There are numerous situations in which the value of real estate becomes an issue in litigation – condemnation proceedings, tax certiorari proceedings and calculating deficiency judgments in foreclosure proceedings – to name a few. Sometimes, when the value of a particular property is at issue, a recent “arm’s length” sale of that same property provides the best assessment of its value. “Although value and price are not necessarily synonymous, the rule has evolved that the p

Is an entity providing pre-construction management services in anticipation of a construction project entitled to file a mechanic’s lien if not paid? While recognizing that there is a dearth of caselaw on this question, the court in Matter of Old Post Road Associates, LLC (Sup. Ct. Westchester Co. May 9, 2018), held that the answer is dependent on the specific nature of the pre-construction services provided. Old Post Road Associates, LLC (“Old Post” or “Petitioner”) owned

Margin abuse occurs when investment professionals take advantage of investors that do not entirely appreciate the risk associated with margin-based investments. In fact, these professionals have a duty to ensure that the investor understands the danger of such an account before entering into an investment agreement. Failure to meet this duty could result in legal liability. What Does Buying on Margin Mean? When you “buy on margin,” you are purchasing securities with (at leas

San Francisco-based Credit Karma, Inc. ("Credit Karma" or the "Company"), the rapidly growing financial services tech company, has been penalized by the Securities and Exchange Commission ("SEC") for regulatory violations related to its Employee Stock Ownership Plan ("ESOP"). The SEC alleged that the Company unlawfully offered securities to its employees and failed to provide them with timely financial statements and risk disclosures. A copy of the press release announcing t

When a complaint is served and filed, a defendant can respond to the pleading in many ways. For example, he/she can answer the complaint or file a motion to dismiss. If the defendant files an answer or the court denies the motion, discovery ensues. Sometimes, a party may conclude that the facts and law necessitate the filing of a motion for summary judgment, even before the close of discovery. Regardless of the timing, the moving party must establish their prima facie entitle

In the United States, support for legalizing marijuana has been growing. Thirty states and the District of Columbia have enacted legislation that legalize marijuana in some form. Eight states and the District of Columbia allow recreational use of marijuana. According to a 2017 Gallup Poll, 64% of Americans support legalizing marijuana for recreational use. With marijuana becoming more accepted, the cannabis industry has grown. Many of the companies fueling this growth are pu

Litigation of residential mortgage foreclosure actions in New York remains prevalent at the trial and appellate court levels. Issues related to residential mortgage foreclosure are frequently treated in this Blog. ( Here , here , here , here and here .) It is not uncommon for an individual faced with the prospect of losing a home to foreclosure, to file a bankruptcy petition on the eve of a foreclosure sale in an effort to stop the sale. Section 362 of the Bankruptcy Code

This Blog has previously examined the different aspects of a shareholder’s derivative action, such as the standing requirements and the distinction between direct and derivative claims. ( Here , here and here .) Today’s article revisits these issues. The Demand Futility Requirement Under Delaware law, to have standing to bring a derivative claim on behalf of a corporation, a plaintiff “must make a pre-suit demand that the board pursue the contemplated action.” Asbestos Wor

Contract provisions containing deadlines for giving notice of an event or occurrence, such as a claimed default, are key parts of commercial transactions. These provisions vary from contract to contract, often requiring different forms of notice and different timing requirements for notice to be given on different issues. Not surprisingly, notice provisions, and compliance with these provisions, are often a basis for disputes. Recently, the Delaware Court of Chancery undersc

In Mitsubishi Motors North America Inc. v. Grand Automotive, Inc. d/b/a Planet Mitsubishi , the United States District Court for the Eastern District of New York granted Mitsubishi Motors North America’s (“Mitsubishi”) request for a preliminary injunction pursuant to Rule 65 of the Federal Rules of Civil Procedure. Mitsubishi distributes its vehicles through a network of authorized dealerships that are authorized to “sell and provide services relating to…Mitsubishi motor veh

The Securities and Exchange Commission (“SEC”) has been busy so far this month. In the latest roundup, this Blog looks at three enforcement actions taken by the SEC against hedge funds and advisers involving fraud and insider trading. Hedge Fund Advisory Firm Settles Charges Related to Asset Mismarking and Insider Trading On May 8, 2018, the SEC announced ( here ) that New York-based Visium Asset Management LP (“Visium”), a hedge fund advisory firm, agreed to settle charges r

A client contacts you about a potential fraud claim. The client tells you that because of alleged false statements, she decided to hold her securities rather than sell them. She says that as result of the false statements she was deprived of the opportunity to sell at a higher price and, therefore, suffered damages when the securities declined upon the disclosure of the truth. Does she have a case? Recently, Justice Shirley Werner Kornreich of the Supreme Court, New County,

On several occasions, this Blog has treated issues related to problems faced by mortgagees foreclosing on certain residential loans. “ Appellate Division Second Department Tells Foreclosing Residential Lender to ‘SHOW ME THE EVIDENCE’ ” addressed the sufficiency of evidence necessary for a foreclosing lender to demonstrate compliance with the requirement under RPAPL §1304 that ninety days prior to the commencement of an action to foreclose a home loan, a lender must send a

Jonathan H. Freiberger, a member of the law firm of Freiberger Haber LLP , was selected by the Queens Economic Development Corporation (“QEDC”) to be a judge in the 2018 Queens StartUP! Competition, a signature program of the QEDC that provides Queens-based small business owners and aspiring entrepreneurs with business education, mentoring, access to capital and development of business skills. In his role as a judge, Mr. Freiberger reviewed, analyzed and provided feedback

It is not uncommon for a person or entity holding money to be placed in a situation where multiple parties claim entitlement to the funds being held. Given the competing claims to the funds, the holder can wait for the parties to resolve their dispute or file an interpleader action asking the court to decide who should get the funds being held. An interpleader action “is an equitable proceeding” brought by a third party to have a court determine the ownership rights of multi

A shareholder is a part owner of a company. While many people understand this very basic concept in business matters , they may not realize what kinds of rights and responsibilities come along with being a shareholder. Shareholders in private companies generally have the same rights as they would in a public company, but they may be enforced differently. A New York business lawyer can help you understand the difference and even assert your rights should you feel that you are

E.J.Brooks Company d/b/a TydenBrooks (“TydenBrooks” or “Plaintiff”) manufactures plastic security seals (“Seals”). When TydenBrooks acquired Stoffel Seals Corp. (“Stoffel”) it came to own Stoffel’s fully automated, and confidential, process for manufacturing Seals. Some TydenBrooks employees “defected to a rival manufacturer, Cambridge Security Seals (“CSS”), and brought with them TydenBrooks’ confidential Seal manufacturing process. TydenBrooks then commenced an action in

It is well settled that arbitration is a favored means of resolving disputes. See , e.g. , CPLR § 7501 (“A written agreement to submit any controversy . . . to arbitration is enforceable without regard to the justiciable character of the controversy and confers jurisdiction on the courts of the state to enforce it and to enter judgment on an award.”); Harris v. Shearson Hayden Stone, Inc. , 82 A.D. 2d 87, 91-93 (1st Dep’t), aff’d , 56 N.Y.2d 627 (1981) (“ his State favors and