By: Jeffrey M. Haber Earlier this month, we wrote about how courts enforce contracts that are clear and unambiguous. The title of the article, “ Contracts That Say What They Mean, Mean What They Say ”, aptly describes this fundamental principle of contract interpretation. After all, a contract that is clear and unambiguous on its face reflects the intent of the parties. 1 And, the courts will enforce the parties’ intent when it is plainly written in the agreement. Courts wi

By: Jeffrey M. Haber 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. 1 It is encouraged and recognized as the public policy of the State of New York. 2 Consequently, courts will interfere as little as possible with the agreement of consenting parties to submit their disputes to arbitration. 3 Generally, a cou

By Jonathan H. Freiberger This Blog frequently writes about decisions related to residential mortgage foreclosure actions. < Here =">Here</a>" and="and" the="the" articles="articles" hyperlinked="hyperlinked" therein.="therein."> One frequent topic that is always ripe for treatment is the repeated failure of lenders to demonstrate compliance with the requirements of RPAPL 1304 due to shortcomings in the evidence presented on their prima facie case. Suffice it to say, on N

By: Jeffrey M. Haber In today’s article, we consider a case in which, as the title indicates, timing is everything. Before we discuss the case, let’s consider the following scenario. The parties to a litigation reach a settlement in principle. They do so while a motion to dismiss the action (or a motion for summary judgment) is pending. Before the parties can execute the definitive agreement that memorializes their settlement, the court decides the motion and dismisses the a

By: Jeffrey M. Haber The doctrines of res judicata and collateral estoppel embody related but distinct concepts. They both stand for the general proposition that a party to a litigation should have only one bite at the apple and should not be permitted to relitigate the same issue over and over again. Under the doctrine of res judicata, a final judgment on the merits of a claim precludes re-litigation of that claim by a party, and those in privity with that party. 1 This mea

By Jonathan H. Freiberger When a borrower borrows money from a lender the repayment obligation is evidenced by a promissory note signed by the borrower and delivered to the lender. Frequently, a borrower’s repayment obligations are secured by a mortgage on real property. Upon a payment (or other) default, the lender may sue on the note or foreclose the mortgage, but cannot do both simultaneously. [Eds. Note: the issue of a lender’s election of remedies under RPAPL § 1301

By: Jeffrey M. Haber This Blog has written numerous articles about Ponzi schemes and the enforcement proceedings that resulted from them. See , e.g. , here , here , here , here , and here . In a Ponzi scheme, the operator creates an investment program in which “profits” are paid to earlier investors with money taken from later investors. The “profits” are, therefore, fictitious instead of returns on investment. Ultimately, Ponzi schemes collapse under their own weight,

By: Jeffrey M. Haber In New York, contracts are to be construed in accordance with the parties’ intent. 1 “The best evidence of what parties to a written agreement intend is what they say in their writing.” 2 Thus, a written agreement that is clear and unambiguous on its face must be enforced according to the plain meaning of its terms. 3 Extrinsic evidence of the parties’ intent may be considered only if the agreement is ambiguous. 4 A contract is unambiguous if “on its f

By Jonathan H. Freiberger Defaults by a party to a real estate contract, whether a purchaser or a seller, are a fruitful source of litigation. Among other remedies available to an individual or entity aggrieved by a real estate contract default is specific performance, an issue discussed in this Blog’s article entitled: “ Specific Performance (That’s What I Want) – Would be a Terrible Song Title .” Briefly stated, because of the judicially recognized “unique” nature of real