This Blog has previously addressed “economic duress” and the “voluntary payment doctrine.” < HERE =">HERE"> , < HERE =">HERE"> and < HERE =">HERE"> “Economic duress” is a theory upon which a “complaining party to void a contract and recover damages when it establishes that it was compelled to agree to the contract terms because of a wrongful threat by the other party which precluded the exercise of its free will.”  805 Third Ave. Co. v. M.W. Realty Assoc. , 58 N.Y.2d 447, 451 (1983) (citations omitted).  However, “a party cannot be guilty of economic duress for refusing to do that which it is not legally required to do.”  805 Third Ave. , 58 N.Y.2d at 453.  In Fruchthandler v. Green , 233 A.D.2d 214 (1996), the First Department affirmed the dismissal of a complaint alleging that economic duress should operate to void a release executed by plaintiff that “relieved defendant from liability under two promissory notes.”  The Fruchthandler Court stated that in order to succeed, “plaintiff would have to show he was compelled to agree to the terms of the release by means of a wrongful threat which precluded the exercise of his free will.”  Fruchthandler, 233 A.D.2d at 214 (citations omitted).  The Fruchthandler Court, however, found that the record precluded a finding of economic duress because “the release resulted from vigorous bargaining tactics which do not amount to economic duress.”  Fruchthandler, 233 A.D.2d at 214 (citations omitted).  The Fruchthandler Court also found that “at the time the release was entered into, defendant surrendered his partnership interest in certain properties to plaintiff aving accepted the benefits of the agreement before commencing this action, plaintiff, in effect, ratified the release and is therefore barred from alleging economic duress in its execution.”  Fruchthandler, 233 A.D.2d at 215 (citations omitted).  Finally, the Fruchthandler Court also found that plaintiff waived its right to assert an economic duress claim as a result of the “inordinate length of time which passed between the alleged duress and the assertion of the claim.”  Fruchthandler, 233 A.D.2d at 215 (citations omitted).   The “voluntary payment doctrine” bars recovery of payments voluntarily made with full knowledge of the facts, and in the absence of fraud or material mistake of fact or law.  Dubrow v. Herman & Beinin , 157 A.D.3d 620 (1 st Dep’t 2018) (citation and quotation marks omitted). On July 8, 2020, the Appellate Division, Second Department, decided Overbay, LLC v. Berkman, Henoch, Peterson, Peddy & Fenchel, P.C. , in which the Court addressed both economic duress and the voluntary payment doctrine.  The facts of Overbay are straight forward.  Overbay owned property (the “Property”) that it intended to develop.  Defendant Harbour Trio Management, LLC (Harbour) was a lender that held a mortgage on the Property.  When Overbay defaulted under its loan, Harbour commenced a mortgage foreclosure proceeding.  Berkman, Henoch, Peterson, Peddy & Fenchel, P.C. (“Berkman”) was Harbour’s counsel in the foreclosure proceeding. As expected, the mortgage provided that Harbour was entitled to recoup its legal fees from Overbay in the event foreclosure proceedings were commenced.  While the motion court granted Harbour’s motion for a judgment of foreclosure and sale, the quantum of legal fees to which Harbour was entitled was to be determined at a hearing.  Prior to the legal fees hearing, Overbay exercised its right of redemption (the right to pay off the debt prior to the foreclosure sale).  Overbay demanded a pay-off letter in order to “satisfy the judgment with the proceeds of a construction loan, upon which they had to close before the date of the hearing; the loan commitments would otherwise have expired by that point in time.”  Ultimately, Harbour sent a payoff letter that included $82,561.92 in legal fees from the Berkman firm.  Harbor delivered a satisfaction of mortgage to Overbay after Overbay paid, “without raising a contemporaneous objection”, the full sum demanded in the pay-off letter. Thereafter, Overbay commenced litigation against Harbour and Berkman in which they sought reimbursement of the attorney’s fees “alleging that they were forced to pay those fees involuntarily under economic duress in order to close on refinancing loan.”  The Second Department affirmed the dismissal of Overbay’s complaint.  The Court, after noting the law on economic duress as set forth herein, found that “Harbour demonstrated, prima facie, that its exercise of its legal right to the subject attorney’s fees pursuant to the explicit terms of the underlying mortgage loan agreement did not rise to the level of actionable economic duress.” As to the application of the voluntary payment doctrine, the Overbay Court said: Further, “the voluntary payment doctrine bars recovery of payments voluntarily made with full knowledge of the facts, and in the absence of fraud or mistake of material fact or law” ( Dillon v U-A Columbia Cablevision of Westchester , 100 NY2d 525, 526). There is a presumption that payments are voluntary ( see 82 NY Jur 2d, Payment and Tender, § 82). Additionally, in order for a protest of payment to be characterized as appropriate, it must be in writing and made at the time of payment ( see Nunner v Newburgh City School Dist. , 92 AD2d 888). Here, Harbour demonstrated, prima facie, that the voluntary payment doctrine bars recovery by the plaintiffs of their payment of the full amount of attorney’s fees, which was not contemporaneously protested at the time of payment. In opposition, the plaintiffs failed to raise a triable issue of fact.

The Federal Rules of Civil Procedure and the Civil Practice Law and Rules set forth the grounds upon which an arbitration award can be vacated. here,=">here," >here=">here" and="and" >here.=">here."> One of the grounds for vacatur is arbitrator bias. In today’s article, we look at Carter v. Royal Alliance Assoc., Inc. , 2020 N.Y. Slip Op. 32086(U) (Sup. Ct., N.Y. County June 30, 2020) ( here ), a case involving a motion to vacate an arbitral award due to alleged arbitrator bias.  Carter involved an arbitration award (“Award”), issued on January 15, 2019, by the Financial Industry Regulatory Authority (“FINRA”). The Award, which was issued unanimously by a three-person panel (“Panel”), granted petitioner, Cathy Carter (“Carter”), $2,113,665.00 in compensatory damages, $15,277.55 in costs, and $500,000.00 in attorneys’ fees. The issues before the Court were twofold: (1) whether the award of attorney’s fees was proper; and (2) whether the Award was tainted by the non-disclosure of possible bias by the chair of the Panel. Slip Op. at *2. Attorney’s Fees The propriety of the attorney’s fees award centered on a settlement offer, captioned “Offer of Judgment”, that respondent, Royal Alliance Associates, Inc. (“Royal”), sent to Carter. Carter accepted the offer but did so “without waiver to any of her rights at law, including her right to pursue costs as well as attorneys’ fees as a prevailing party.” Id. Simultaneously with accepting the offer, Carter advised Royal that she was “filing a motion for a hearing on costs and attorney’s fees as prevailing party.” Id. The Court found the foregoing language dispositive, opining that “ t is hard to imagine a clearer statement that Carter’s acceptance of the sum offered to her would not bar her from seeking attorneys’ fees in addition, and that she intended to do so in the then-pending arbitration proceeding.” Id. In so holding, the Court rejected Royal’s argument that Carter gave up the right to seek attorney’s fees once she “granted a full release of all claims.” Id. The Court noted, however, that the parties did not execute a settlement agreement in which a release was given. Id. at *2-*3. Moreover, the Court found that “ hether intended as a settlement offer, or as a formal offer of judgment , neither Royal’s letter, nor Carter’s response to it, bar her claim for attorneys’ fees: Carter’s initial submission to FINRA specified that she was acting, inter alia, pursuant to the Racketeer Influenced & Corrupt Organizations Act (RICO), 18 USC 1961, et seq. To the extent that Royal’s offer was what its heading denoted, and its first sentence stated, it was invalid as a bar to seeking attorneys’ fees, because it failed explicitly to mention costs, including attorney’s fees, although such costs are provided for by RICO. See , e.g . Sanchez v Prudential Pizza, Inc. 709 F3d 689, 691 (7th Cir 2013) (remanding for determination of costs and fees, where offer of judgment was silent as to costs provided for by statute); see also Steiner v Lewmor, Inc. , 816 F3d 26, 34-35 (2d Cir 2016) (holding that the plaintiff was not precluded from seeking attorneys’ fees pursuant to the Connecticut Unfair Trade Practices Act, where Rule 68 offer did not unambiguously bar such recovery). To the extent that Royal’s offer was not what its heading implied and its first sentence said that it was, Carter’s letter, reserving a right that was not mentioned in the offer, constituted a counteroffer. See e.g. Brown v Cerberus Capital Mgt., L.P. , 173 AD3d 513, 513 (1st Dept 2019).  Slip Op. at *3-*4. “Accordingly,” said the Court, “this court need not resolve the ambiguity in Royal’s position. Whether Royal’s offer was, or was not, an offer of judgment, Carter was not barred from seeking attorneys’ fees.” Id. at *4. Arbitrator Bias The non-disclosure about which Royal complained was that, more than ten years before the Award, the Chair of the Panel, who was then in private practice, had represented an elderly woman, whose savings had been stolen by her financial advisor. Upon learning of this representation, Royal’s attorneys wrote to FINRA, which, at Royal’s request, referred the inquiry to the Chair. The Chair responded that he did not believe his long-ago representation biased him in the pending arbitration. “For tactical reasons,” Royal did nothing further; it did not raise the issue at arbitration. Id. The Court held that “ aving remained silent at the arbitration, Royal may not, now, claim bias on the part of the Chair.” Id. (citing Matter of Goldstein v. 12 Broadway Realty, LLC , 105 A.D.3d 506, 506 (1st Dept 2013), citing Matter of J.P. Stevens & Co. v. Rytex Corp. , 34 N.Y.2d 123, 129 (1974)). The Court also rejected Royal’s argument that the conduct of the arbitration, with regard to attorney’s fees, was flawed and showed arbitrator bias. Id. at *5.  Takeaway A court will vacate or modify an arbitral award when the arbitrator was biased or maintained an undisclosed personal relationship to one of the parties, resulting in a prejudiced decision. E.g. , J.P. Stevens & Co. v. Rytex , 34 N.Y.2d 123, 129-130 (1974). Peripheral, superficial and insignificant contacts or relationships will not subject an arbitral award to vacatur or modification. In the Matter of Cross Props., Inc. v. Gimbel Bros., Inc. , 15 A.D.2d 913 (1st Dept. 1962). The relationship must be material. Id. See also J.P. Stevens , 34 N.Y.2d at 129. Mere inferences of impartiality are insufficient to warrant interference with the arbitrator’s award; the evidence must be stronger; it must be clear and convincing. Matter of Provenzano , 28 A.D.2d 528 (1st Dept. 1967), aff’d , J.D.H. Rest. Inc. v. New York State Liquor Auth. , 21 N.Y.2d 846 (1968). In Carter , the alleged bias was, by dint of time, immaterial. As a result, the Court found that Royal failed to satisfy its burden of showing bias to warrant vacatur of the Award.

