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It makes sense that a “plaintiff appears merely by bringing it.”  Deutsche Bank Nat. Trust Co. v. Hall , ____ N.Y.S.3d ___, 2020 WL 4342753 (July 29, 2020) (citation and internal quotation marks omitted).  Once served with process, a defendant must appear in an action to avoid a default.  Section 320(a) of New York’s Civil Practice Law and Rules (the “CPLR”), which sets forth, inter alia, the manner in which a defendant can appear in an action provides that “ he defendant

Our country’s teachers are everyday heroes whose hard work and dedication are vital to cultivating our future leaders and ensuring America’s continued strength.  Jay Clayton, Chairman, Securities and Exchange Commission. In June 2019, the Securities and Exchange Commission (“Commission” or “SEC”) launched the Teachers’ Initiative and the Military Service Members’ Initiative. The primary purpose of these initiatives is to ensure that public school educators, veterans, and acti

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

In our prior Blog “ ’Love Thy Neighbor’ Is Not Always the Case ,” which should be reviewed in conjunction with the instant Blog, section 881 of New York’s Real Property Actions and Proceedings Law (the “RPAPL”) was explored.  Briefly stated, access to a neighboring property is sometimes necessary to improve or repair one’s own property (the “Work”).  In many cases neighbors can amicably resolve such access issues.  This can be done informally or through a formal access agree

Over the past several months, this Blog has examined cases in which plaintiffs brought contract claims and fraud claims in the same action ( here , here and here ). As discussed in those posts, the courts dismissed the cases because the plaintiffs failed to allege an independent basis upon which the claims could stand side-by-side.  Similarly, this Blog has examined cases involving veil piercing and the Statute of Fraud. As to the former, the courts dismissed the actions bec

Risk. Every investment decision carries with it some degree of risk. The greater the risk, the greater the reward. Of course, the flip side is also true. The greater the risk, the greater the potential to lose some or all of the money invested. Thus, when it comes to investing, there is no such thing as a sure thing. Notwithstanding, there are people who promise no risk, no loss investing. They claim that they can place a person’s money into a “can’t miss” investment, where t

This Blog has previously addressed issues concerning mortgage contingency clauses.  < HERE =">HERE</a>">   Briefly stated, mortgage contingency clauses in contracts for the sale of real property make the sale contingent on the purchaser obtaining a purchase money mortgage consistent with the clause’s requirements.  The failure to obtain a mortgage commitment after a diligent effort to do so, permits the potential purchaser to cancel the contract and demand the return of a dow

In today’s article, we examine ASV Techs., Inc. v. Sterling Natl. Bank , 2020 N.Y. Slip Op. 32208(U) (Sup. Ct., N.Y. County July 7, 2020) ( here ). ASV involved the Statute of Frauds and the impact emails can have on the court’s analysis in deciding whether the Statute of Frauds will bar a breach of contract claim. Background AVS involved an alleged breach of a computer program end-user license agreement (“EULA”) between plaintiff, AVS Techs., Inc. , and the predecessor-in-

It is not uncommon for plaintiffs to assert breach of contract and fraud in the same action. It is also not uncommon for the fraud claim to be dismissed as duplicative of the contract claim. Indeed, the reporters are brimming with cases in which the fraud claim is dismissed because it is nothing more than a breach of contract claim dressed up in the language of fraud. The cases we examine today, East Coast Int’l Tire Group, Inc. v. New York Tire Factory, Inc. , 2020 N.Y. Slip