Insurance. It is an important part of life. People buy insurance for many reasons, such as for the protection of their health, auto, business and home. The expectation is that one’s insurance policy will cover enough risks to protect against financial loss. As explained by Investopedia, an online resource “dedicated to financial education and empowerment” ( here ), “ nsurance policies are used to hedge against the risk of financial losses, both big and small, that may resul

Arbitration is an alternative form of dispute resolution where the parties voluntarily agree that a neutral, private person will resolve any legal disputes between them, instead of a judge or jury in a court of law. Rent-A-Ctr., W, Inc. v. Jackson , 561 U.S. 63, 67 (2010) (noting that “arbitration is a matter of contract”). In business and commercial transactions, arbitration is the preferred means of resolving disputes. It is encouraged and recognized as the public policy of

Questions of arbitrability and waiver are often litigated by parties to a contract containing an agreement to arbitrate disputes arising thereunder. In the Matter of New Roots Charter School v. Ferreira , 2019 N.Y. Slip Op. 30137(U) (Sup. Ct. Tompkins Cnty. Jan. 16, 2019) ( here ), the Court was faced with these questions, having to decide whether the parties had agreed to arbitrate their disputes and if so whether the respondent had abandoned his right to litigate certain cl

To plead a fraud or fraudulent inducement claim, a plaintiff must allege 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 marks omi

Commercial transactions very often involve parties from different states. One party can be domiciled in New York, for example, while the other can be incorporated or headquartered in Delaware. When a dispute arises between such geographically diverse parties, questions concerning the jurisdiction of a court over the parties often gets litigated. This becomes even more pronounced when the corporation is a multinational company, which conducts business across the county and th

On January 15, 2019, the New York State Supreme Court, Appellate Division, First Department rendered a decision in In re: New York State Land Title Association, Inc. v. New York State Department of Financial Services , in which the Court, inter alia , upheld certain provisions of the Insurance Law and related regulations promulgated by the Department of Financial Services (“DFS”) designed to “explicitly prohibit the practice of kickbacks from insurers to title closers, attor

Laches is an equitable bar to a claim that is based on a lengthy failure to assert one’s rights that prejudices an adverse party. The doctrine is “designed to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared.” Order of R.R. Tels. v. Ry Express Agency, Inc. , 321 U.S. 342, 348-49 (1944). As explained in Law.Com’s online dictionary, the doctri

On January 4, 2019, the United States Supreme Court granted the petition for a writ of certiorari ( here ) filed by, among others, Emulex Corporation (“Emulex”), a Delaware corporation, that merged with Avago Technologies Wireless (USA) Manufacturing Inc. (“Avago”) (“Petitioners”). Emulex Corp. v. Varjabedian , 18-459. The question presented by the petition concerned whether “Section 14(e) of the Securities Exchange Act of 1934 <“exchange act”> supports an inferred private r

The elements of a common law fraud claim are well known to readers of this Blog: to wit, a material misrepresentation of a fact, knowledge of its falsity, an intent to induce reliance, justifiable reliance by the plaintiff, and damages. Eurycleia Partners, LP v. Seward & Kissel, LLP , 12 N.Y.3d 553 (2009). While the justifiable reliance and intent to deceive elements are frequently the focus of a defendant’s challenge, the falsity element can be front and center too, especial

In commercial and business litigation, it is common for plaintiffs to assert claims against a corporation ( e.g. , C-Corp. or an S-Corp.) or limited liability company (“LLC”) for wrongs committed by the entity. Often, plaintiffs will try to “pierce the corporate veil,” or get behind the corporate form, to hold the entity’s officers or members liable for the alleged wrongdoing. Since a plaintiff must show that an officer or member used his/her control over the entity to commi

Statutes of limitations are an important part of litigation. A plaintiff who sits on his/her rights can be denied access to the courthouse for failing to timely assert his/her claim(s). While such a result seems unfair, the courts do not always agree. But, when the plaintiff fails to timely assert a claim because of the words or actions of the would-be defendant, the courts are more forgiving, exercising their legal and equitable powers to estop the defendant from dismissing

Often, in the pre-action investigation of a client’s claims, it becomes evident that discovery would materially aid the client in framing his/her complaint or in learning the identities of the persons against whom the complaint should be brought. Obtaining such pre-action discovery, however, is not easy. The plaintiff must demonstrate the existence of a meritorious cause of action against the proposed defendant and the materiality and necessity of obtaining the information.

Our July 3, 2018 Blog post, entitled: “ OUT OF STATE ATTORNEYS ADMITTED IN NEW YORK, CANNOT RELY ON NEW YORK VIRTUAL OFFICES IF THEY INTEND TO PRACTICE IN NEW YORK ” (the full text of which is reprinted below), addressed issues related to the need for attorneys admitted to practice law in New York, but who do not reside in New York, to have physical offices in New York. One of the cases discussed in the Blog was , 154 A.D.3d 523 (1 st Dep’t 2017), in which the First Departm

As new technologies are developed, and the exchange of ideas proliferate, the risk that a company’s trade secrets and ideas will be misappropriated has become a part of doing business. As discussed by this Blog in a prior post (here), businesses can find protection from the misappropriation of trade secrets in the Uniform Trade Secrets Act (adopted in some form by every state other than New York) and/or the common law. In New York, when a plaintiff claims misappropriation of

Forum selection clauses are common in commercial contracts because they “provide certainty and predictability in the resolution of disputes.” , 6 N.Y.3d 242, 247 (2006), quoting , 87 N.Y.2d 530, 534 (1996). They come in two forms: mandatory and permissive. In the former, the parties are “required to bring any dispute to the designated forum,” while the latter “only confers jurisdiction in the designated forum, but does not deny plaintiff his choice of forum, if jurisdiction t

New York’s Business Corporation Law (“BCL”) provides shareholders owning 50% or more of a corporation two paths to judicial dissolution: a) BCL § 1104 – deadlock at the board or shareholder level such that the corporation “cannot continue to function effectively, and no alternative exists but dissolution”; or b) BCL § 1104-a – where directors or those in control of the corporation have been guilty of illegal, fraudulent or oppressive actions toward the complaining shareholder

Commercial contracts often include a liquidated damages clause that provides for the payment of a predetermined amount of damages in the event of a breach by one of the parties. Such clauses are often found in contracts for the sale of real property, commercial leases, and construction contracts. Given the consequences of liquidated damages clauses, it is important to understand when and how such a clause will be enforced. What are Liquidated Damages? A liquidated damages c

“The object and purpose of mechanics’ lien law was to protect a person who, with the consent of the of the owner of real property, enhanced its value by furnishing materials or performing labor in its improvement, by giving him an interest therein to the extent of the value of such material or labor. The filing of the notice of lien is the statutory method prescribed by which the party entitled thereto perfects his inchoate right to that interest.” John P. Kane Co. v. Kinn