We have often written about the justifiable reliance element of a fraud claim ( e.g. , here , here , here , here , and here ). Though the outcome of the issue is typically fact dependent, dismissals nevertheless occur because the plaintiff cannot demonstrate that reliance was reasonable or justified. Such was the case (for the most part) in Carmen E. Maestro Family Trust v. 449 Washington LLC , 2020 N.Y. Slip Op. 32054(U) (Sup. Ct., Kings County June 22, 2020) ( here ), the subject of today’s article. Carmen E. Maestro Family Trust v. 449 Washington LLC Background Plaintiff, the Carmen E. Maestro Family Trust, commenced the action to recover damages relating to the purchase and sale of a condominium unit. Plaintiff alleged that it engaged defendant, The Corcoran Group (“Corcoran”), as a real estate broker to show apartments with two bedrooms, two bathrooms and open light and views in the Tribeca neighborhood of Manhattan. Corcoran was previously retained by defendant, 449 Washington LLC (“449 LLC”), as the listing agent to market condominium units in 449 LLC’s building. Defendant, M. Monica Novo (“Novo”), an agent employed by Corcoran, showed plaintiff an apartment in the building. Plaintiff alleged that 449 LLC and Corcoran/Novo falsely marketed the unit as a two-bedroom and two-bathroom apartment with three exposures, when in fact the unit was only a legal one-bedroom apartment with two exposures. Plaintiff claimed that defendants failed to disclose that the southern wall of the unit, which featured five windows, was actually on a “lot line,” and therefore any construction along this lot line taller than the third floor of the building would require the sealing of the windows in the southern wall of the unit and the consequential loss of light and air. Plaintiff alleged that it relied on the misrepresentations of 449 LLC, Corcoran and Novo as to the number of legal bedrooms in closing on the unit and that if it was made aware of the fact that the unit was only a legal one-bedroom apartment and contained lot line windows that may require sealing, it would have exercised the contractual right of rescission and recovered its down payment. Plaintiff alleged that it suffered damages in that it could only sell the unit as a legal one-bedroom apartment (due to the loss of the lot line window of the second “bedroom”) at a price substantially lower than the sum plaintiff paid for the unit. Plaintiff set forth a number of causes of action, including fraudulent inducement against 449 LLC and Corcoran/Novo (third). Each of the parties moved for summary judgment. The Court’s Decision Plaintiff alleged that it was fraudulently induced to buy the unit. According to the complaint, defendants misrepresented that the unit was a legal two-bedroom apartment, that the southern windows were not lot line windows, that the windows would not be blocked by the building constructed on the lot to the south and/or that the windows would not need to be sealed because the adjacent building would be set back 15 feet from the property line of 449 LLC’s building. To establish a claim for fraudulent inducement, a plaintiff must show a “misrepresentation or a material omission of fact which was false and known to be false by 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.” Lama Holding Co. v. Smith Barney , 88 N.Y.2d 413, 421 (1996); Tsinias Enters. Ltd. v. Taza Grocery, Inc. , 172 A.D.3d 1271, 1272 (2d Dept 2019). The Court held that plaintiff failed to satisfy the justifiable reliance element of the claim. Slip Op. at *9. The Court rejected plaintiff’s claim that it relied on the brochure floor plan in purchasing the unit. Id. The Court observed that the floor plan was “devoid of any indication that the southern wall windows were lot line windows.” Id. “ uch reliance,” said the Court, was “not justifiable given that the brochure provided” an artist’s rendition of the floor plan and the Sponsor had made “no representations or warranties except as … set forth in the Offering Plan.” Id. “ he Offering Plan clearly stated that ‘ ll windows along the South facade, at the third, fourth, fifth, sixth and seventh floors, ‘Lot Line’ windows,’” said the Court. Id. In light of the foregoing statement in the Offering Plan, the Court held that plaintiff’s admitted failure to read the Offering Plan before signing the Purchase Agreement “prevent plaintiff from establishing justifiable reliance.…” Id. (citing Stortini v. Pollis , 138 A.D.3d 977, 978 (2d Dept. 2016); Sorenson v. Bridge Capital Corp. , 52 A.D.3d 265, 266 (1st Dept. 2008). “A party who signs a document without any valid excuse for not having read it,” said the Court, “is ‘conclusively bound’ by its terms.” Id. (quoting Ferrarella v. Godt , 131 A.D.3d 563, 567-568 (2d Dept. 2015) (internal quotation marks omitted), quoting Gillman v. Chase Manhattan Bank , 73 N.Y.2d 1, 11 (1988)). The Court concluded that “ ased upon the express terms of the Offering Plan and the Purchase Agreement, plaintiff claim that it reasonably relied upon any purported misrepresentations contained in promotional materials or oral statements.” Id. at *10 (citations omitted). Therefore, as against 449 LLC, the Court dismissed the fraudulent inducement claim. The Court also held that Corcoran/Novo demonstrated that no misrepresentation was made upon which plaintiff could have justifiable relied. Id. at *10. The Court explained that deposition testimony revealed that plaintiff merely relied on “predictions as to likelihood”, which are not actionable as a fraud. Id. at *12, *13 (citing Zanani v. Savad , 217 A.D.2d 696, 697 (2d Dept. 1995) (“In general, a representation of opinion or a prediction of something which is hoped or expected to occur in the future will not sustain an action for fraud”)). “According to the aforementioned testimony,” said the Court, “any representation by Novo that no building would be constructed on the adjoining lot was not a misrepresentation of a present fact but either a future prediction or a representation conditioned upon the nonoccurrence of a future action ( e.g. a zoning variance).” Id. at *14. The Court further held that “plaintiff could not have justifiably relied on any alleged misrepresentation by Corcoran/Novo regarding the unit’s location on a lot line given the clear statements in the Offering Plan which admits having not read.” Id. Thus, concluded the Court, a claim of fraudulent misrepresentation could not be supported by “allegations of misrepresentations concerning the existence of lot line windows or whether construction was planned for the adjoining lot.” Id. However, the Court sustained plaintiff’s fraudulent inducement claim concerning the legality of the apartment as a two-bedroom unit. Id. at *17. Plaintiff claimed that it purchased the unit based upon the representation in the marketing materials that the unit was a two-bedroom apartment, when, in fact, it was only a legal one-bedroom apartment. Id. Corcoran/Novo argued that despite any representations with respect to the number of legal bedrooms in the unit, such could not be the cause of plaintiff’s loss upon resale as apartments were priced according to square footage. The Court rejected defendants’ evidence because it was “equivocal as to whether square footage was the sole motivator in pricing the apartment.” Id. at *16. The Court explained that “ here no … proof offered to establish, as a matter of law, that the loss plaintiff took upon resale of the apartment was unrelated to the change in the number of legal bedrooms rather than, as Corcoran/Novo argue, ‘market forces.’” Id. Consequently, the Court found that “an issue of fact remain as to whether the subject apartment was improperly marketed and overvalued as a legal two-bedroom apartment, whether plaintiff was misled into believing that any potential neighboring structure would be set back from the unit’s lot line windows and whether plaintiff suffered actual damages when she submitted an offer based on said misrepresentations and was compelled to market and resell the unit as a one-bedroom apartment with endangered windows at a substantially lower price.” Id. at *17. [Ed. Note: Plaintiff also alleged that defendants violated General Business Law §§ 349 and 350. A cause of action to recover damages for a violation of GBL § 349 must “identify consumer-oriented misconduct which is deceptive and materially misleading to a reasonable consumer, and which causes actual damages.” Wilner v. Allstate Ins. Co. , 71 A.D.3d 155, 161-162 (2d Dept. 2010); Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank , 85 N.Y.2d 20, 25 (1995). Defendants sought dismissal of these claims on the ground that the subject transaction was not consumer oriented. The Court rejected the argument, noting that a claim “under the Deceptive Practices Act based upon deceptive or misleading information in brochures and advertisements for the sale of condominiums and cooperative apartments to the public” is consumer-oriented conduct. Id. at *20 (quoting Board of Mgrs. of Beacon Tower Condominium v. 85 Adams St., LLC , 136 A.D.3d 680, 685 (2d Dept. 2016 ); see also B.S.L. One Owners Corp. v. Key Intl. Mfg. , 225 A.D.2d 643, 644 (2d Dept. 1996); Board of Mgrs. of Bayberry Greens Condominium v. Bayberry Greens Assoc. , 174 A.D.2d 595, 596 (2d Dept. 1991)). Consequently, the Court held that “Defendants fail to establish, as a matter of law, that the instant transaction not fall within the ambit of the statutes, and there remain an issue of fact as to whether the materials indicating that the subject unit contain two legal bedrooms deceptive or misleading.” Id. ] Takeaway To demonstrate justifiable reliance, a plaintiff must demonstrate that he/she relied upon the misrepresentation to his/her detriment. Such reliance must be “justifiable” and “reasonable.” Daly v. Kochanowicz , 67 A.D.3d 78, 91 (2d Dept. 2009). Thus, where a party has the means to discover “the true nature of the transaction by the exercise of ordinary intelligence and fails to make use of those means, he cannot claim justifiable reliance on defendant’s misrepresentations.” Rosenblum v. Glogoff , 96 A.D.3d 514, 515 (1st Dept. 2012). Although the Court in Carmen E. Maestro Family Trust sustained a portion of the fraudulent inducement claim against defendants Corcoran/Novo, plaintiff could not demonstrate reasonable reliance on the alleged lot line misrepresentations because it failed to read the Offering Plan. As noted by the Court, the disclosures in the Offering Plan made it unreasonable to rely on any statement concerning lot line windows. The law is settled that “a party will not be excused from his failure to read and understand the contents of a .” Johnson v. Thruway Speedways , 63 AD2d 204, 205 (3d Dept. 19780 (citation omitted). For this reason, “the signer of a written agreement is conclusively bound by its terms unless there is a showing of fraud, duress or some other wrongful act on the part of any party to the contract.” Columbus Trust Co. v. Campolo , 110 A.D.2d 616, 617, aff’d 66 N.Y.2d 701. In Carmen E. Maestro Family Trust , there was no evidence of such conduct.

