It goes without saying that the spread of the coronavirus is accelerating across the country. As noted in the lead paragraph of an article posted in yesterday’s online version of the Washington Post, titled “U.S. Surpasses 15 million Coronavirus Cases as Spread Accelerates” ( here ): It took about 100 days for the United States to record its first 1 million coronavirus cases, and 44 more passed before the country topped 2 million. But now, in the middle of the most severe su

In prior articles, we have examined enforcement actions (and settlements thereof) brought by the Securities and Exchange Commission (“SEC” or “Commission”) involving false statements about the subject companies and COVID-19. (E.g., here.) Those actions involved micro-cap companies and the products they claimed to offer to address the pandemic. As we noted in those articles, there was a common thread between the actions – they involved pump and dump schemes in which the compan

Sometimes the Court renders a decision on a motion instead of issuing an order or judgment. In such cases it is often up to the prevailing litigant to take an additional step to effectuate the decision. In cases where Rule 202.48 of the Uniform Civil Rules for the Supreme Court and the County Court is applicable the prevailing party must move quickly or run the risk of losing the benefit of a coveted victory.

“A cause of action for fraud does not arise when the only fraud charged relates to a breach of contract.” Krantz v. Chateau Stores of Can. Ltd. , 256 A.D.2d 186, 187 (1st Dept. 1998) (citations omitted). “To plead a viable cause of action for fraud arising out of a contractual relationship, the plaintiff must allege a breach of duty which is collateral or extraneous to the contract between the parties.” Id. (citations and quotation marks omitted). One way to satisfy this re

In Trustees of Columbia Univ. in the City of N.Y. v. D’Agostino Supermarkets, Inc. , 2020 N.Y. Slip Op. 06937 (Nov. 24, 2020) ( here ), the New York Court of Appeals was asked to “consider the propriety of a liquidated damages provision in a Surrender Agreement between two New York City icons: Columbia University, one of the City’s premier universities, and D’Agostino Supermarkets, a family-owned food market chain founded in 1932.” Slip Op. at *1. D’Agostino had leased proper

Hang on Sloopy was a hit song in the mid-1960s. Years later, the band that performed and recorded the song – the McCoys – claimed that they were cheated out of substantial sums of money due to fraud. That claim, however, was time-barred, held the Court in Derringer v F.G.G. Prods. Inc. , 2020 N.Y. Slip Op. 33854(U) (Sup. Ct., N.Y. County Nov. 18, 2020) ( here ). Fraud claims must be commenced within “the greater of six years from the date the cause of action accrued or two ye

Sometimes, a case involves facts and circumstances that, on their face, lead a court to determine that a fraud was committed. Such was the case in First Franklin Fin. Corp. v. Merchant , 2020 N.Y. Slip Op. 06852 (1st Dept. Nov. 19, 2020) ( here ). In First Franklin , a judgment debtor transferred property subject to a foreclosure sale to a company that he had formed all on the same day. Such facts and circumstances, said the lower court, represented “badges of fraud” under f

On November 4, 2020, this Blog (the “November 4 Blog”) provided an update on the New York State Court system’s preparation for the anticipated surge in COVID-19 cases. On November 18, 2020, Andrew A. Crecca, the District Administrative Judge for the 10 th Judicial District (Suffolk County), circulated a memorandum on “Suffolk County Updated Operating Protocols <“the plan”> Effective November 23, 2020” (the “Memorandum”). As noted in the November 4 Blog, “the country has

Brokerage firms, financial institutions and investment advisers are required to provide suitable investment recommendations and strategies to a customer that are consistent with the customer’s investment objectives, risk tolerance and financial needs. See, e.g., here and here (FINRA Rule 2111). This requirement is based on the “know your customer” rule (here (FINRA Rule 2090)), which requires brokerage firms, financial institutions and investment professionals to be aware of

On April 4, 2020, the New York Uniform Voidable Transactions Act (“NYUVTA”) became effective, replacing Article 10, Sections 270-281 of the Debtor and Creditor Law (“DCL”), the State’s almost century-old fraudulent conveyance law. In February of this year, this Blog examined the NYUVTA, the DCL and the changes the NYUVTA made to the DCL ( here ). Since the NYUVTA applies to cases filed on or after April 4, 2020, there remain many cases under the former DCL that are being li

This BLOG has previously addressed issues related to Statutes of Limitations. See, among many others, < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , and < HERE =">HERE</a>"> . Earlier this year, this BLOG posted “ Revive A Time-Barred Claim Using § 17-101 of New York’s General Obligations Law ”, in which, in addition tothe renewal of expired Statutes of Limitation under GOL § 17–101, the purpose and history of Statutes of Limitation was addressed. St

A “recurring question” courts in New York grapple with is whether the facts alleged in a complaint give rise to sustainable claims for both breach of contract and fraudulent inducement. Cronos Grp. v. XComIP, LLC , 156 A.D.3d 54, 56 (1st Dept. 2017). Readers of this Blog know that a fraud claim, which “ar from the same facts , s identical damages and d not allege a breach of any duty collateral to or independent of the parties’ agreements<,> is subject to dismissal as red

Disputes between an insured and insurer occur all the time. These disputes often concern whether the policy covers a certain event. Sometimes, as in AB Oil Servs., Ltd. v. TCE Ins. Servs., Inc. , 2020 N.Y. Slip Op. 06232 (2d Dept. Nov. 4, 2020) ( here ), the dispute concerns the alleged failure to satisfy a specific request for coverage not already provided in one’s policy. Other times, the dispute concerns alleged fraud and negligent misrepresentation ( i.e. , breach of a du

CPLR 3215(c) , which encourages the prompt entry of default judgments, provides: If the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed.  A motion by the defendant under this subdivision does not constitute an appearance i

Anyone reading the newspapers or watching television knows that in the past few weeks the country has seen a surge in new coronavirus cases. As reported in the news media ( e.g. , here ), “ ighteen states have broken daily records for new cases in the past week and hospitalizations are up in 43 states.” According to Johns Hopkins University, there are more than 9.2 million coronavirus cases and more than 231,000 deaths since the start of the pandemic. Recognizing the risks

Melville, NY (Law Firm Newswire) November 2, 2020 – 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 first year and Mr. Haber’s ninth consecutive year of selection. Both Messrs. Freiberger and Haber were recognized for their work in business litigation. “I am honored to be named to

As readers of the Blog know, when it comes to fraud-based actions, we like to write about them. While many of the cases we examine fall into similar patterns, sometimes a case deviates from the norm. King Penguin Opportunity Fund III, LLC v. Spectrum Group Mgt. LLC , 2020 N.Y. Slip Op. 06230 (1st Dept. Oct. 29, 2020) ( here ), is such as case. King Penguin concerned, among other claims, a fraudulent inducement claim arising from the execution of a term sheet for a proposed l

Readers of this Blog know that, as a general matter, New York courts will not permit a fraud-based claim ( i.e. , fraudulent inducement) to survive a motion to dismiss when the claim arises from a breach of contract. Indeed, courts routinely dismiss a fraud claim where “ he existence of a valid and enforceable written contract govern a particular subject matter” and the recovery sought arises out of the same facts and circumstances. Clark-Fitzpatrick v. Long Is. , 70 N.Y.2d