By: Jeffrey Haber Section 3211(a)(8) of the Civil Practice Law and Rule (“CPLR”) allows a party to “move for judgment dismissing one or more causes of action asserted against him on the ground that … the court has not jurisdiction of the person of the defendant.” Whether the court has personal jurisdiction over a non-domiciliary involves a two-part inquiry: (1) the exercise of jurisdiction must be permissible under New York’s long-arm statute; and (2) the exercise of jurisd

Query: does the recipient of an assignment via a contract or a note automatically have the right to assert tort claims, including fraud claims, arising from that contract or note? In SureFire Dividend Capture, LP v. Industrial & Commercial Bank of China Financial Services LLC , 2023 N.Y. Slip Op. 02841 (1st Dept. May 25, 2023) ( here ), the Appellate Division, First Department answered the question in the negative. The reason, as one would expect, depends on the language used

By: Jeffrey Haber Commercial contracts typically include a liquidated damages provision that allows for the payment of a predetermined amount of damages in the event of a breach by one of the parties. Courts will sustain such a provision if the liquidated amount is reasonably proportionate to the probable loss and the amount of actual loss is incapable or difficult of precise estimation. If, however, the amount fixed is grossly disproportionate to the probable loss, then the

By Jonathan H. Freiberger The question of when parties must close title on a real estate transaction is often answered by another question – has either party sent a “time of the essence” letter? [Eds. Note: this Blog has previously addressed “time of the essence” letters < here =">here</a>"> .] The law is settled that when “a contract for the sale of real property does not make time of the essence, the law permits a reasonable time in which to tender performance, regardless

By: Jeffrey M. Haber This Blog has previously written about the benefits of forming a corporation or a limited liability corporation and the perils of ignoring the corporate formalities that are attendant thereto ( see , e.g. , here , here , here , here , and here ). In today’s article, we examine the alleged use of the corporate entity to commit a wrong on another and the court’s unwillingness to pierce the corporate veil to hold the owner personally liable for that wrongful

By: Jeffrey M. Haber To plead a fraud cause of action, a plaintiff must allege: (1) a misrepresentation of material fact; (2) falsity; (3) scienter; (4) justifiable reliance; and (5) damages. 1 Each element of the claim must be satisfied for the plaintiff to prevail on the cause of action. The failure to satisfy each element will result in dismissal of the claim. In Hayes v. Martinez , 2023 N.Y. Slip Op. 02587 (1st Dept. May 11, 2023) ( here ), the Appellate Division, First

By Jonathan H. Freiberger This Blog has previously discussed issues related to whether a binding agreement (a settlement agreement or otherwise) was formed by parties to a dispute. See, e.g. , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> and < here =">here</a>"> . In our prior articles we discussed, inter alia , the elements of contract formation and whether emails suffice to satisfy signing requirements. Such issues were releva

By Jonathan H. Freiberger Pursuant to CPLR 3014 , inter alia , “ copy of any writing which is attached to a pleading is part thereof for all purposes.” Where “a copy of the agreement is annexed to and made a part of the complaint, the rights and duties of the parties must be determined by the terms of the contract annexed to the complaint, and not by the plaintiff’s characterization or construction thereof in his pleading he rights of the parties thereunder must be determin

By: Jeffrey M. Haber In past articles, we have examined a motion for summary judgment in lieu of a complaint under CPLR § 3213 ( see , e.g. , here , here , here , here , and here ). Today, we take another look at this statute by examining BBM3, LLC v. Vosotas , 2023 N.Y. Slip Op. 02279 (1st Dept. May 2, 2023) ( here ), a case involving an unconditional guaranty of payment. CPLR § 3213 Pursuant to CPLR § 3213, “ hen an action is based upon an instrument for the payment o