It is not uncommon for parties in commercial transactions to include in their contracts a provision that limits the types of damages recoverable in the event of a breach. Typically, these provisions include a limitation on the recovery of lost profits. An example of such a provision, drawn from the agreement in Fresenius Kabi USA, LLC v. Hetero USA, Inc. , 2020 N.Y. Slip Op. 03285 (1st Dept. June 11, 2020) ( here ), provides: “no party shall be liable to the other party for indirect, incidental, special or consequential damages arising out of performance under this agreement, including without limitation, loss of . . . profits.” In New York, and elsewhere, contractual limitations on the damages recoverable for a breach of contract are routinely enforced. See , e.g. , Daily News, L.P. v. Roclavell Int’l Corp. , 256 A.D.2d 13, 13 (1st Dept. 1998) (“Plaintiff’s breach of contract claim seeking consequential damages was properly dismissed since the parties’ contract ... limits the remedies available thereunder and expressly excludes as a remedy the recovery of consequential damages.”); Mom’s Bagels of New York, Inc. v. Sig Greenebaum, Inc. , 164 A.D.2d 820, 822 (1st Dept. 1990) (“We have long held that parties to a commercial contract, absent any question of unconscionability, may agree to limit ... damages.”) (citations omitted); see also Chaitman v. Moezinia , 178 A.D.3d 642 (1st Dept. Dec. 26, 2019) (“In view of this unequivocal exculpatory clause stating that no other provision in the lease shall entitle the tenant to consequential damages, the claim for lost profits is barred.”). These provisions “represent[] the parties’ Agreement on the allocation of the risk of economic loss in the event that the contemplated transaction is not fully executed….” Metropolitan Life Ins. Co. v. Noble Lowndes Int’l , 84 N.Y.2d 430, 435, 436 (1994) (enforcing damages limitations for lost profits, loss of business, or other financial loss resulting from breach/non-performance). However, “ imitations on a party’s liability … to be enforceable must be clearly, explicitly and unambiguously expressed in a contract are … strictly construed against the party seeking to avoid liability.” Terminal Cent. V. Modell & Co. , 212 A.D.2d 213, 218-219 (1st Dept. 1995); compare Madison Hudson Assoc. LLC v. Neumann , 44 A.D.3d 473, 481 (1st Dept. 2007) (enforcing explicit and unambiguously expressed limitation on damages to return of capital contribution). Bad faith, wrongful conduct or gross negligence may bar enforcement of exculpatory agreements. Kalisch-Jarcho, Inc. v. City of New York , 58 N.Y.2d 377, 385 (1983). Since lost profits may be excluded from the types of damages recoverable for a breach, it is important to understand what it means to seek lost profit damages.  There are two types of damages recoverable as lost profits: (1) lost profits that are general damages; and (2) lost profits that are consequential or special damages. As the New York Court of Appeals has noted: “The distinction between general and special contract damages is well defined but its application to specific contracts and controversies is usually more elusive.” Biotronik A.G. v. Conor Medsys. Ireland, Ltd. , 22 N.Y.3d 799, 805-806 (2014) (internal quotation marks and citation omitted). Lost profits as general damages “are the natural and probable consequence of the breach” of a contract. Biotronik , 22 N.Y.3d at 805, citing American List Corp. v. U.S. News & World Report , 75 N.Y.2d 38, 43 (1989); Kenford Co. v County of Erie , 73 N.Y.2d 312, 319 (1989). General damages include “money that the breaching party agreed to pay under the contract.” Tractebel Energy Mktg., Inc. v. AEP Power Mktg., Inc. , 487 F.3d 89, 109 (2d. Cir 2007), citing American List Corp. , 75 N.Y.2d at 44. In other words, “a claim for general damages” exists where the plaintiff “seeks only what it bargained for—the amount it would have profited on the payments promised to make.” Tractebel , 487 F.3d at 110; see also Biotronik , 22 N.Y.3d at 806 (the “direct and immediate fruits” of a contract are general damages) (quoting Tractebel , 487 F.3d at 109 n.20). Lost profits may be recovered as general damages if there is a “stable foundation for a reasonable estimate.” Tractebel , 487 F.3d at 110 (internal quotation and citations omitted). To plead a stable foundation, a plaintiff must show that “ here are some facts upon which a jury could base a judgment, not certain nor strictly accurate, but sufficiently so for the administration of justice.” Wakeman v. Wheeler & Wilson Mfg. Co. , 101 N.Y. 205, 216 (1886); accord Plant Planners, Inc. v. Pollock , 60 N.Y.2d 779, 780–81 (1983) (lost profits are “recoverable where plaintiff has supplied some adequate basis for computing the amount.”). This standard flows from the principle that a party who breaches “his contract should not be permitted entirely to escape liability because the amount of the damage which he has caused is uncertain.” Tractebel , 487 F.3d at 110 (quoting Wakeman , 101 N.Y. at 209).  Under the stable foundation standard, therefore, general damages may be awarded for lost profits even where they are uncertain and difficult to estimate. See Randall-Smith, Inc. v. 43rd St. Estates Corp. , 17 N.Y.2d 99, 105 (1966) (“The rule to be applied is a flexible one”); see also Tractebel , 487 F.3d at 112 (“New York courts have significant flexibility in estimating general damages once the fact of liability is established.”). Lost profits as consequential, or special damages, do not “directly flow from the breach.” American List Corp. , 75 N.Y.2d at 43. Where the damages were the result of a separate agreement with a nonparty, they are consequential damages. Typically, consequential damages involve a breach of contract that interferes with “the ability of the non-breaching party to operate his business, and thereby generate profits on collateral transactions” such that “profits from potential collateral exchanges are ‘lost.’” Tractebel , 487 F.3d at 109. Lost profits as consequential or special damages “are only recoverable when ‘(1) it is demonstrated with certainty that the damages have been caused by the breach, (2) the extent of the loss is capable of proof with reasonable certainty, and (3) it is established that the damages were fairly within the contemplation of the parties.’” Biotronik , 22 N.Y.2d at 806, quoting Tractebel , 487 F.3d at 109, citing Kenford Co. v. County of Erie , 67 N.Y.2d 257, 261 (1986). As to the second requirement, the damages must be capable of measurement based upon known reliable factors. Ashland Mgt. Inc. v. Janien , 82 N.Y.2d 395, 403 (1993). They cannot be “speculative, possible or imaginary, but must be reasonably certain and directly traceable to the breach.” Id. Finally, the damages cannot be “remote or the result of other intervening causes.” Id. Notably, if a new business is seeking to recover for the loss of future profits, the courts impose “a stricter standard … for the obvious reason that there does not exist a reasonable basis of experience upon which to estimate lost profits with the requisite degree of reasonable certainty.” Id. , citing Cramer v. Grand Rapids Show Case Co. , 223 N.Y. 63 (1918); 25 CJS, Damages, § 42(b). In Fresenius Kabi USA, LLC v. Hetero USA, Inc. , supra ( here ), the Appellate Division, First Department considered the foregoing principles in dismissing the plaintiff’s claim for lost profits. Plaintiff sought damages for lost profits resulting from defendant’s alleged breach of the parties’ “Product Distribution Agreement.” The agreement contained a limitation of liability clause that provided, in pertinent part, “Except for indemnification obligations under this agreement, no party shall be liable to the other party for indirect, incidental, special or consequential damages arising out of performance under this agreement, including without limitation, loss of . . . profits.”  Relying on Biotronik , Plaintiff argued that the lost profit damages were recoverable because “they direct, or general, as opposed to consequential.” Slip Op. at *1. The First Department “reject this argument” without explanation. Id. In addition, because of the clear and unambiguous language of the limitation of liability clause in the Product Distribution Agreement, the Court concluded that the agreement “barred” recovery of lost profits. Id. The Court noted that plaintiff failed to provide “a persuasive explanation for why the parties included the ‘lost profits’ language in the limitation of liability clause if they did not intend to preclude the recovery of lost profits.” Id. Takeaway A party may not recover damages for lost profits unless such damages were within the contemplation of the parties at the time the contract was entered into and are capable of measurement with reasonable certainty. The former requirement speaks of foreseeability, while the latter speaks of reasonable certainty. Given the Court’s rejection of plaintiff’s argument, it appears that lost profits were not foreseeable. Moreover, even if the damages could be categorized as general damages, plaintiff could not explain why the limitation of liability clause did not apply to lost profits as either general or consequential damages. Without such an explanation, the Court enforced the limitation of liability clause according to its terms.

In prior posts, we examined the rules of contract formation. In our most recent post on the subject ( here ), we considered a case in which one of the issues before the court was whether there was an exchange of consideration sufficient to support the formation of a contract. Today, we examine Galarneau v. D’Andrea , 2020 N.Y. Slip Op. 03584 (3d Dept. June 25, 2020) ( here ), a case in which the Appellate Division, Third Department was asked to consider whether plaintiff demonstrated (at trial) that the defendant accepted of an offer to purchase real property located in Saratoga Springs, New York. As discussed below, the Court affirmed the dismissal of plaintiff’s claim for specific performance because he could not demonstrate the formation of a contract ( i.e. , the acceptance of an offer). See Isabella v. Jackling , 155 A.D.3d 1650, 1651 (4th Dept. 2017) (internal quotation marks, brackets and citation omitted) (“ t is fundamental that specific performance may be awarded only where there is a valid existing contract for which to compel performance”). As noted in our prior post, “ o establish the existence of an enforceable agreement, a plaintiff must establish an offer, acceptance of the offer, consideration, mutual assent, and an intent to be bound.” Kasowitz, Benson, Torres & Friedman, LLP v. Duane Reade , 98 A.D.3d 403, 404 (1st Dept. 2012) (internal quotation marks and citations omitted), aff’d , 20 N.Y.3d 1082 (2013). “An offer is the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.” Restatement (Second) of Contracts § 24. Acceptance of an offer is effective if it clearly, unambiguously and unequivocally complies with the terms of the offer. King v. King , 208 A.D.2d 1143, 1143-1144 (3d Dept. 1994) (citing 21 N.Y. Jur. 2d, Contracts § 53 at 470 (1982), and 2 Williston on Contracts § 6:10 at 68 (4th ed. 1990)). Where an offer is met with qualified conditions, “it is equivalent to a rejection and counteroffer.” Lamanna v. Wing Yuen Realty , 283 A.D.2d 165, 166 (1st Dept. 2001) (internal quotation marks and citation omitted), lv. denied , 96 N.Y.2d 719 (2001); accord Solartech Renewables, LLC v. Vitti , 156 A.D.3d 995, 997 (3d Dept. 2017). “Rejection by counteroffer extinguishes the offer and renders any subsequent acceptance thereof inoperative.” Jericho Group, Ltd. v. Midtown Dev., L.P. , 32 A.D.3d 294, 299 (1st Dept. 2006) (citation omitted). As noted, Galarneau involved the alleged sale of real property (the “subject property”). Plaintiff met with defendants Robert D’Andrea and Joseph D’Andrea in 2013 to discuss the transaction. Defendants were seeking $4 million for the subject property, which, under applicable zoning amendments, permitted the development of 50 lots. Plaintiff testified that he believed the price to be too high for 50 lots, but indicated that “it would be interesting if we could get enough lots on the property.”  Following this meeting and “probably two” subsequent phone conversations, plaintiff began researching the subject property and discovered that, approximately 10 years prior, the City of Saratoga Springs adopted a comprehensive plan that dramatically decreased the number of homes permitted to be developed on the subject property from 300 or 400 lots to 50 lots. Plaintiff testified that he met with Robert D’Andrea and Joseph D’Andrea and informed them of this discovery. Plaintiff also testified that he wanted to seek the necessary approvals to increase the number of lots by making a presentation to the Comprehensive Review Plan committee regarding the unfairness of the decrease in the number of developable lots that previously occurred. Robert D’Andrea and Joseph D’Andrea were allegedly supportive of the plan. Plaintiff testified that, after this meeting, he sent Robert D’Andrea and Joseph D’Andrea a letter, dated October 31, 2013, which recited what he believed to be the parties’ understanding of the terms of his purchase of the subject property. Among the terms was a purchase price of $4 million and a 1% interest rate, “to begin upon final approval.” Plaintiff testified that, although he never received any response regarding the letter, he started working on the project and invested significant time and resources, totaling $200,000, into an application to change the zoning and increase the number of permissible lots per acre. Ultimately, the application was denied. Robert D’Andrea testified that, after the zoning change was denied, he had a meeting with plaintiff wherein they discussed denial of the application and plaintiff’s belief that the subject property was worth only $3 million. Robert D’Andrea testified that “at that point I told we’re through, we would turn to another developer who had been sitting at the sidelines for a long time waiting.” Plaintiff commenced the action seeking specific performance or, alternatively, money damages under theories of breach of contract and equitable estoppel . Plaintiff also alleged a cause of action for unjust enrichment and sought a vendee’s lien on the subject property. Following defendants’ joinder of issue, the Supreme Court granted their motion to dismiss the complaint with the sole exception of plaintiff’s cause of action for breach of contract seeking specific performance by application of the doctrine of part performance. See 60 Misc. 3d 1205 , 2017 N.Y. Slip Op. 52007 , *1-*5 (Sup. Ct., Saratoga County 2017) ( here ), aff’d , 162 A.D.3d 1169 (3d Dept. 2018).  [Ed. Note: It is important to note that Galarneau involved an alleged oral agreement to buy and sell real property. Under General Obligations Law § 5-703 (3), an agreement to buy and sell real property “will be barred by the statute of frauds ‘unless the contract or some note or memorandum thereof is in writing and subscribed by the party to be charged therewith, or by his lawfully authorized agent.’” Sivos v. Eppich , 78 A.D.3d 1360, 1361 (3d Dept. 2010), quoting General Obligations Law § 5-703 (3). “Partial performance of an alleged oral contract will be deemed sufficient to take such contract out of the statute of frauds only if it can be demonstrated that the acts constituting partial performance are unequivocally referable to said contract.” Bowers v. Hurley , 134 A.D.3d 1191, 1193 (3d Dept. 2015) (citations and quotation marks omitted). In Galarneau , the Supreme Court held that plaintiff’s alleged partial performance – i.e. , that he pursued site development and re-zoning, and expended considerable funds in doing so – presented “sufficient evidence from which a trier of fact might conclude that plaintiff’s conduct explainable only by a reference to the oral contract.” (Citations omitted.)] In December 2018, the parties proceeded to a nonjury trial on plaintiff’s remaining cause of action. The Supreme Court, in a written decision, found that the evidence presented at trial did not support plaintiff’s claim that the parties entered into a contract and dismissed plaintiff’s remaining cause of action for specific performance. Plaintiff appealed. The Third Department affirmed the dismissal. The Court held that plaintiff failed to satisfy his burden of proving the existence of an oral agreement. Slip Op. at *1. The reason, said the Court, was because plaintiff failed to prove acceptance of the offer for the subject property. Id. The Court explained that “ lthough Robert D’Andrea and Joseph D’Andrea acknowledged that they offered plaintiff the opportunity to purchase the subject property for $4 million, plaintiff failed to accept the offer insofar as he testified that he conditioned his acceptance on obtaining zoning approval for additional lots on the property.” Id. By conditioning his offer, plaintiff effectively rejected the offer. Id. (citing Lamanna , 283 A.D.2d at 166 and Solartech Renewables , 156 A.D.3d at 997). “Moreover,” said the Court, “even if plaintiff’s condition was part of the original alleged agreement … plaintiff still failed to show acceptance of the offer,” because of “conflicting testimony as to whether the terms included in the October 31, 2013 letter complied with the terms of the offer.” Slip Op. at *1.  The Court explained that if the terms of the letter contradicted the offer “then the letter operated as a rejection and counteroffer because it effectively presented newly suggested terms.” Id. (citing Solartech Renewables , 156 A.D.3d at 997). The Court further explained that “although plaintiff … believed Joseph D’Andrea eventually agreed to the 1% interest rate, Joseph D’Andrea and Robert D’Andrea testified to the contrary, both stating that, during the meetings that predated the October 31, 2013 letter, Joseph D’Andrea clearly rejected this term.” Id. “Despite the rejection of this term,” observed the Court, “plaintiff’s October 31, 2013 letter include reference to it.” Id. “Additionally,” noted the Court, “the letter indicate that ‘ ayment to be made proportionately as each lot closes.’” Id. The Court found this term to be “problematic” because “there was no evidence presented that defendants would accept installment payments of any kind, which directly at odds with the letter.” Id. The Court further found the term to be “problematic” because “there no clear agreement as to how many lots would be developed on the subject property; therefore, there no clear agreement as to how many payments would be made to equal the $4 million offer.”  Accordingly, the Court declined to disturb the Supreme Court’s dismissal of the claim. Takeaway Galarneau teaches the importance of satisfying every element of a contract. Galarneau also demonstrates the consequence of responding to an offer with conditions – the courts will consider it to be the “equivalent to a rejection and counteroffer.” Lamanna , 283 A.D.2d at 166. Finally, Galarneau shows the impact conflicting testimony can have on the outcome of a trial and an appellate court’s deference to the credibility determinations of a trial court. AMCAT Global, Inc. v. Greater Binghamton Dev., LLC , 140 A.D.3d 1370, 1372 (3d Dept.), lv. denied , 28 N.Y.3d 904 (2016).

