Previously, this Blog has written about the difficulties a party encounters when trying to vacate an arbitral award. ( E.g. , here , here and here .) Indeed, courts are very reluctant to disturb the decision of an arbitrator. The cases show that the courts limit vacatur of an arbitral award to a very narrow set of statutory and judicially created reasons. As shown in Matter of Nexia Health Tech., Inc. v. Miratech, Inc. , 2019 N.Y. Slip Op. 07701 (1st Dept. Oct. 24, 2019) (

There has been a lot of litigation regarding an out of possession landlord’s tort liability to third parties. Generally, an out of possession landlord “is not liable for injuries resulting from the condition of the demised premises….” Henry v. Hamilton Equities, Inc. (Ct Appeals October 24, 2019). An exception exists where “the landlord covenants in the lease or otherwise to keep the land in repair.” Henry (citing , Putnam v. Stout , 38 N.Y.2d 607 (1976)) (internal quot

It is well settled that parties are free to contractually shorten a limitations period as long as their intent to do so is clearly stated and the time period is reasonable. Whitney Lane Holdings, LLC v. Don Realty, LLC , 159 A.D.3d 1163, 1165 (3d Dept. Mar. 8, 2018); John J. Kassner & Co. v. City of New York , 46 N.Y.2d 544, 550-551 (1979); see also CPLR 201, 213. But what is reasonable? As one might think, the answer to the question depends upon the facts and circumstances

To assert a fraud claim, a plaintiff must allege “a misrepresentation or a material omission of fact which was false and known to be false by defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury.” Mandarin Trading Ltd. v. Wildenstein , 16 N.Y.3d 173, 178 (2011) (internal quotation marks and citation omitted); Lama Holding Co. v Smith Barney , 88 N.Y.2d 413

Under the present “commencement by filing” system, an action (or proceeding) (collectively, an “Action”) is commenced by filing ( CPLR 304 (a))the initiatory paper(s) with the “clerk of the court in the county in which the ction … is brought or any other person designated by the clerk of the court for that purpose (CPLR 304(c)). Once an Action is commenced, the plaintiff (or petitioner) (collectively, a “Plaintiff”) must effectuate service of process pursuant to the paramete

Melville, NY ( Law Firm Newswire ) October 23, 2019 - Freiberger Haber LLP is pleased to announce that co-founding partner, Jeffrey M. Haber, has been named by Super Lawyers magazine to be among the top lawyers in the New York metropolitan area for the eighth consecutive year. Mr. Haber was recognized for his work in business litigation. As part of his history of professional achievements, he was also recognized as a Super Lawyer in 2008-2010 and 2012-2019. Super Lawyers Mag

Stenographic services are an important part of any litigation. After all, deposition and trial testimony must be recorded, as they are part of the record. Typically, the attorney noticing the testimony retains the court reporter and commits to be directly responsible for the costs of the services. In some states, such as New York, the attorney is legally responsible (by rule, regulation or statute) for the stenographer’s fees, unless specifically disclaimed in writing. Ther

Purchasing real estate, a new home for example, is an expensive proposition. It is rare that a new home buyer has enough cash on hand to make the purchase. Therefore, it is typical for such a purchaser to seek mortgage financing to fund the purchase. For this very reason, a real estate buyer would be reluctant to enter into a contract for the purchase of real estate without the ability to cancel the contract if a lender declines the purchaser’s application for purchase mon

Readers of this Blog know that, as a general matter, New York courts will not permit a tort claim to survive a motion to dismiss when the claim arises from a breach of contract. here).=">here</a>)."> Indeed, courts routinely dismiss a tort 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 382 (1987). Howeve

In today’s commercial world, businesses claiming breach of an agreement often seek lost profits resulting from the breach. The hurdle that the plaintiff must overcome when seeking such relief, however, can be high. As discussed below, the reason has to do with the type of damages sought and the applicable standard of proof. There are two types of damages recoverable as lost profits: (1) lost profits that are general damages; and (2) lost profits that are consequential or spe

In Pari Delicto, the Adverse Interest Exception and the Alleged Failure to Uncover Fraudulent Activity The doctrine of in pari delicto has been a part of the common law for at least two centuries. Kirschner v. KPMG LLP , 15 N.Y.3d 446 (2010), citing Woodworth v. Janes , 2 Johns Cas 417, 423 (N.Y. 1800) (parties in equal fault have no rights in equity); Sebring v. Rathbun , 1 Johns Cas 331, 332 (N.Y. 1800) (where both parties are equally culpable, courts will not “interpose

Specific Performance is an equitable remedy used to compel a party to perform under a contract. McGinnis v. Cowhey , 24 A.D.3d 629 (2 nd Dep’t 2005). Specific Performance is frequently used to enforce a party’s rights under real estate contracts. In EMF General Contracting Corp. v. Bisbee , 6 A.D.3d 45 (2004), the First Department set forth the elements of a specific performance claim: The elements of a cause of action for specific performance of a contract are that the p

It is not uncommon for a client to claim that he/she had an agreement with another based on oral representations that were not memorialized in the writing between them. The question for practitioners and the courts is whether the oral assurances constitute a binding agreement. In LiTrenta v. Chappaqua Cent. Sch. Dist. , 2019 N.Y. Slip Op. 51556(U) (Sup. Ct., Westchester County Oct. 4, 2019) ( here ), the Court answered the question in the negative. LiTrenta involved an actio

The Foreign Corrupt Practices Act (“FCPA”) requires issuers to “devise and maintain a system of internal accounting controls sufficient to provide reasonable assurances that” all transactions are “executed” and “recorded … to permit preparation of financial statements in conformity with generally accepted accounting principles or any other criteria applicable to such statements, and … to maintain accountability for assets.” 15 U.S.C. §§ 78m(b)(2)(B). As discussed below, com

In New York, to plead (and prove) a fraud claim, a plaintiff must demonstrate the following: “a misrepresentation or a material omission of fact which was false and known to be false by the defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury.” Pasternack v. Laboratory Corp. of Am. Holdings , 27 N.Y.3d 817, 827 (2016) (internal citations and quotation mark

This Blog has previously addressed issues surrounding various evidentiary issues faced by foreclosing mortgage lenders, among others, in proving their prima facie case on summary judgment. < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE =">HERE</a>"> and < HERE =">HERE</a>"> . On September 25, 2019, the Appellate Division, Second Department, in JPMorgan Chase Bank v. Grennan , yet again analyzed the sufficiency of the foreclosing lender’s evidence submitted on its moti

The title of this post comes from the observation Justice Saliann Scarpulla made in Jobar Holding Corp. v. Halio , 2019 N.Y. Slip Op. 32813(U) (Sup. Ct., N.Y. County Sept. 23, 2019) ( here ), wherein she was asked to decide a motion to dismiss a complaint that asserted both direct and derivative claims. As discussed below, because, among other things, the complaint “mingled” the direct and derivative claims and otherwise failed to differentiate between the causes of action,

On September 19, 2013, Andrew Ceresney, then Co-Director of the Division of Enforcement of the Securities and Exchange Commission (“SEC” or the “Commission”), told an audience attending a continuing legal education program at the American Law Institute in Washington, D.C. about the importance of pursuing those who commit financial and accounting fraud (here). Comprehensive, accurate and reliable financial reporting is the bedrock upon which our markets are based because fals