By Jonathan H. Freiberger This Blog has frequently addressed the interplay between document discovery in litigation and the repercussions resulting from the spoliation of evidence. [ See, e.g., < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> and < here =">here</a>"> .] “Spoliation” refers to evidence that is “destroyed” “substantially altered” or “lost”. See, e.g., Gilliam v. Uni Holdings , 201 A.D.3d 83, 86 (1 st Dep’t 2021); D

By: Jeffrey M. Haber To establish a cause of action for fraud, a plaintiff must plead a material misrepresentation of a fact, knowledge of its falsity, an intent to induce reliance, justifiable reliance and damages. 1 In Pope Investments II LLC v. Belmont Partners, LLC , Case No. 2022-02632 (1st Dept. Mar. 14, 2023) ( here ), and RCM/CMG Portfolio Holding, LLC v. Giordano , Case No. 2021-03254 (1st Dept. Mar. 14, 2020) ( here ), the Appellate Division, First Department addre

By: Jeffrey M. Haber Section 1104 of the Business Corporation Law (“BCL”) grants a court the power to order the dissolution of a corporation “when the holders of shares representing one-half of the votes of all outstanding shares of a corporation entitled to vote in an election of directors,” 1 establish that “the directors are so divided respecting the management of the corporation’s affairs that the votes required for action by the board cannot be obtained”, 2 or that “th

By: Jeffrey M. Haber In Standlee Premium Prods, LLC v. WGST, Inc. , 2023 N.Y. Slip Op. 30625(U) (Sup. Ct., N.Y. County Mar. 2, 2023) ( here ), the court addressed three topics that we often write about: fraudulent inducement, fraudulent conveyance and GBL § 349. As to the former, the issue before the court was whether defendants made a material misstatement of present fact – i.e. , whether defendants misrepresented their present intention to perform under the agreements know

By: Jeffrey M. Haber It is not often that we examine a case involving a cause of action for champerty. The last time we did so was on April 23, 2021 ( here ). We also examined the champerty doctrine in 2020 ( here ) and 2016 ( here ). But what is champerty? Simply, champerty is the prohibited practice of purchasing claims for the purpose of commencing litigation. New York’s prohibition against champertous transactions is codified in Section 489 of the Judiciary Law, which pr

By: Jeffrey M. Haber The Securities Exchange Act of 1934 (“Exchange Act”) governs the way in which the securities markets and its brokers and dealers operate. Under the Exchange Act, most “brokers” and “dealers” must register with the Securities and Exchange Commission (“SEC” or the “Commission”) and join a “self-regulatory organization,” or SRO. Section 15(a)(1) of the Exchange Act, 15 U.S.C. §78o(a). Under Section 3(a)(4)(A) of the Exchange Act, 15 U.S.C. §78c(a)(4)(A), a b

By: Jeffrey M. Haber In 228 W. 72 LLC v. 228A W. 72 LLC , 2023 N.Y. Slip Op. 01057 (1st Dept. Feb. 28, 2023) ( here ), the Appellate Division, First Department dismissed a fraudulent inducement claim because the facts allegedly concealed were publicly available. We examine 228 W. 72 LLC below. 228 W. 72 involved the purchase of real property (the “Premises”) by Plaintiff, 228 W. 72 LLC (“Plaintiff”), from Defendant, 228A W. 72 LLC (“Defendant”). Among other things, the con

By: Jeffrey M. Haber The law reporters are brimming with cases in which a plaintiff seeks relief from a defendant for the failure to make a payment that is due and owing. The scenarios in which this fact pattern occurs are too many to recite here. As the reader might expect, plaintiffs do not always retain the invoice or other similar writing. Nevertheless, they seek relief, claiming that alternative evidence, such as an email, suffices to demonstrate that the defendant owes

By Jonathan H. Freiberger Many times, multiple actions are pending that involve similar facts and/or legal issues. In such instances it may be appropriate to consolidate those actions pursuant to CPLR 602(a) , which provides that “ hen actions involving a common question of law or fact are pending before a court, the court, upon motion, may order a joint trial of any or all the matters in issue, may order the actions consolidated, and may make such other orders concerning pr