A shareholder’s derivative action is a lawsuit “brought in the right of a … corporation to procure a judgment in its favor, by a holder of shares or of voting trust certificates of the corporation or of a beneficial interest in such shares or certificates.” Marx v. Akers , 88 N.Y.2d 189, 193 (1996) (quoting Business Corporation Law § 626 (a)). Derivative claims against corporate officers and directors belong to the corporation itself. Auerbach v. Bennett , 47 N.Y.2d 619, 631

Every now and then, we come across a legal principle that we do not frequently write about. One such principle is replevin. A plaintiff brings an action in replevin to recover personal property that was wrongfully taken or withheld. Pivar v. Graduate School of Figurative Art , 290 A.D.2d 212, 212 (1st Dept. 2002) (citations omitted). In a replevin action, the plaintiff seeks the return of property, not money damages. Genger v. Genger , 2016 N.Y. Slip Op. 30602 (Sup. Ct., N.Y.

We have noted in prior posts that vacating an arbitration award is very difficult. See , e.g. , here and here . There are a number of bases upon which a movant can seek to vacate an arbitral award. See , e.g. , CPLR § 7511(b). Two such bases are the arbitrator exceeded his/her authority and the arbitrator manifestly disregarded the law. Under CPLR § 7511 (b) (1) (iii) – vacatur on the basis that the arbitrator exceeded his/her power or so imperfectly executed it – a court wi

In keeping with this BLOG’s efforts to keep abreast of court practices and procedures promulgated to address COVID-19 concerns, practitioners should be aware of new foreclosure sale scheduling rules. By way of background, on July 24, 2020, Chief Administrative Judge Lawrence K. Marks issued Administrative Order 157/20 (“AO 157/20”) < HERE =">HERE</a>"> , which became effective on July 27, 2020 and established certain “procedures and protocols apply to the conduct of resident

In order for the conduct of business to proceed in an orderly fashion, folks need to be confident that, in general, the contracts that they enter into, particularly when “the parties set down their agreements in a clear, complete document” will “be enforced according to terms”. 159 MP Corp. v. Redbridge Bedford, LLC , 33 N.Y.3d 353, 358 (2019) (citations and internal quotation marks omitted). This is consistent with the notion that “ n New York, agreements negotiated at ar

Attorneys are often asked whether an agreement that is not formally reduced to writing or not in writing at all is enforceable. Most will say that the answer depends on the surrounding facts and circumstances. Since the question often arises in the context of a contract dispute, it is helpful to examine the legal principles that guide the determination of contract enforceability. The elements of a cause of action for breach of contract are (1) the formation of an agreement,

As we have noted, 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>."> FINRA is one such regulator. To help combat the financial exploitation of seniors, FINRA enacted Rule 2165 (“Financial Exploitation of Specified Adults”) ( here ). Among other things, the rule permits a member firm to place a temporary hold on the disbursement of funds or securities fr

“Pursuant to the doctrine of respondeat superior, an employer can be held vicariously liable for torts committed by an employee acting within the scope of employment.” Horvath v. L&B Gardens, Inc. , 89 A.D.3d 803 (2 nd Dep’t 2011) (citations omitted). “An act is considered to be within the scope of employment if it is performed while the employee is engaged generally in the business of his employer, or if his act may be reasonably said to be necessary or incidental to such

Arbitration is an alternative form of dispute resolution where the parties voluntarily agree that a neutral, private person will resolve any legal disputes between them, instead of a judge or jury in a court of law. Rent-A-Ctr., W, Inc. v. Jackson , 561 U.S. 63, 67 (2010) (noting that “arbitration is a matter of contract”); Matter of Long Is. Power Auth. Hurricane Sandy Litig. , 165 A.D.3d 1138, 1141 (2d Dept. 2018). In business and commercial transactions, arbitration is the

Under New York law, a party commences a civil action by filing a summons and complaint. Generally speaking, these documents set forth the claims that are being asserted against the defendant(s). Typically, though not required in all instances, the plaintiff will verify the complaint. “A verification is a statement under oath that the pleading is true to the knowledge of the deponent .…” CPLR § 3020 (a). The verification makes the pleading sworn and, therefore, is the equivale

Whistleblowers often risk career and reputation to report fraud or other illegal conduct. In 2010, Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”) to, among other things, promote compliance with the federal securities laws. The Dodd-Frank Act contains whistleblower provisions that authorize the Securities and Exchange Commission (“SEC” or “Commission”) to pay cash rewards to whistleblowers who voluntarily provide the SEC wi

In looking at the causes of action asserted in Kocak v. Dargin , 2020 N.Y. Slip Op. 33121(U) (Sup. Ct., N.Y. County Sept. 23, 2020) ( here ), one could walk away with the impression that the claims are disparate and lacking cohesion – breach of fiduciary, fraudulent transfers and corporate dissolution. However, when the facts and evidence in Kocak are considered, a common theme emerges: the alleged actions taken by the majority shareholder of the corporation oppressed the ri

“A promissory note is a financial instrument that contains a written promise by one party (the note’s issuer or maker) to pay another party (the note’s payee) a definite sum of money, either on demand or at a specified future date. See Investopedia, Adam Barone, Apr. 20, 2020 ( here ). “A promissory note typically contains all the terms pertaining to the indebtedness, such as the principal amount, interest rate, maturity date, date and place of issuance, and issuer's signatu

After being served with a summons and complaint in a lawsuit, a defendant generally appears and serves an answer or makes a motion seeking to dismiss some or all of the complaint. Defendant’s formal appearance in an action is governed by CPLR 320 . This Blog has addressed formal and informal appearances < HERE =">HERE</a>"> . If a defendant fails to appear in an action, among other things, a plaintiff can seek from the Court, a default judgment pursuant to CPLR 3215 . If p

A threshold question for litigants is whether the court can exercise personal jurisdiction over the defendant. After all, a court cannot issue a valid and binding judgment without possessing such jurisdiction. Assuming the court can exercise such jurisdiction, the next issue to consider is service of process. The Civil Practice Law and Rules (“CPLR”) govern the methods and manner of service in cases filed in the courts of New York. Where a corporation is a defendant, the Busi

Over the years, this Blog has addressed numerous issues involving mortgage foreclosures in New York. < 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 =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE =">HER

The term “digital asset” or “digital token” generally refers to an asset that is issued and transferred using distributed ledger or blockchain technology, including “cryptocurrencies,” “coins,” and “tokens.” A blockchain or distributed ledger is a peer-to-peer database spread across a network, that records all transactions in theoretically unchangeable, digitally recorded data packages. The system relies on cryptographic techniques for secure recording of transactions. Blockc

Under CPLR § 3101, New York State’s procedural rule governing disclosure of documents and information, “there shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” The rule applies to parties and non-parties alike. A question often arises as to whether the documents and information at issue are “material and necessary” (often interpreted as relevant) to the action. Courts in New York inter