment should be given retroactive effect. 1 “Amendments are presumed to