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

By Jonathan H. Freiberger The New York City Council promulgated rules to, inter alia , protect consumers from debt collection agencies ( see Title 20, Chapter 2, Subchapter 30 of the New York City Administrative Code (the “Code”). Indeed, the Code’s “legislative declaration” ( §20-488 ) recognizes that some debt collection agencies are “unscrupulous” and employ “abusive tactics”. The Code, at §20-489(a) , defines “debt collection agency” as: a person engaged in business th

By Jeffrey M. Haber Generally, whether a claim is subject to arbitration is a decision for the court, not the arbitrator. 1 Notwithstanding, the U.S. Supreme Court has held that “parties can agree to arbitrate ‘gateway’ questions of ‘arbitrability.’” 2 Such “delegation clauses” are enforceable where “there is ‘clea and unmistakabl ’ evidence” that the parties intended to arbitrate arbitrability issues. 3 “When deciding whether the parties agreed to arbitrate a certain m

To state a claim for fraud, a plaintiff must satisfy each element of the claim; namely, “a material misrepresentation of fact, knowledge of its falsity, an intent to induce reliance, justifiable reliance by the plaintiff and damages.”

By Jonathan H. Freiberger Last week this Blog examined WFE Ventures, Inc. v. GBD Lake Placid, LLC , decided on August 12, 2021, by the Appellate Division, Third Department, which addressed numerous construction litigation issues < here =">here</a>"> . Last week’s article focused on issues related to flood damage resulting from an underlying construction project; this week we will address other issues presented in the Court’s Memorandum and Order. Knowledge of the facts as s

By Jeffrey M. Haber An investment adviser is a fiduciary, and as such is held to the highest standard of conduct and must act in the best interest of his/her client.1 This means, among other things, that an investment adviser has an affirmative duty of utmost good faith and full and fair disclosure of all material facts.2 An investment adviser’s fiduciary duties are made enforceable under Section 206 of the Investment Advisers Act of 1940 – the Act’s anti-fraud provisions.3 T

By Jeffrey M. Haber When a party releases another from claims or the threat of claims, he/she is giving up the right to sue the other in connection with the subject of the release. 1 A release effectively eliminates all claims against another that are possessed by the party giving the release. It does not matter whether the releasor knew of the claims at the time that he/she gave the release, so long as “the parties so intend and the agreement is ‘fairly and knowingly made.’

By Jonathan H. Freiberger On August 12, 2021, the Appellate Division, Third Department, decided WFE Ventures, Inc. v. GBD Lake Placid, LLC , a multi-faceted construction litigation. Today’s article, however, will focus on flood damage resulting from the underlying construction project. In WFE , the defendant owner (“Owner”) built a Marriot hotel in Lake Placid. Owner hired an architectural firm (“Architect”) to obtain site plan (“Plan”) approval (“Approval”) from the applic

By Jeffrey M. Haber Cybersecurity disclosures are important for a number of constituencies. For example, consumers have a right to know if their data has been compromised at the company in which they do (or have done) business. Investors have a right to know if the company in which they have invested, or will invest, is the victim of a data breach and how such a breach has impacted (or will impact) the company’s business and operations. As cybersecurity breaches become more

By Jeffrey M. Haber A confession of judgment is an agreement whereby a defendant or debtor agrees to the entry of judgment against him/her in an amount certain. It is a procedural device whereby the plaintiff or creditor can bypass the commencement of a lawsuit to obtain the amount “confessed.” Confessions of judgment are used in a variety of circumstances. For example, parties to a litigation may use a confession of judgment as part of a settlement whereby the defendant agr