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By: Jeffrey M. Haber In Wilsey v. 7203 Rawson Rd., LLC , 2022 N.Y. Slip Op. 02905 (4th Dept. Apr. 29, 2022) ( here ), the Appellate Division, Fourth Department considered principles of law familiar to readers of this Blog; namely, breach of contract and fraudulent misrepresentation.   As we have noted in prior articles ( e.g. , here ), “ he essential elements of a cause of action to recover damages for breach of contract are the existence of a contract, the plaintiff’s perfor

By Jonathan H. Freiberger Statute of limitations issues frequently arises in mortgage foreclosure actions.  This Blog has written extensively on a variety of issues related to mortgage foreclosure, including those related specifically to limitations periods ( see, e.g., < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> and < here =">here</a>"> .   In this Blog article entitled: “ Revive a Time-Barred Claim Using § 17-101 of New York’s General Obligations La

By: Jeffrey M. Haber New York courts favor the enforcement of forum selection clauses. They do so because they provide certainty and predictability in the resolution of disputes.  here=">here</a>" and="and" >here.=">here</a>."> A forum selection clause is “prima facie valid and enforceable unless it is shown by the challenging party to be unreasonable, unjust, in contravention of public policy, invalid due to fraud or overreaching.” Because a forum selection clause is “prima

By:  Jeffrey M. Haber Since inception of this Blog, we have written about many types of fraud, such as affinity fraud, common law fraud, fraud in the inducement, fraudulent concealment, and securities fraud.  Until today, we have not directly examined fraud in the execution. 1 Fraud in the execution, or fraud in the factum, arises where a party did not know the nature or the contents of the document being signed, or the consequences of signing it, and was nonetheless misled i

By Jonathan H. Freiberger The readers of this Blog know that we frequently discuss numerous aspects of residential mortgage litigation.  S ee, e.g., < here =">here</a>"> and the articles linked therein.  A related subtopic that gets much attention in this Blog is the pre-foreclosure notice requirements of RPAPL 1304 .  See, e.g., < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =

By: Jeffrey M. Haber Under well-settled principles, summary judgment in lieu of complaint is available for an instrument for the payment of money only. In considering such a motion, the courts will look at the four corners of the instrument sued upon in determining whether the instrument qualifies as one for the payment of money only. See,  e.g. ,="3213.&nbsp;<em>See</em>,&nbsp;<em>e.g.</em>," here,  here and  here.=">here</a>."> Most cases under CPLR § 3213 involve promissor

By: Jeffrey M. Haber Affinity fraud is a type of securities fraud in which the promoter of the fraud preys upon members of an identifiable group, such as a religious or ethnic community, the elderly, or a professional group. The promoter of an affinity fraud frequently is – or pretends to be – a member or a good friend of the group. The promoter often enlists respected members of the community or religious leaders from within the group to disseminate information about the sch

By Jonathan H. Freiberger Personal guaranties are contracts of suretyship pursuant to which “one party as surety binds himself to the second party as creditor to pay a debt contracted by a third party either immediately upon default of the third party or after attempts to effect collection from the third party have failed.”  General Phoenix Corp. v. Cabot , 300 N.Y. 87, 92 (1949).  As to when the surety’s obligation arises: hether a surety is a guarantor of payment or a guara

By: Jeffrey M. Haber Mandatory arbitration has been around for a long time. It is a mechanism used by, among others, businesses to require consumers to arbitrate their disputes rather than litigate their claims in a court of law. Although in theory a consumer can opt-out of the arbitration requirement, in reality to do so would mean that he or she would not obtain the product or service. For example, a person cannot buy something online, subscribe to a service, or join a club