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By: Jeffrey M. Haber In past articles, we have noted the importance of identifying the statements claimed to be false and misleading. In this regard, we talked about the need to plead the who, what, where, when and how of the alleged fraud. In other words, the plaintiff must allege the first paragraph of any newspaper story. The reason for such pleading is to satisfy the particularity requirement of CPLR § 3016(b).  Under CPLR § 3016(b), a plaintiff alleging fraud must provid

By Jonathan H. Freiberger For any number of reasons, a party asserting a claim or claims in a litigation may decide that it no loner wishes to pursue them.  In such a case, CPLR 3217 outlines the manner in which claims, depending on the stage of litigation, may be discontinued.  Among others, an action can be discontinued without a court order: “by serving upon all parties to the action a notice of discontinuance at any time before a responsive pleading is served or, if no r

By Jonathan H. Freiberger In general, to “establish prima facie entitlement to judgment as a matter of law in an action to foreclose a mortgage, a plaintiff must produce the mortgage, the unpaid note, and evidence of default.”  M&T Bank v. Barter , 186 A.D.3d 698, 799 (2 nd Dep’t 2020) (citations omitted).  As readers of this Blog know, depending on the defenses raised in borrower’s answer, lender may be required to submit additional proof to meet its prima facie case.  See,

Financial statements provide important information about a corporation’s financial health. 1 They give insight into the corporation’s operations, cash flow, and overall financial condition. 2 Investors and shareholders use financial statements to make decisions about whether to purchase the securities of a corporation and, once purchased, the performance of their investment. 3 Given the importance of accurate financial statements to the decision-making process of investors

By Jonathan H. Freiberger A notice of pendency is a provisional remedy available to litigants seeking a judgment that affects title to real property.  5303 Realty Corp. v. O&Y Equity Corp. , 64 N.Y.2d 313 (1984).  The rules concerning notices of pendency are found in Article 65 of the CPLR.  As the name suggests, a notice of pendency puts the world on constructive notice that an action has been commenced that may affect the title to the property and, accordingly, “ person w

By: Jeffrey M. Haber It is well-settled that a plaintiff asserting a derivative claim seeks to recover for injury to the business entity. A plaintiff asserting a direct claim seeks redress for injury to himself/herself individually. “The distinction between derivative and direct claims is grounded upon the principle that a stockholder does not have an individual cause of action that derives from harm done to the corporation but may bring a direct claim when the wrongdoer has

By: Jeffrey M. Haber One of the elements of a fraud claim that plaintiffs have difficulty satisfying is justifiable reliance. As evident from the reported decisions, the justifiable reliance element is most often used by defendants to secure dismissal of the claim against them. In LIK Hospitality LLC v. Otway , 2022 N.Y. Slip Op. 32979(U) (Sup. Ct., N.Y. County Aug. 31, 2022) ( here ), a case involving claims of, inter alia , fraudulent inducement, the justifiable reliance el

By: Jeffrey M. Haber Sometimes, a plaintiff will find it difficult to serve a defendant with process. There can be many reasons for such difficulties. Avoidance is one such reason. After all, no one wants to be sued. When a defendant tries to avoid service, a plaintiff may request permission from the court to serve the defendant using alternative means, such as service by publication. That was the situation in Big Yuk Chiu v. Louzon , 2022 N.Y. Slip Op. 32941(U) (Sup. Ct., N.

By: Jeffrey M. Haber On August 26, 2022, the Securities and Exchange Commission (“SEC” or “Commission”) announced ( here ) that it adopted two amendments to the rules governing its whistleblower program. The first rule change allows the Commission to pay whistleblowers for their information and assistance in connection with non-SEC actions in certain circumstances. The second rule affirms the Commission’s authority to consider the dollar amount of a potential award for the l