Recognizing the “continuing restrictions on the filing and prosecution of foreclosure matters in New York State arising during the course of the COVID-19 public health emergency,” on June 23, 2020, Chief Administrative Judge Lawrence K. Marks issued a memorandum (the “June 23 Memorandum”) on temporary protocols (the “Protocols”) for residential and commercial foreclosure proceedings.  The temporary protocols became effective as of June 24, 2020. The Protocols are as follows: 1. Filing of commencement documents in foreclosure proceedings must be made by NYSCEF or mail as per Administrative Order AO/121/20 (a copy of which is annexed as Attachment A to the Memorandum). 2. Commencement papers in commercial and residential mortgage foreclosure actions must include the following two additional documents as per Administrative Order AO/131/20 (a copy of which, with exhibits containing relevant forms, is annexed as Attachment  B to the Memorandum): a. an affirmation from the lender’s attorney attesting to familiarity and compliance with “various state and federal restrictions and qualifications on foreclosure proceedings”; and, b. an English and Spanish notice to “defendants-tenants … informing them that they may be eligible for an extension of time to respond to the complaint in light of legal directives related to the COVID-19 pandemic, and directing them to a website link for further information.” 3. Regardless of the filing of an answer, “further hearing of the case shall be stayed until such time as gubernatorial Executive Orders suspending statutory timetables for the prosecution of legal matters (i.e., 202.8, as extended by 202.14, 202.28, and 202.38) expire.”  The suspension of foreclosure matters (including auctions and most motion practice) (AO/68/20) will continue except for the following: a. initial and follow-up virtual settlement conferences may be held in matters in which all parties are represented by counsel; b. a motion for a judgment of foreclosure and sale can be made if the subject property is “vacant and abandoned”; and, c. a lender can move to discontinue a pending case. 4. The only motion that will be entertained or decided is a motion to discontinue a case and only in matters addressing vacant and abandoned property, will a court issue a judgment of foreclosure and sale. 5. Further directives will be issued “ t or before the expiration of the Governor’s Executive Order suspending statutory timetables.”

It is well settled that a plaintiff may not “dress up a breach-of-contract claim as a fraud claim.” Cohen v. Koenig , 25 F.3d 1168, 1173 (2d Cir. 1994) (internal quotation marks omitted). In prior posts, we referred to this principle as the duplication of claims doctrine ( here , here and here ).  In order for a tort claim to be actionable, there must be “a legal duty independent of the contract” that “has been violated.” Clark-Fitzpatrick, Inc. v. Long Is. R.R. Co. , 70 N.Y.2d 382, 389 (1987) (citations omitted).  This duty “must spring from circumstances extraneous to, and not constituting elements of, the contract, although it may be connected with and dependent upon the contract.” Id. In other words, “where the damages alleged were clearly within the contemplation of the written agreement . . . erely charging a breach of a ‘duty of due care,’ employing language familiar to tort law, does not, without more, transform a simple breach of contract into a tort claim.” Dormitory Auth. of the State of N.Y. v. Samson Constr. Co. , 30 N.Y.3d 704, 711 (2018) (internal quotation marks omitted) (quoting Clark-Fitzpatrick , 70 N.Y.2d at 390). Similarly, “where … a claim to recover damages for fraud is premised upon an alleged breach of contractual duties and the supporting allegations do not concern representations which are collateral or extraneous to the terms of the parties’ agreement, a cause of action sounding in fraud does not lie.” McKernin v. Fanny Farmer Candy Shops , 176 A.D.2d 233, 234 (2d Dept. 1991); see also Yenrab, Inc. v. 794 Linden Realty, LLC , 68 A.D.3d 755, 757 (2d Dept. 2009); Heffez v. L & G Gen. Constr., Inc. , 56 A.D.3d 526, 527 (2d Dept. 2008).  In Oceanview Assoc., LLC v. HLS Bldrs. Corp. , 2020 N.Y. Slip Op. 03519 (2d Dept. June 24, 2020) ( here ), the Appellate Division, Second Department considered the foregoing principles in affirming two orders issued by the motion court dismissing plaintiff’s causes of action to recover damages for negligence and fraud in an otherwise contract action. Oceanview was an action to recover damages for, inter alia , breach of contract arising from an allegedly defectively constructed parapet wall on the roof of a multi-unit residential building. The building was constructed in 2002. Plaintiff discovered the allegedly defective parapet wall in 2016. Plaintiff sued, among others, the defendant, HLS Builders Corp., which had served as the general contractor and superintendent of construction on the project, and its president, Henry Landsman (together, the “Landsman defendants”). Plaintiff asserted causes of action for, inter alia , breach of contract, negligence, and fraud. The Landsman defendants moved pursuant to CPLR § 3211(a) to dismiss the complaint. In an order dated October 11, 2018, the motion court, among other things, dismissed the negligence and fraud causes of action on the grounds that the allegations underlying those claims were the same as the allegations underpinning the breach of contract claim. Plaintiff moved for leave to renew, inter alia , its opposition to the motion to dismiss the fraud cause of action. In an order dated March 18, 2019, the motion court denied the motion on the ground that plaintiff did not offer any reasonable justification for failing to present the new facts on the prior motion. Plaintiff appealed both orders. The Court affirmed both orders. First, the Court held that plaintiff did not allege facts that would give rise to a duty independent of the duty imposed by the parties’ contract. Slip Op. at *2. Consequently, plaintiff could not “transform simple breach of contract into a tort claim.” Id. (quoting Dormitory Auth. , 30 N.Y.3d at 711). Second, the Court held that the fraud claim was duplicative of plaintiff’s breach of contract claim. Id. The Court found that the allegations upon which the fraud cause of action “were based were the same as those underlying” the breach of contract cause of action “and amounted to nothing more than a failure to perform under the contract.” Id. (citing Fromowitz v. W. Park Assoc., Inc. , 106 A.D.3d 950, 951-952 (2d Dept. 2013) (“Where a claim to recover damages for fraud is premised upon an alleged breach of contractual duties, and the allegations with respect to the purported fraud do not concern representations which are collateral or extraneous to the terms of the parties’ agreement, a cause of action sounding in fraud does not lie.”)). Under such circumstances, said the Court, a fraud claim does not lie. Id. Takeaway As indicated by the title of this post, a contract dispute cannot be dressed up in the language of fraud. Thus, where “a claim to recover damages for fraud is premised upon an alleged breach of contractual duties and the supporting allegations do not concern representations which are collateral or extraneous to the terms of the parties’ agreement, a cause of action sounding in fraud does not lie.” McKernin , 176 A.D.2d at 234. In Oceanview , plaintiff did not allege a duty independent of the duty to perform under the construction contract. As such, under the duplication of claims doctrine, its tort claims were dismissed.

In Pizzarotti, LLC v. Phipps & Co. , 2020 N.Y. Slip Op. 50696(U) (Sup. Ct., N.Y. County June 17, 2020) ( here ), Justice Gerald Lebovits of the Supreme Court, New York County, recently addressed a number of issues that we often examine, among them, a motion to dismiss on the basis of documentary evidence, breach of contract and common-law indemnification. We examine these issues and Pizzarotti below.  Dismissal on the Basis of Documentary Evidence Under CPLR § 3211(a), a party may make a motion to dismiss on the “ground that . . . a defense is founded upon documentary evidence.” The CPLR does not, however, define the phrase “documentary evidence.” For this reason, courts have described the phrase as “fuzzy” because “what is documentary evidence for one purpose, might not be documentary evidence for another.” Fontanetta v. Doe , 73 A.D.3d 78, 84 (2d Dept. 2010). To qualify as “documentary,” the content of the document must be “essentially undeniable and …, assuming the verity of and the validity of its execution, will itself support the ground on which the motion is based.” Amsterdam Hospitality Grp., LLC v. Marshall-Alan Assocs., Inc. , 120 A.D.3d 431, 432 (1st Dept. 2014), quoting David D. Siegel, Practice Commentaries, McKinney’s Cons. Laws of N.Y., Book 7B, C.P.L.R. C3211:10 at 22. Materials that clearly qualify as “documentary evidence” include judicial records, such as judgments and orders, as well as documents reflecting out of-court transactions, such as contracts, deeds, wills, and mortgages. Fontanetta , 73 A.D.3d at 84-85 (citation omitted).  Under CPLR § 3211(a)(1), dismissal is warranted only if the documentary evidence submitted “utterly refutes plaintiff’s factual allegations” ( Goshen v. Mutual Life Ins. Co. of N.Y. , 98 N.Y.2d 314, 326 (2002)), and “conclusively establishes a defense to the asserted claims as a matter of law.” Weil, Gotshal & Manges, LLP v. Fashion Boutique of Short Hills, Inc. , 10 A.D.3d 267, 270-71 (1st Dept. 2004). (internal quotation marks omitted). In other words, the documents relied upon must “definitely dispose of plaintiff’s claim.” Blonder & Co. v. Citibank, N.A. , 28 A.D.3d 180, 182 (1st Dept. 2006).  Breach of Contract The elements of a cause of action for breach of contract are (1) the formation of an agreement, (2) performance of the agreement by one party, (3) breach by the other party, and (4) damages. E.g. , Stonehill Capital Mgt., LLC v. Bank of the West , 28 N.Y.3d 439, 448 (2016); Morris v. 702 E. Fifth St. HDFC , 46 A.D.3d 478, 479 (1st Dept. 2007). All the elements must be pleaded to avoid dismissal. See Bonamii v. Straight Arrow Publs. , 133 A.D.2d 585 (1st Dept. 1987). With regard to the first element of a breach of contract claim ( i.e. , the formation of a contract), the plaintiff must establish an offer, acceptance of the offer, consideration, mutual assent and an intent to be bound. 