“It is a fundamental principle of our jurisprudence that the power of a court to declare the law only arises out of, and is limited to, determining the rights of persons which are actually controverted in a particular case pending before the tribunal.” Matter of Darcy M. , ___ A.D.3d ___ *1 (2 nd Dep’t June 9, 2021) (quoting Matter of Hearst Corp. v. Clyne , 50 N.Y.2d 707, 713 (1980)) (internal quotation marks omitted). Courts cannot issue “advisory opinions”. Matter of D

In New York, contracts are to be construed in accordance with the parties’ intent. See , e.g. , Slatt v. Slatt , 64 N.Y.2d 966 (1985). “The best evidence of what parties to a written agreement intend is what they say in their writing.” Slamow v. Del Col , 79 N.Y.2d 1016, 1018 (1992). Thus, a written agreement that is clear and unambiguous on its face must be enforced according to the plain meaning of its terms. See , e.g. , W.W.W. Assoc. v Giancontieri , 77 N.Y.2d 157, 162 (1

Cherry picking is the process of selecting securities to invest in by mimicking the trading of other investors (both individual and institutions) who are successful over a long period of time. In other words, cherry-pickers base their trading around the techniques and strategies of other investors. Anyone can implement a cherry-picking strategy. Indeed, cherry picking is used by both professional and retail investors alike. Cherry picking can be an effective way to generate

Care should be taken when drafting contracts so that the intention of the parties is set forth in a clear and unambiguous way. When contracts are clearly drafted, all parties should be aware of their rights, remedies and obligations thereunder. Further, the existence of clear and unambiguous contracts could streamline litigation if a dispute arises. The law is clear that “ hen the terms of a written contract are clear and unambiguous, the intent of the parties must be found

On June 14, 2021, this Blog wrote about FINRA’s fight against the financial exploitation of seniors and vulnerable adults ( here ), in particular, the effort to amend FINRA’s Rule 2165 (“Financial Exploitation of Specified Adults”). Among other things, Rule 2165 permits a member firm to place a temporary hold on the disbursement of funds or securities from the account of a senior or vulnerable adult customer when the member reasonably believes that financial exploitation may

As we have noted previously, the financial exploitation of seniors is a significant problem ( e.g. , here , here , here , here , and here ). For many regulators, it is a top priority. here.=">here</a>."> The Financial Industry Regulatory Authority, Inc. (“FINRA”) is one such regulator. To help combat the financial exploitation of seniors and vulnerable adults, FINRA enacted Rule 2165 (“Financial Exploitation of Specified Adults”) ( here ). Among other things, the rule p

This BLOG has written extensively on issues related to residential mortgage foreclosure including, but not limited to: the notice requirements of RPAPL 1304 < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE =">HERE</a>"> and < HERE =">HERE</a>"> ; the acceleration and deacceleration of mortgage debt < HERE =">HERE</a>"> and < HERE =">HERE</a>"> ; and, Article 15 of the RPAPL < HERE =">HERE</a>"> and

In P & HR Solutions, LLC v. Ram Capital Funding , LLC, 2021 N.Y. Slip Op. 03554 (1st Dept. June 8, 2021) ( here ), the Appellate Division, First Department was faced with the situation that is all too common in commercial litigation, plaintiffs trying to assert contract and fraud claims without differentiation. In fact, over the past few months, this Blog has written about numerous appellate cases in which the plaintiffs’ fraud claims were dismissed because they were indistin

On June 3, 2021, the New York Court of Appeals, the State’s highest court, handed down Himmelstein, McConnell, Gribben, Donoghue & Joseph, LLP v Matthew Bender & Co., Inc. , 2021 N.Y. Slip Op. 03485 (June 3, 2021) ( here ), a decision involving a claim under General Business Law § 349 (“GBL § 349”), New York’s consumer fraud statute. In a decision written by Judge Jenny Rivera, a majority of the Court made two rulings that will have an impact on future claims under the statut

It is an understatement to say that the impact of the COVID-19 pandemic on all aspects of life was far reaching. This Blog has written numerous articles specifically addressing the impact of COVID-19 on the New York court system and its litigants. Among others, < Here =">Here</a>"> , < Here =">Here</a>"> < Here =">Here</a>"> , < Here =">Here</a>"> , < Here =">Here</a>"> , < Here =">Here</a>"> , < Here =">Here</a>"> , < Here =">Here</a>"> , < Here =">Here</a>"> , < Here =">

Conversion is a tort that “takes place when someone, intentionally and without authority, assumes or exercises control over personal property belonging to someone else, interfering with that person’s right of possession.” Colavito v. New York Organ Donor Network, Inc. , 8 N.Y.3d 43, 49-50 (2006) (citation omitted). “In order to establish a cause of action to recover damages for conversion, the plaintiff must show legal ownership or an immediate superior right of possession

In today’s Fraud Notes, we examine Bullen v. CohnReznick, LLP (1st Dept. May 27, 2021) ( here ), and Sabourin v. Chodos , (1st Dept. May 27, 2021) ( here ), both decided by the Appellate Division, First Department. Bullen involved an alleged fraud in which CohnReznick was accused of being a participant through the issuance of audit reports that gave the entities being audited a clean bill of health – i.e. , the financial statements presented fairly, in all material respects

Sometimes a fraud is so undetectable that even an expert hired to assist in due diligence activities can be the victim of fraud. That’s what happened in VXI Lux Holdco, S.A.R.L. v. SIC Holdings, LLC , 2021 N.Y. Slip Op. 03294 (1st Dept. May 25, 2021) ( here ). VXI Lux arose from plaintiff’s $112 million purchase of Symbio S.A. (“Symbio”) from defendants. Plaintiff alleged that defendants, faced with a Chinese government audit, engaged in fraud to hide the fact that they had

As we have discussed in numerous posts, plaintiffs alleging breach of contract and fraud risk having the latter cause of action dismissed because it is duplicative of the former one. Plaintiffs can avoid this fate by alleging: a legal duty owed by the defendant that is separate and apart from the duty to perform under the contract or a duty that is collateral or extraneous to the contract; and damages that are different from the contract damages. In Principia Partners LLC v.

Frequently, individuals and entities (principals) act through agents to conduct business. When litigation arises from such business, the third parties with whom the agent interacted, often seek to hold the agent liable for any damages that are suffered. The law is clear that “an agent for a disclosed principal will not be personally bound unless there is clear and explicit evidence of the agent’s intention to substitute or superadd his personal liability for, or to, that of

The proliferation of cyber-events and cyber-enabled crime represents a significant threat to consumers and the financial services system. See FinCEN, Advisory to Financial Institutions on Cyber-Events and Cyber-Enabled Crime (October 25, 2016) ( here) . With today’s technology, the accessibility of the U.S. financial system “make financial institutions attractive targets to traditional criminals, cybercriminals, terrorists, and state actors.” Id. These bad actors target th

Readers of this Blog know that to state a cause of action for fraudulent inducement, the complaint must allege “that the defendant intentionally made a material misrepresentation of fact in order to defraud or mislead the plaintiff, and that the plaintiff reasonably relied on the misrepresentation and suffered damages as a result.” Connaughton v. Chipotle Mexican Grill, Inc. , 135 A.D.3d 535, 537 (1st Dept. 2016), aff’d , 29 N.Y.3d 137 (2017) (citations omitted). Significantl

This Blog frequently highlights cases analyzing the viability of fraud claims when contract claims are also made. See, e.g., < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> . In Michael Davis Construction, Inc. v. 129 Parsonage Lane, LLC , decided on May 12, 2021, the Second Department dismissed defendant’s negligent construction counterclaim as duplicative of its breach of contract coun