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By Jonathan H. Freiberger In most situations, the contemplated goal of a mortgage foreclosure action is the sale of the subject property at public auction pursuant to a judgment of foreclosure and sale.  Once a sale occurs, however, can it be set aside?  “A court has the inherent power to ensure that a sale conducted pursuant to a judgment of foreclosure is not made an instrument of injustice in the exercise of its equitable powers, has the discretion to set aside a judicia

By: Jeffrey M. Haber Most litigants think that financial documents, such as tax returns, are confidential. The same is true with regard to trade secrets and other proprietary business information. While those sentiments are most often true, as discussed below, litigants are, nevertheless, often surprised to learn that there are well-developed rules governing the protection of such information from public view.  “Under New York law, there is a broad presumption that the public

By: Jeffrey M. Haber In 1990, Congress created the EB-5 Immigrant Investor Visa Program (“EB-5 Program”) to stimulate the U.S. economy through job creation and capital investment by foreign investors. The EB-5 Program offers foreign investors and members of their family an opportunity to obtain permanent residence in the United States ( i.e. , obtain a green card) and provides a source of financing for developers to use in, among other things, construction and business projec

By Jonathan H. Freiberger On July 12, 2023, the Appellate Division, Second Department, in U.S. Bank Trust, N.A. v. Rahman , addressed an issue that has been confusing lawyers for quite some time involving 22 N.Y.C.R.R. §202.48 – “Submission of orders, judgments and decrees for signature” , which provides, in relevant part: (a) Proposed orders or judgments, with proof of service on all parties where the order is directed to be settled or submitted on notice, must be submitted

By: Jeffrey M. Haber Under New York law, there are two methods by which a person can domesticate a foreign judgment – i.e. , a judgment obtained outside the State of New York. The first method is contained in Article 54 of the Civil Practice Law and Rules (“CPLR”), which codified the Uniform Enforcement of Foreign Judgments Act. Under CPLR § 5402(a), to recognize a foreign judgment, a judgment creditor must: (1) file the foreign judgment within 90 days of the date of the judg

By: Jeffrey M. Haber On October 8, 1971, ABC aired an episode of The Brady Bunch, titled “The Wheeler-Dealer”. In the episode, Greg gets his driver’s license and wants to buy a car of his own. He gets snookered by a friend into buying a lemon for $100. When Greg complains to Mike about how he was conned into the deal, Mike expresses little sympathy and instead gives Greg a lesson on salesmen and the caveat emptor doctrine. The common law doctrine of caveat emptor is a well-ac

By Jonathan H. Freiberger Folks sign contracts of all types that purport to contain limitations of liability; but are they enforceable.  In many cases, the answer is “yes”.  “In the absence of a contravening public policy, exculpatory provisions in a contract, purporting to insulate one of the parties from liability resulting from the party’s own negligence, although disfavored by the law and closely scrutinized by the courts, generally are enforced, subject however to variou

By: Jeffrey M. Haber The voluntary payment doctrine bars recovery of payments voluntarily made with full knowledge of the facts, and in the absence of fraud or material mistake of fact or law. 1 Notably, there is a presumption that payments are voluntary. 2 Thus, to rebut the presumption, the plaintiff must show that he/she protested the payment. In order for a protest to be effective, it must be in writing and made at the time of payment. 3 In addition, the written protest

By: Jeffrey M. Haber Under the law, the perpetration of a fraud can be the great equalizer between winning and losing a case. For example, a court may relieve a party from the effects of a judgment against it upon, among other things, proof that the judgment was the result of the fraud, misrepresentation, or misconduct by an adverse party. Similarly, a court may exercise its inherent power over its judgments to relieve a party from a judgment obtained through, among other th