22 N.Y. Jur. 2d, Contracts Section 9. “An offer is the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.” Restatement (Second) of Contracts § 24. Acceptance of an offer is effective if it clearly, unambiguously and unequivocally complies with the terms of the offer. King v King , 208 A.D.2d 1143, 1143-1144 (3d Dept. 1994) (citing 21 N.Y. Jur. 2d, Contracts § 53 at 470 (1982), and 2 Williston on Contracts § 6:10 at 68 (4th ed. 1990)). “ o constitute consideration, a performance or a return promise must be bargained for.” See Restatement (Second) of Contracts §71. Thus, the plaintiff must demonstrate some performance or a return promise that was bargained for by the defendant’s promise to fulfill the terms of the agreement. Kolchins v. Evolution Markets, Inc. , 128 A.D.3d 47, 59-60 (1st Dept. 2015). Mutual assent requires an agreement as to the essential terms and conditions of the agreement, and intent to be bound requires that such assent be sufficiently definite to assure that the parties are truly in agreement with respect to all material terms. Joseph Martin, Jr., Delicatessen v. Schumacher , 52 N.Y.2d 105, 109 (1981); Matter of Express Indus. & Term. Corp. v. New York State Dept. of Transp. , 93 N.Y.2d 584, 589 (1999). A “mere agreement to agree, in which a material term is left for future negotiations, is unenforceable.” Joseph Martin, Jr., Delicatessen , 52 N.Y.2d at 109. If the alleged contract “is not reasonably certain in its material terms, there can be no legally enforceable contract.” Edelman v. Poster , 72 A.D.3d 182, 184 (1st Dept. 2010). In addition, under the doctrine of definiteness, the court must be able to determine what, in fact, the parties agreed to in order to enforce a contract. Matter of 166 Mamaroneck Ave. Corp. v. 151 E. Post Rd. Corp. , 78 N.Y.2d 88, 91 (1991); Korff v. Corbett , 18 A.D.3d 248, 250 (1st Dept. 2005) (agreement language indicated meeting of minds, refers to consideration, specifies amount clearly agreed to). Common-Law Indemnification In the “classic indemnification case,” the one seeking indemnification “had committed no wrong, but by virtue of some relationship with the tort-feasor or obligation imposed by law, was nevertheless held liable to the injured party.” D’Ambrosio v. City of New York , 55 N.Y.2d 454, 461 (1982); Trustees of Columbia Univ. in City of N.Y. v. Mitchell/Giurgola Assoc. , 109 A.D.2d 449, 451 (1st Dept. 1985). Thus, “where one is held liable solely on account of the negligence of another, indemnification, not contribution, principles apply to shift the entire liability to the one who was negligent.” D’Ambrosio , 55 N.Y.2d at 462. Indemnification “may be based upon an express contract,” though it is “more commonly” implied “based upon the law’s notion of what is fair and proper as between the parties.” Mas v. Two Bridges Assocs. , 75 N.Y.2d 680, 690 (1990) (internal citations omitted). “ he key element of a common-law cause of action for indemnification is not a duty running from the indemnitor to the injured party, but rather is a separate duty owed the indenmitee by the indemnitor. The duty that forms the basis for the liability arises from the principle that everyone is responsible for the consequences of his own negligence, and if another person has been compelled to pay the damages which ought to have been paid by the wrongdoer, they may be recovered from him.” Raquet v. Braun , 90 N.Y.2d 177, 183 (1997) (internal quotation marks, citations, and ellipsis omitted.) Pizzarotti, LLC v. Phipps & Co. Background Pizzarotti arose from a dispute relating to an April 2018 construction contract between plaintiff, Pizzarotti LLC (“Pizzarotti”), as construction manager and defendant, Phipps & Co. (“Phipps”), as contractor.  Plaintiff contracted with Phipps to perform stone and tile work for the One Seaport Project in Manhattan. The total contract price was $2,142,417.54. Under the contract, Pizzarotti agreed to provide Phipps with an advance payment to cover the costs of purchasing materials, as long as Phipps provided a letter of credit to assure Pizzarotti that Phipps had the assets to repay the advance. Phipps could not provide that assurance and requested that Pizzarotti accept a letter of credit from defendant, SG Blocks, Inc. (“SG Blocks”). Plaintiff agreed. At the contract signing, Phipps further requested that the material-supply portion of the contract be assigned to SG Blocks. Plaintiff again agreed but requested that the assignment be reduced to writing. On May 30, 2018, the parties executed an assignment agreement. Under the agreement, SG Blocks agreed to supply the materials needed for the project and to provide a letter of credit to secure an advance payment from plaintiff. Phipps agreed to remain jointly and severally liable with SG Blocks for the performance of the contract’s supply obligations. Those obligations comprised $1,385,000 – nearly two-thirds of the contract’s total value. Plaintiff agreed to make payments through two-party checks made out to both Phipps and SG Blocks.  Plaintiff alleged that on June 5, it received assurances that SG Blocks’ bank would release a letter of credit, and therefore transferred an advance payment of $500,000 to SG Blocks and Phipps. In the weeks that followed, however, plaintiff repeatedly, but unsuccessfully, attempted to contact SG Blocks and Phipps to obtain the promised letter of credit and urged the parties to begin working on the project (or obtain proof that they had done so).  On June 22, Phipps informed Pizzarotti’s general counsel that “ s far as SG Blocks, it is unlikely we will be able to execute this contract together.” SG Blocks agreed and requested to be removed from future communications between the parties. In response, plaintiff continued to request that Phipps and SG Blocks fulfill the contract. On July 6, however, Phipps sent an email arguing that the contract was never in effect. On July 24, plaintiff sent Phipps and SG Blocks a notice to cure, giving them three business days to begin work and provide a letter of credit. Phipps and SG Blocks declined to do so. Plaintiff ultimately terminated the contract and assignment for cause on August 23, 2018.  In August 2018, Pizzarotti sued Phipps and SG Blocks for failing to perform under the contract. Phipps later cross-claimed against SG Blocks.  As against SG Blocks, plaintiff asserted a claim for breach of contract (for failing to perform its obligations under the assignment agreement) and a claim for trust diversion (for using the $500,000 advance payment for purposes other than performing work under the contract). Phipps counter-claimed against plaintiff. Phipps also cross-claimed against SG Blocks for (i) indemnity; (ii) common law contribution; (iii) fraud; (iv) negligence; (v) negligent misrepresentation, and (vi) breach of contract.  SG Blocks moved to dismiss both plaintiff’s amended complaint and Phipps’ cross-claims under CPLR § 3211 (a) (1) and CPLR § 3211 (a) (7).  The Court denied SG Blocks’ motion to dismiss plaintiff’s complaint but granted in part and denied in part the motion seeking dismissal of the cross-claims. The Court’s Decision A. Dismissal under CPLR § 3211 (a) (1) SG Blocks argued that the assignment agreement refuted plaintiff’s claims. SG Blocks asserted that the agreement did not identify consideration for SG Blocks’ alleged obligations under the agreement, thereby rendering the contract a nullity. In particular, SG Blocks argued that plaintiff and Phipps did not promise to pay SG Blocks for its obligation to provide supplies for the project, and therefore the assignment agreement lacked a mutuality of obligation. The court disagreed. The Court noted that the assignment agreement provided that all payments for the materials and supplies were to be made by two-party checks payable both to Phipps and SG Blocks. Slip Op. at *2. The Court further noted that, “consistent with the agreement,” “plaintiff issued a check for $500,000,” naming “both Phipps and SG Blocks as joint payees.” Id. The Court held that “ his exchange of something of value support the existence of adequate consideration.” Id. (citing Apfel v. Prudential-Bache Sec., Inc. , 81 N.Y.2d 470, 476 (1993). The Court rejected SG Blocks contention “that for consideration to exist, plaintiff would have had to take additional steps to ‘ensure[] that a certain portion of the monies due under the Pizzarotti-Phipps Contract would be owed and payable to SG Blocks.’” Id. The Court found that SG Blocks failed to provide any “authority supporting this proposition.” Id. The Court said that “even absent additional action by plaintiff, SG Blocks would have enforceable legal rights in checks issued by plaintiff under the contract to both Phipps and SG Blocks as joint payees – such as, for example, the $500,000 advance payment.” Id. at *2-*3. “Most pertinently,” explained the Court, “since a check is a negotiable instrument, SG Blocks’s endorsement would be required before a check from plaintiff to Phipps and SG Blocks jointly could be deposited with a bank.” Id. at *3 (citing Kryten Iron Works, Inc. v. Ultra-Tech Fabricators, Inc. , 228 A.D.2d 416, 416 (2d Dept. 1996). Thus, concluded the Court, “Phipps would have no legal right to make off with the check and take the full amount for itself.” Id. “Moreover,” observed the Court, “SG Blocks’s conduct before the execution of the assignment agreement indicate that SG Blocks understood that plaintiff would have an obligation to pay for the work that SG Blocks undertook – including preparing financial documents premised on SG Blocks making a profit on the supply portion of the contract.” Id. “At a minimum,” concluded the Court, “the assignment agreement standing alone not definitively refute plaintiff’s claims against SG Blocks, as required for dismissal under CPLR 3211 (a) (1).” Id. B. SG Blocks’ Motion to Dismiss Plaintiff’s Contract Claim The Court held that the complaint, taken as true, stated a cause of action for breach of contract. First, as discussed above, the Court found that the assignment agreement identified the consideration for SG Blocks’ obligations to provide materials for the project. Id. Second, the Court held that the complaint stated a cause of action to recover damages for trust diversion. Id. The Court explained that since the assignment agreement incorporated the terms of the contract (which provided in pertinent part that all funds paid to Phipps constituted trust funds to be used for purposes outlined in the contract), SG Blocks was “bound to use the advance payment of $500,000 for contractual purposes.” Id. Given plaintiff’s allegation that the $500,000 was not used for this intended purpose, plaintiff stated a claim for trust-diversion. Id. C. SG Blocks’ Motion to Dismiss Phipps’ Cross-Claims The Court held that Phipps’ cross-claim for common-law indemnification did not state a cause of action. Slip Op. at *4. Phipps argued that by executing the assignment agreement, SG Blocks agreed to indemnify them for “the full amount of culpability of any judgment that might be rendered against Phipps in the original action.” Id. However, “ ince the predicate of common-law indemnity is vicarious liability without actual fault on the part of the proposed indemnitee, it follow that a party who has itself actually participated to some degree in the wrongdoing cannot receive the benefit of the doctrine.” Id. (quoting Trustees of Columbia Univ. v. Mitchell/Giurgola Assoc. , 109 A.D.2d 449, 453 (1st Dept. 1985). Phipps’ liability in the main action, said the Court, would be primary not secondary. Id. Its liability “would flow instead from Phipps’s alleged failure to perform its own contractual obligations under the contract and the assignment agreement.” Id. Therefore, Phipps could “not receive the benefit of common-law indemnity.” Id. The Court held that Phipps’ cross-claim for common-law contribution also failed. Id. “Contribution is not available where the liability upon which the contribution claim is based derives solely from breach of contract.” Id. (citing Bd. of Educ. of Hudson City Sch. Dist. v. Sargent, Webster, Crenshaw & Folley , 71 NY2d 21, 28 <1987> .) “Here,” said the Court, “the potential liability of both Phipps and SG Blocks to plaintiff is for economic loss resulting from an alleged breach of contract. Common-law contribution is not available.” Takeaway CPLR § 3211(a)(1) can be a powerful tool to secure dismissal of a complaint. While not every document will demonstrate the absence of a cause of action, where the document is clear, unambiguous, and undeniable, and “utterly refutes” the claims asserted, dismissal is appropriate. In Pizzarotti , the assignment agreement did not “utterly refute” plaintiff’s breach of contract claim. In claiming a breach of contract ( i.e. , enforcing or attempting to enforce a contract), a plaintiff must plead the existence of a valid contract. In that regard, the plaintiff must demonstrate that the parties created a contract. Pizzarotti highlights this issue. The principle of common law, or implied, indemnification permits one who has been compelled to pay for the wrong of another to recover from the wrongdoer the damages it paid to the injured party. The party seeking indemnification must have delegated exclusive responsibility for the duties giving rise to the loss to the party from whom indemnification is sought and must not have committed actual wrongdoing itself. In Pizzarotti , the Court found that the doctrine did not apply because Phipps was alleged to be the actual wrongdoer.

Just recently, we wrote about the importance of pleading fraud with particularity ( here ).  As readers of this Blog know, when fraud is alleged, the plaintiff must plead the claim with particularity. Under CPLR § 3016 (b), the circumstances constituting fraud must be stated with sufficient detail “to permit a reasonable inference of the alleged conduct.” Pludeman v. Northern Leasing Sys., Inc. , 10 N.Y.3d 486, 491 (2008) (citation omitted). To satisfy the particularity requirement, the plaintiff must allege such facts as the time, place, and content of the defendant’s false representations, as well as the details of the defendant’s fraudulent acts, including when the acts occurred, who engaged in them, and what was obtained as a result. Put another way, the complaint must identify the “who, what, where, when and how” of the alleged fraud. Notwithstanding, the Court of Appeals has explained that CPLR § 3016(b) “should not be so strictly interpreted as to prevent an otherwise valid cause of action in situations where it may be impossible to state in detail the circumstances constituting a fraud.” Pludeman , 10 N.Y.3d at 491 (internal quotation marks and citation omitted). Therefore, at the pleading stage, a complaint need only “allege the basic facts to establish the elements of the cause of action.” Id. at 492. Thus, as noted, a plaintiff will satisfy CPLR 3016(b) when the facts permit a “reasonable inference” of the alleged misconduct. Id. Seems easy enough. But, the cases show (including those that we have examined in this Blog ( e.g. , here , here , and here )), plaintiffs often have their fraud claim dismissed because they failed to plead sufficient facts to permit a “reasonable inference” that the fraud took place. As today’s discussion shows, conclusory statements, dressed up as facts, will not suffice to satisfy CPLR § 3016(b). Patel v. Patel , 2020 N.Y. Slip Op. 31864(U) (Sup. Ct., N.Y. County June 15, 2020) ( here ) (dismissing fraudulent inducement claim because, inter alia , plaintiff failed to plead fraud with particularity). Patel v. Patel Patel involved a dispute over whether plaintiff, Mayuriben Patel, was entitled to a share of the profits generated by the sale and wind-down of M&D Pharmacy, LLC (“M&D”). According to defendant, Paresh Patel, who was alleged to be the managing member of M&D, plaintiff was not a member of the LLC and was, therefore, ineligible to receive any such distribution or to access information about the company’s books and records. M&D operated a pharmacy, known as Harlem Pharmacy, in New York City. Plaintiff, who claimed to be a member of M&D, alleged that defendant improperly reduced her profit share from 20% to 15%, and misappropriated her share of the proceeds generated from the sale of M&D’s assets in January 2018. Plaintiff said she was entitled to 20% of the profits from that sale, but had not received anything despite repeated demands, because defendant did not consider her to be a member of M&D eligible to receive any such distribution. According to Plaintiff, she became a member of M&D, with a 20% ownership interest in the company, following a December 17, 2012 transaction. Defendant initially held a 40% ownership interest, but acquired a third member’s interest around January 2015, giving him a total of 80% interest. No formal operating agreement was created for M&D. However, M&D’s Board of Directors and Shareholders allegedly passed resolutions, in January 2015, noting both defendant’s 80% stake and plaintiffs 20% share. As the controlling member of M&D, defendant had the power to direct and implement corporate decisions, including the payment of distributions to members. Beginning around 2016, defendant allegedly cut plaintiff’s share of the company’s dividends and profits from 20% to 15%, while increasing his own share. Plaintiff claims that she never consented to this reduction, nor did she receive any consideration for it. Between 2016 and 2018, defendant allegedly withheld about $60,000 of distributions from plaintiff. In December 2017, plaintiff and defendant, as the members of M&D, entered into a purchase agreement with Rite Aid of New York, Inc. (“Rite Aid”) to sell most of M&D’s assets to Rite Aid. The purchase agreement identified plaintiff and defendant as the sole members of M&D. Under the purchase agreement, Rite Aid agreed to pay M&D $483,000.00 for M&D’s files, records, and data. In addition, Rite Aid paid plaintiff and defendant $191,000.00 in exchange for a restrictive covenant barring them from operating a pharmacy within three miles of M&D’s Harlem location for another seven years. Rite Aid also agreed to pay an additional $1,000.00 for M&D’s “fixed assets”, and $94,762.87 for M&D’s “saleable inventory”. The sale was executed on January 16, 2018, at the M&D pharmacy. Defendant, as controlling member, took possession of all proceeds from the Rite Aid transaction, and allegedly promised plaintiff that he would pay her 20% of the profit. Plaintiff alleged, however, that, ever since the transaction closed, defendant had shut her out of M&D’s affairs. According to plaintiff, the sale proceeds were not deposited into M&D’s operating bank account, and plaintiff had not been allowed to inspect M&D’s financial records or have a say in the management of M&D. Plaintiff maintained that defendant repeatedly refused to give her a share of the proceeds from the sale or the wind-down of M&D and refused to provide an accounting of the proceeds.  Plaintiff filed suit on October 26, 2018, asserting a mix of individual and derivative claims against defendant: (1) accounting, (2) breach of fiduciary duty (derivative claim), (3) breach of fiduciary duty (individual claim), (4) conversion, (5) fraudulent inducement, and (6) judicial dissolution. Defendant sought dismissal of all claims on various grounds. Plaintiff opposed, and cross-moved for leave to file an amended complaint. The Court addressed plaintiff’s claims for an accounting, fraudulent inducement, and judicial dissolution. We examine the latter two claims. The Court’s Decision To state a claim for fraudulent inducement, “there must be a knowing misrepresentation of material present fact, which is intended to deceive another party and induce that party to act on it, resulting in injury.” GoSmile, Inc. v. Levine , 81 A.D.3d 77, 81 (1st Dept. 2010), lv. denied , 17 N.Y.3d 782 (2011); Lama Holding Co. v Smith Barney Inc. , 88 N.Y.2d 413, 421 (1996). And, as noted above, under CPLR § 3016 (b), the allegations must be stated with particularity. Eurycleia Partners, LP v. Seward & Kissel, LLP , 12 N.Y.3d 553, 558 (2009).  The Court found that the allegations in the complaint failed to set forth “the basic facts to establish the elements of a fraudulent inducement claim.” Slip Op. at *9. The Court noted that plaintiff failed to allege any specificity with regard to her claim that “Defendant represented to that M&D was going to distribute all of the proceeds from the sale of M&D’s assets.” In particular, the Court said that plaintiff failed “to specify, among other things, (i) when Defendant made this representation (whether it was made before or after the sale to Rite Aid, for example), (ii) how Defendant made it, (iii) whether the representation included a promise to distribute to Plaintiff a particular share of the profits, and (iv) how Plaintiff detrimentally relied upon the representation (the Complaint alleges only that the statement was made ‘with the intention of inducing reliance’).” Id. *9-*10. In other words, the Court found that plaintiff failed to provide the who, what where, and how of the fraud. The Court also held that plaintiff failed to “establish[] that , at the time of making the promissory representation,” did not intend “to honor the promise.” Id. at *10. “General allegations of lack of intent to perform are insufficient”, said the Court. Id. (quoting Perella Weinberg Partners LLC v. Kramer , 153 A.D.3d 443, 449 (1st Dept. 2017) (internal quotation marks omitted)); Meiterman v Corp. Habitat , 173 A.D.3d 593, 594 (1st Dept. 2019). The Court concluded that “statements of future intent, without more, are not actionable as fraud claims.” Id. (citing Lincoln Place LLC v. RVP Consulting, Inc. , 16 A.D.3d 123, 124 (1st Dept. 2005); Cronos Grp. Ltd. v. XCOMIP, LLC , 156 A.D.3d 54, 62-63 (1st Dept. 2017). With regard to the judicial dissolution claim, the Court dismissed it for particularity reasons, as well.  In the absence of an operating agreement, the rights, duties and obligations of an LLC member are governed by the default provisions of New York’s Limited Liability Company Law (“LLCL”). See , e.g. , Matter of Eight of Swords, LLC , 96 A.D.3d 839 (2d Dept. 2012); Matter of 1545 Ocean Ave., LLC , 72 A.D.3d 121 (2d Dept. 2010). Under Section 702 of the LLCL, a court may dissolve a company “whenever it is not reasonably practicable to carry on the business in conformity with the articles of organization or operating agreement.” When there are no articles or operating agreement, as in Patel , courts look to the stated purposes for which the LLC was formed to determine if they are being achieved and whether the company’s finances remain feasible. E.g. , Matter of Eight of Swords, LLC , 96 A.D. 3d 839, 840 (2d Dept. 2012). The Court found that systematic exclusion “from the operation and affairs of the company by defendant” was “insufficient to establish that it no longer ‘reasonably practicable’ for the company to carry on its business, as required” by LLCL § 702. Slip Op. at *10-*11 (quoting Doyle v. Icon, LLC , 103 A.D.3d 440, 440 (1st Dept. 2013) (internal quotion marks omitted)). Moreover, said the Court, plaintiff’s “conclusory allegations … that the sale of M&D’s assets to Rite Aid compel judicial dissolution” were insufficient to satisfy LLCL § 702. Id. (citation omitted). Takeaway In a prior post, we quoted Stephen King as saying “the truth is in the details. No matter how you see the world …, the truth is in the details.” ( Here .) We said that the “quote fairly sums up the pleading requirement that all plaintiffs must satisfy when alleging a fraud.” The reason: courts require plaintiffs to provide sufficient details of the alleged misconduct to support a reasonable inference that the allegations of fraud are true. For this reason, conclusory allegations will not suffice. Eurycleia Partners , 12 N.Y.3d at 558. Neither will allegations based on information and belief. See Facebook, Inc. v. DLA Piper LLP (US) , 134 A.D.3d 610, 615 (1st Dept. 2015). Plaintiffs must describe the “who, what, when, where, and how” of the fraud, or “the first paragraph of any newspaper story.” United States ex rel. Lubsy v. Rolls-Royce Corp. , 570 F.3d 849, 853 (7th Cir. 2009) (internal quotation marks omitted). In the absence of such detail, as in Patel , even under the reasonable inference standard of the CPLR, a plaintiff cannot maintain a fraud claim.

As noted on numerous occasions in this BLOG, the New York State Legislature has responded to the residential foreclosure crisis by promulgating a series of rules designed to protect residential homeowners.  These rules, however, place additional burdens on foreclosing lenders and courts throughout New York State have demonstrated little sympathy for foreclosing lenders that fail to follow these rules. For example, RPAPL 1304 requires that at least ninety days prior to commencing legal action against a borrower with respect to a “home loan” (as defined in the relevant statutes), a lender must: send written notice to the borrower by certified and regular mail that the loan is in default; provide a list of approved housing agencies that provide free or low-cost counseling; and, advise that legal action may be commenced after ninety days if no action is taken to resolve the matter.  This BLOG has addressed issues related to RPAPL 1304 on numerous occasions.  < HERE ,=">HERE," HERE=">HERE"> RPAPL 1303 , requires that the plaintiff in a residential mortgage foreclosure action provide certain borrowers (and tenants in dwelling units subject to foreclosure) with specific written notices of the foreclosure process.  The specific text of the RPAPL 1303 notice is set forth in the statute.  See RPAPL 1303(3) (for mortgagors) and 1303(5) (for tenants).   In addition, RPAPL 1303(2), which provides for the delivery and appearance of the notice to mortgagors, provides: The notice to any mortgagor required by paragraph (a) of subdivision one of this section shall be delivered with the summons and complaint.  Such notice shall be in bold, fourteen-point type and shall be printed on colored paper that is other than the color of the summons and complaint, and the title of the notice shall be in bold, twenty-point type.  The notice shall be on its own page. ( See RPAPL 1303(4) for the requirements for delivery and appearance of notices to tenants.) Proper service of the RPAPL 1303 notice is critical because it “is a condition precedent to the commencement of a foreclosure action, and noncompliance mandates dismissal of the complaint.”  Onewest Bank, N.A. v. Mahoney , 154 A.D.3d 770, 771 (2 nd Dep’t 2017) (citations omitted).  Further, it is the lender’s burden to demonstrate compliance with RPAPL 1303.  U.S. Bank National Assoc. v. Ahmed , 174 A.D.3d 661, 664 (2 nd Dep’t 2019) (citations omitted).   In Onewest, the Court found that the “plaintiff further established its prima facie entitlement to judgment as a matter of law by … affidavits of service attesting to the proper service of notices that complied with RPAPL 1303.”  Onewest , 154 A.D.3d at 772.  The Court found unavailing, the Onewest mortgagor’s “bare and unsubstantiated denial of receipt of the RPAPL 1303 notice was insufficient to rebut the presumption of proper service created by the process server’s affidavits of service.  Onewest , 154 A.D.3d at 772 (citation omitted). A similar issue was decided in LNV Corp. v. Sofer , 171 A.D.3d 1033 (2 nd Dep’t 2019).  While the LNV Court denied summary judgment to the lender for different reasons, compliance with RPAPL 1303 was found to be proper.  In that regard, the LNV Court stated: Further, contrary to the defendant’s contention, the plaintiff established, prima facie, that it provided notice in compliance with RPAPL 1303 by submitting the process server’s affidavit of service on the defendant, in which the process server stated that he served the summons and complaint, together with a “1303 NOTICE–Help for Homeowners in Foreclosure in bold fourteen-point type and printed on colored paper, and the title to the notice printed in twenty-point type in compliance with RPAPL Sect 1303”. The statement in the affidavit of service that the notice was on colored paper was sufficient to comply with the language in the statute stating that the notice shall “be printed on colored paper that is other than the color of the summons and complaint”. Moreover, the defendant’s bare and unsubstantiated denial of receipt of the RPAPL 1303 notice, without more, was insufficient to rebut the presumption of service created by the process server’s affidavit. LNV Corp. , 171 A.D.3d at 1036 (citations omitted). In Flagstar Bank, FSB v. Hart , decided by the Second Department on June 10, 2020, the Court reversed the grant of summary judgment to the foreclosing lender.  After setting forth the requirements of RPAPL 1303, the Court determined that the lender failed to demonstrate compliance and stated: Here, in support of its motion, the plaintiff submitted the process server’s affidavit indicating that a notice was served with the summons and complaint. However, the plaintiff did not submit a copy of the RPAPL 1303 notice allegedly served, and the process server made no averments that the notice served complied with the requirements of RPAPL 1303 concerning content and form. The plaintiff, therefore, failed to demonstrate, prima facie, that it complied with RPAPL 1303 .

In today’s post we examine, SHIR Capital, LLC v. Fortress Credit Advisors LLC , 2020 N.Y. Slip Op. 31825(U) (Sup. Ct., N.Y. County June 11, 2020) ( here ), a case involving an alleged fraud, breach of fiduciary duty, and misappropriation of trade secrets.  We chose to SHIR Capital because of its common theme – pleading with particularity. As discussed below, pleading fraud, breach of fiduciary duty and the misappropriation of trade secrets requires particularity or specificity. The failure to provide the requisite particularity or specificity will, as in SHIR Capital , result in the dismissal of the claim. SHIR Capital, LLC v. Fortress Credit Advisors LLC  Background SHIR Capital arose from an aborted joint venture to purchase an apartment building in Austin, Texas. Plaintiff, SHIR Capital, LLC (“SHIR Capital”), initially explored the potential transaction and entered into a contract with the seller but needed a co-investor to close the deal. To that end, SHIR Capital was introduced to defendant, Fortress Credit Advisors LLC (“Fortress”), by an intermediary, defendant, CBRE Capital Markets, Inc. (“CBRE”). SHIR Capital and Fortress then entered into a letter agreement, which set out the framework for further discussions of a joint venture. But the joint venture never materialized. SHIR Capital decided to terminate its contract with the seller – the basis for the letter agreement – rather than pay an additional fee and lose its deposit. A few weeks later, SHIR Capital learned that Fortress, with the aid of CBRE, had purchased the property for itself. SHIR Capital claimed that Fortress never intended to partner with it, but feigned interest in order to steal SHIR Capital’s business strategy and close the deal for itself. And CBRE, while purporting to act in SHIR Capital’s interest as “broker”, allegedly concealed its connections to Fortress and helped orchestrate the fraud against SHIR Capital.  SHIR Capital alleged six causes of action, including fraud, breach of fiduciary duty, and misappropriation of trade secrets. Fortress (with CREF3 Copper Creek Owner LLC (“CREF3”), the entity that Fortress allegedly created for purposes of the acquisition) and CBRE moved to dismiss the complaint in its entirety. The Court granted the motions. We examine the decision with regard to the fraud, breach of fiduciary duty and misappropriation of trade secrets causes of action. A. Claims Against CREF3 The Court dismissed all claims against CREF3 because the complaint contained no specific allegations of wrongdoing by CREF3. Instead, plaintiff “impermissibly lumped” CREF3 together with Fortress. RKA Film Fin., LLC v. Kavanaugh , 171 A.D.3d 678, 678 (1st Dept. 2019). Since plaintiff failed to allege that CREF3 made any misrepresentations, was a party to “any contract … that could give rise to breach of the duty of good faith and fair dealing,” or misappropriated any confidential information, the Court held that the complaint was deficient as against CREF3. Slip Op. at *6. here).=">here)."> B. Fraud 1 . Fraud Claim Against Fortress To state a claim for fraud, a plaintiff must allege “a misrepresentation or a material omission of fact which was false and known to be false by 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.” Lama Holding Co. v. Smith Barney Inc. , 88 N.Y.2d 413, 421 (1996). Importantly, “ o fulfill the element of misrepresentation of material fact, the party advancing the claim must allege a misrepresentation of present fact rather than of future intent.” Perella Weinberg Partners LLC v. Kramer , 153 A.D.3d 443, 449 (1st Dept. 2017). “General allegations of lack of intent to perform are insufficient; rather, facts must be alleged establishing that the adverse party, at the time of making the promissory representation, never intended to honor the promise.” Id. ; Meiterman v. Corp. Habitat , 173 A.D.3d 593, 594 (1st Dept. 2019). Significantly, “ claim rooted in fraud must be pleaded with the requisite particularity under CPLR 3016 (b).” Eurycleia Partners, LP v. Seward & Kissel, LLP , 12 N.Y.3d 553, 559 (2009). If “sufficient factual allegations of even a single element are lacking,” the claim must be dismissed. RKA Film Fin., LLC v Kavanaugh , 2018 WL 3973391, at *3 (Sup. Ct., N.Y. County 2018) (quoting Shea v. Hambros PLC , 244 A.D.2d 39, 46 (1st Dept. 1998)). The Court held that SHIR Capital failed to allege, with the requisite particularity, any actionable misrepresentations of fact attributable to Fortress. The Court noted that the “fraud claim against Fortress hinge on Fortress’s alleged misrepresentation that it ‘was interested in partnering with SHIR Capital.’” Slip Op. at *7. The Court explained that SHIR Capital merely “surmise ” that “Fortress must have been misleading SHIR” “because Fortress ultimately did not partner with it, and promptly purchased the Property without it.” The Court concluded that “ his line of reasoning, premised on a ‘conclusory statement of intent’, was insufficient to support a fraud claim as a matter of law.” Id. at *7-*8 (citing Zanett Lombardier, Ltd. v Maslow , 29 A.D.3d 495 (1st Dept 2006).  Fortress’s interest in partnering with SHIR Capital was memorialized in the Letter Agreement, and Fortress is not alleged to have breached any of the terms in that Agreement. When SHIR Capital terminated the PSA, moreover, Fortress was free to pursue its own transaction with Seller. The speed with which it exercised that right, without more, does not evince “a present intent to deceive.” Id. at *8 (citation omitted).  The Court rejected SHIR Capital’s argument that other alleged misrepresentations were statements of present fact, stating that they “reflect vague promises about future intentions.” Id. (citations omitted).  “In addition,” explained the Court, “the fraud claim include distinct allegations of fraudulent concealment, which center on CBRE’s failure to disclose a prior relationship with Fortress.” Id. at *9. “Those allegations fail to state a cause of action against Fortress,” concluded the Court, “because SHIR Capital not allege any duty on Fortress’s part to disclose that information. Id. (citing P.T Bank Cent. Asia v. ABN AMRO Bank NV , 301A.D.2d 373, 376 (1st Dept. 2003); Sebastian Holdings, Inc. v. Deutsche Bank AG , 78 A.D.3d 446, 447 (1st Dept. 2010) (“lack of a fiduciary relationship between the parties is fatal to plaintiffs claim[] for ... fraudulent concealment”). 2. Fraud Claim Against CBRE The Court dismissed the fraud claim against CBRE “ or similar reasons” – “the alleged misrepresentations ascribed to CBRE consist of statements about future intent and events outside the control of the Defendants ….” Id. at *9. The Court also held that the fraud claim against CBRE was “duplicative of the breach of fiduciary duty claim asserted against it.” Id. at *10. (citing Interventure 77 Hudson LLC v. Falcon Real Estate Inv. Co., LP , 172 A.D.3d 481, 481-82 (1st Dept. 2019); Pai v. Blue Man Grp. Pub., LLC , 151 A.D.3d 456 (1st Dept. 2017). “Both claims arise from the same factual allegations and seek the same damages,” said the Court. Id. (citations omitted). C. Breach of Fiduciary Duty Against CBRE To plead a breach of fiduciary duty claim, “a plaintiff must allege that the defendant owed him a fiduciary duty, that the defendant committed misconduct, and that the plaintiff suffered damages caused by that misconduct.” NRT NY, L.L.C. v. Morin , 147 A.D.3d 589, 589 (1st Dept. 2017). The Court held that SHIR Capital failed to state a cause of action for breach of fiduciary duty against CBRE. The Court explained that the Complaint failed to establish that CBRE owed a fiduciary duty to SHIR Capital. The Court noted that CBRE was brought in “to identify potential investors in return (ultimately) for a fee if the transaction were successful.” Id. at *11. “That is the prototypical role of a ‘finder,’” said the Court, “which generally does not create a ‘relationship of higher trust.’” Id. The complaint, concluded the Court, was devoid of any allegations that SHIR Capital “retained CBRE to act as a broker or to provide expert knowledge or advice in negotiating the joint venture.” Id.   “Placing the label ‘broker’ on CBRE’s alleged functions,” said the Court, “does not change the result.” Id. at *12. C. Trade Secret Misappropriation Against Fortress “To prevail on a claim for misappropriation of trade secrets, a plaintiff must demonstrate: (1) that it possessed a trade secret, and (2) that the defendants used that trade secret in breach of an agreement, confidential relationship or duty, or as a result of discovery by improper means.” Schroeder v. Pinterest Inc. , 133 A.D.3d 12, 27 (1st Dept. 2015). The Court held that “ or at least two reasons, SHIR Capital fail to allege a cause of action for misappropriation of trade secrets. First,” said the Court, “SHIR Capital failed to identify the trade secrets with sufficient specificity.” Slip Op. at *14 (citations omitted). The Court found that plaintiff merely alleged vague ideas and strategies concerning due diligence. Id. “Absent from the pleadings a description of any specific concept or strategy that elevate these routine due diligence materials to the status of trade secrets.” Id. (citations omitted). Second, SHIR Capital failed “to allege the requisite novelty or originality that would qualify for trade secret protection.” Id. at *15. “A trade secret is any formula, pattern, device or compilation of information which is used in one’s business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it.” Schroeder , 133 A.D.3d at 27 (citation omitted). The Court held that “the work performed by SHIR Capital may have been laborious, but it was not novel.” Id. Consequently, the Court dismissed SHIR Capital’s claim for misappropriation of trade secrets.

What law should apply? In most cases, answering the question is more art than science.  In contract cases, especially in complex commercial matters, the agreement at issue often (though not always) contains a choice of law provision. In that circumstance, the agreement will provide that any disputes related to the contract and/or its performance will be litigated under the laws of the jurisdiction identified in the contract. When there is no choice of law provision, a more complicated analysis is employed by the court – one that is beyond the scope of this article. In tort cases, such as the one examined below, the choice of law requires a complex analysis that, under New York law, focuses on the interests of the competing jurisdictions in the outcome of the litigation.  Padula v. Lilarn Props. Corp. , 84 N.Y.2d 519, 521 (1994). The jurisdiction with the greater interest “is determined by an evaluation of the ‘facts or contacts which … relate to the purpose of the particular law in conflict.’” Id. (quoting Schultz v. Boy Scouts , 65 N.Y.2d 189, 197 (1985)). “Two separate inquiries are thereby required to determine the greater interest: (1) what are the significant contacts and in which jurisdiction are they located; and, (2) whether the purpose of the law is to regulate conduct or allocate loss.” Id. (citing Schultz , 84 N.Y.2d at 198). In considering these inquiries, the New York Court of Appeals explained: hen the conflicting rules involve the appropriate standards of conduct, rules of the road, for example, the law of the place of the tort “will usually have a predominant, if not exclusive, concern” … because the locus jurisdiction’s interests in protecting the reasonable expectations of the parties who relied on it to govern their primary conduct and in the admonitory effect that applying its law will have on similar conduct in the future assume critical importance and outweigh any interests of the common-domicile jurisdiction.  Id. (citing Schultz , 65 N.Y.2d at 198; see also Cooney v Osgood Mach. , 81 N.Y.2d 66, 72). Therefore, “ f conflicting conduct-regulating laws are at issue, the law of the jurisdiction where the tort occurred will generally apply because that jurisdiction has the greatest interest in regulating behavior within its borders.” Id. at 522 (citing Cooney , 81 N.Y.2d at 72). When the jurisdictions’ conflicting rules relate to allocating losses that result from tortious conduct, “rules such as those limiting damages in wrongful death actions, vicarious liability rules, or immunities from suit, considerations of the State’s admonitory interest and party reliance are less important.” Schultz , 65 N.Y.2d at 198.  “Under those circumstances, the locus jurisdiction has at best a minimal interest in determining the right of recovery or the extent of the remedy in an action by a foreign domiciliary for injuries resulting from the conduct of a codomiciliary that was tortious under the laws of both jurisdictions.” Id. (citations omitted). Fraudulent conveyance laws are conduct regulating. Atsco Ltd. v. Swanson , 29 A.D.3d 465, 466 (1st Dept. 2006). See also GFL Advantage Fund, Ltd. v. Colkitt , 2003 WL 21459716, at *3 (S.D.N.Y. 2003). As such, “the law of the jurisdiction where the tort occurred will generally apply.…” Padula , 84 N.Y.2d at 522. See also Schultz , 65 N.Y.2d at 198 (citations omitted).  Moreover, since “the purpose of fraudulent conveyance laws is to aid creditors who have been defrauded by the transfer of property,” consideration of the residency of the parties, particularly the creditors, is also required to determine their reasonable expectations. Atsco , 29 A.D.3d at 466; see also Padula , 84 N.Y.2d at 521. Recently, the Appellate Division, First Department considered the foregoing principles in Matter of Wimbledon Fund, SPC (Class TT) v. Weston Capital Partners Master Fund II, Ltd. , 2020 N.Y. Slip Op. 03279 (1st Dept. June 11, 2020) ( here ). Wimbledon Fund, SPC (Class TT) v. Weston Capital Partners Master Fund II, Ltd. Background Petitioner, The Wimbledon Fund, SPC (“Class TT”), sought an order, pursuant to CPLR § 5225 and § 5227, directing Weston Capital Partners Master Fund II, Ltd. (“Weston”) and Wimbledon Financing Master Fund, Ltd. (“WFMF”) (together, “Respondents”) to turn over property and money equal to $3,525,675, plus applicable interest, in partial satisfaction of a $23,051,971.31 judgment petitioner obtained against Swartz IP Services Group Inc. a/k/a Advisory IP Services Inc. (“SIP”). Petitioner, a segregated portfolio in The Wimbledon Fund, SPC, alleged that it was the victim of a fraudulent scheme that caused its investors to lose more than $17 million. Albert Hallac (“Hallac”), Jeffrey Hallac (“Jeffrey”), and Keith Wellner (“Wellner”) managed Class TT through Weston Capital Asset Management, LLC and its related affiliate Weston Capital Management LLC. According to the petition, Class TT’s investment managers, including Hallac and Wellner, caused Class TT to transfer $17.7 million to SIP pursuant to a Note Purchase Agreement (the “NPA”), dated November 14, 2011, “which ostensibly allowed Class TT to purchase so-called ‘reference notes’ issued by SIP.” However, Class TT’s monies were not invested in accordance with the NPA. Once Class TT’s funds were received, Hallac, Wellner and David Bergstein (“Bergstein”) (SIP’s president, secretary and 25-50% shareholder) authorized a series of transfers to third parties, allegedly without any consideration to SIP or Class TT. These transfers resulted in the depletion of SIP’s bank accounts shortly after it received Class TT’s funds, rendering it either insolvent or with an unreasonably minimal amount of capital. Petitioner alleged that this scheme benefitted Partners II, WFMF’s predecessor in interest and a fund managed by Hallac, because it received $3,525,675 of Class TT’s funds through three fraudulent transfers from SIP. Bank records showed that the money was wired to Partners II. SIP did not owe any debts to Partners II and no consideration was received in exchange for the funds. Instead, the funds were transferred to Partners II to repay a loan that Partners II had made to Arius Libra with SIP acting as the conduit for the effectuation of the alleged fraudulent transfers. Arius Libra was allegedly a sham entity in which SIP had no interest. Hallac, Jeffrey, and Wellner served as directors of Arius Libra, along with Bergstein and Kia Jam. Based on this scheme, the Securities and Exchange Commission (“SEC”) filed complaints against Bergstein, Hallac, and Wellner and the United Stated Attorney for the Southern District of New York brought criminal charges against them. Bergstein was found guilty after a jury trial and was sentenced to 8 years. Hallac and Wellner both pleaded guilty to criminal fraud. During his plea allocution, Hallac admitted to participating in “a scheme to defraud Weston investors” by, among other things, failing to disclose to investors the transfer of moneys from one investment fund to benefit the investors of another fund. Moreover, Hallac specifically admitted to using Class TT’s $17.7 million investment to repay part of the Partners II loan. Weston moved, pursuant to CPLR §§ 3211 (a)(1), (2), (3), (5) and (7), to dismiss the petition. The Court denied the motion in its entirety. The First Department reversed. The Court’s Decision Below, we examine a portion of the motion court’s decision ( i.e. , the portions of the decision addressing champerty, unclean hands and choice of law) and the First Department’s consideration and review of the decision. Champerty Weston argued that the settlement agreement in a related action rendered Bergstein an “undisclosed petitioner” in the action due to his contribution of settlement proceeds to be used to finance actions such as the one before the motion court and, therefore, the action must be dismissed based on champerty.  In opposition, Class TT contended that it is the only petitioner in the action; Bergstein was not a party to the action nor did he have any control over the litigation. Judiciary Law § 489, New York’s champerty statute, provides, in relevant part: No person ... shall solicit, buy or take assignment of, or be in any manner interested in buying or taking an assignment of bond, promissory note, bill of exchange, book debt, or other thing in action, or any claim or demand, with the intent and for the purpose of bringing an action or proceeding thereon ... The purpose of the champerty doctrine is “to prevent or curtail the commercialization of or trading in litigation.” Trust for Certificate Holders of Merrill Lynch Mtge. Invs., Inc. v. Love Funding Corp. , 13 N.Y.3d 190, 198 (2009) (quotation marks and citation omitted). “ hile has been willing to find that an action is not champertous as a matter of law ... it has been hesitant to find that an action is champertous as a matter of law.” Bluebird Partners, L.P. v. First Fidelity Bank, N.A. , 94 N.Y.2d 726, 734-35 (2000) (emphasis in original) (internal citations omitted).  To establish champerty, the plaintiff must demonstrate “that the acquisition made with the intent and for the purpose (as contrasted to a purpose) of bringing an action or proceeding.” Id. at 736. The motion court held that Bergstein was not an undisclosed petitioner and, therefore, the proceeding was not champertous. The motion court observed that “ f Bergstein was assigned the claim and commenced th action in his own name, then dismissal for champerty would have been appropriate.” However, concluded the motion court, Class TT was the petitioner, not Bergstein. See Gowen v. Helly Nahmad Gallery, Inc. , 60 Misc. 3d 963, 996-998 (Sup. Ct., N.Y. County 2018).  The First Department agreed with the motion court. Slip Op. at *1. Unclean Hands Weston contended that petitioner was “an association-in-fact consisting of TT and Bergstein.” As such, Bergstein could not maintain the action because he had unclean hands. The motion court disagreed, reiterating the fact that Bergstein was not the petitioner in the action. The motion court noted that even if Bergstein were the petitioner, unclean hands did not furnish a ground for dismissal. Unclean hands is equivalent to in pari delicto and such an argument “is not a defense to a fraudulent conveyance suit.” Wimbledon Financing Master Fund, Ltd. v. Wimbledon Fund , 162 A.D.3d 433, 434 (1st Dept. 2018) (quoting FIA Leveraged Fund Ltd. v. Grant Thronton LLP , 150 A.D.3d 492, 497 (1st Dept. 2017)).  The First Department agreed with the motion court. Slip Op. at *1. Choice of Law-Fraudulent Conveyance Although the First Department agreed with the motion court on the foregoing issues, it nevertheless reversed on the choice of law issue.  Weston argued that Cayman law applied to the fraudulent conveyance claim because both Class TT and Partners II were domiciled in the Cayman Islands. Weston further argued that the claims must be dismissed because the elements of fraudulent conveyance under Cayman law cannot be satisfied. In Weston’s amended motion to dismiss, however, Weston stated that although the parties disagreed about the applicable law, New York law should apply because they were the same.  In opposition, Class TT argued that fraudulent conveyance is a conduct-regulating tort and that for such torts, the court must apply the law of the jurisdiction where the tort occurred. Class TT also claimed that Weston’s amended motion, which relied on New York law, should be deemed a waiver of its argument that Cayman law applied. In light of Weston’s concession that “New York and Cayman law are the same”, the motion court held that it was unnecessary to employ a choice of law analysis.  The First Department disagreed. The Court found that “ ontrary to the motion court’s finding, Weston did not concede that Cayman and New York law were the same with respect to fraudulent conveyance claims.” Slip Op. at *1. “Indeed,” said the Court, “on appeal, it is not disputed that Cayman Islands and New York law differ.” Id. at *1-*2.  The Court explained that using a traditional conflict of laws analysis ( Padula , 84 N.Y.2d at 521, and Atsco Ltd. v. Swanson , 29 A.D.3d 465, 466 (1st Dept. 2006), citing Cooney v. Osgood Mach. , 81 N.Y.2d 66, 72 (1993)), Cayman law applied to the fraudulent conveyance claim: Applying these principles, the law of the Cayman Islands applies to petitioner’s fraudulent conveyance claim. Petitioner, who is the creditor allegedly injured by the fraudulent transfer of the funds at issue, is a Cayman Islands domiciliary. Moreover, petitioner is seeking the return of funds which were allegedly fraudulently transferred to Weston, also a Cayman Islands domiciliary. Additionally, the Cayman Islands has the greatest interest in protecting the reasonable expectations of its residents, both petitioner and respondent Weston, who relied on Cayman Islands law to govern their conduct. Although SIP, the transferor of the funds, is domiciled in Texas, and the bank account into which the funds were transferred is located in New York, it is the Cayman Islands that has the most significant contacts with the matter in dispute. Thus, Cayman Islands law should apply. Slip Op. at *2. “Upon application of Cayman Islands law,” the Court held that “petitioner’s fraudulent conveyance claim should have been dismissed on the ground that it was not sufficiently alleged in the petition.” The Court explained that “to make out a cause of action under the Cayman Islands’ Fraudulent Dispositions Law, petitioner must establish, inter alia , that SIP disposed of property with an intent to defraud and at an undervalue.” Under Cayman law, “intent to defraud means an intention of a transferor wilfully to defeat an obligation owed to a creditor.” Id.   The Court found that the “petition fail to allege that SIP transferred money to Weston with the requisite intent to defraud petitioner.” Id. Takeaway In today’s global economy, litigation among its participants raises a host of complex issues. Among them, “What law should apply”?  Every case concerns a unique set of facts and circumstances that make it difficult to answer the question. Indeed, as the title of this article indicates, deciding the law to apply can be a thorny endeavor. In New York, litigants and the courts must examine the issue through an interest analysis test – that is, a test in which the court determines the jurisdiction with the greater interest in protecting the expectations of the parties who relied on the jurisdiction’s laws and the admonitory effect that applying such law will have on similar conduct in the future. In doing so, the court must consider: “(1) what are the significant contacts and in which jurisdiction are they located; and, (2) whether the purpose of the law is to regulate conduct or allocate loss.” Padula , 84 N.Y.2d at 521. In Wimbledon Fund , the analysis favored application of Cayman Islands law.