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By: Jonathan H. Freiberger In today’s BLOG we will discuss Tri-Rail Designers & Builders, Inc. v. Concrete Superstructures, Inc. , a case decided on November 12, 2025, by the Appellate Division, Second Department. In Tri-Rail , the Court decided a “question which has not been directly addressed” in the Second Department involving the impact of non-compliance with the Servicemembers Civil Relief Act (f/k/a the Soldiers’ and Sailors’ Civil Relief Act) (the “Act”) on obtaining a default judgment. The plaintiff in Tri-Rail was a general contractor hired for a construction project that entered into a written contract with a concrete subcontractor. The subcontractor did not complete the project and was sued, along with its president, by the general contractor. The defendants failed to appear, and the general contractor moved for, and was granted, a default judgment. The following year, the defendants moved, pursuant to CPLR 5015(a) , to vacate the default judgment based on the general contractor’s admitted failure to support its motion with a non-military affidavit as to the subcontractor’s president. The subcontractor argued that the general contractor’s omission warranted the requested vacatur. The subcontractor’s president was personally served with process and never claimed to be in the active military. The defendants appealed from the motion court’s denial of the motion. The Second Department affirmed. The Court recognized that to succeed on a motion for leave to enter a default judgment, the plaintiff must demonstrate: “(1) service of process upon the defendant, (2) the failure of the defendant to appear or answer the complaint, and (3) the merits of the plaintiff’s cause of action.” In addition, “a motion for leave to enter a default judgment must be supported by what has been colloquially termed a “non-military affidavit,” which “is derived from federal law” not the CPLR. The Court noted that “the purpose of the Soldiers’ and Sailors’ Civil Relief Act is to prevent default judgments from being entered against members of the armed services in circumstances where they might be unable to appear and defend themselves.” (Citations, internal quotation marks and brackets omitted.) As stated by the Court, non-military affidavits must be based on an investigation and supported by specific facts. Further, the investigation must be conducted after the default, and not simply after the commencement of the action. In framing the relevant issue on appeal and in articulating its holding, the Court stated: It is clear that a non-military affidavit is counted amongst the proof required for a movant to meet its burden on a motion for leave to enter a default judgment. A movant's failure to provide a non-military affidavit is sufficient to warrant denial of such a motion in the first instance. However, the instant appeal presents a more nuanced question: where a default judgment was improperly entered in the absence of a non-military affidavit, is a defendant entitled to vacatur of the default judgment as of right? We hold that the failure to provide a non-military affidavit does not automatically warrant vacatur of an otherwise validly entered default judgment. In reaching its conclusion, the Court analyzed the statutory text of the Act, which limits the ability to vacate default judgments to applications “made ‘by or on behalf of the servicemember.’” Accordingly, the remedies afforded by the Act are not available to everyone. Thus, the Court held that “a movant's failure to provide a non-military affidavit does not entitle a defendant to vacatur of an otherwise validly entered default judgment as of right. Where, as here, the defaulting party has made no assertion of being on active military duty at the time of his or her default, he or she falls outside of the protection afforded by the Act.” The Court explained that: where, as here, a default judgment was improperly entered, in order to be afforded the protection of the Act, a defendant seeking vacatur must establish as part of their initial burden that this remedy is sought "by or on behalf of the servicemember." To hold otherwise and to grant any defendant the right to challenge a default judgment would permit civilians to take advantage of those protections that were specifically afforded to our servicemembers and would belie the purpose of the Act. What was intended by the legislature as a shield should not be used permissively as a sword. The Court stressed that its holding does not alter a plaintiff’s burden on an application for leave to enter a default judgment. Such a movant is still required to provide a non-military affidavit and the failure to provide one warrants denial of the application. According to the Court, the issue decided was never addressed previously in the Second Department but is consistent with decisions from other New York courts. Simply stated, because the president never purported to be in the active military, the defendants failed to establish that he “is entitled to the protections of the Act and, therefore, the general contractor’s failure to “support its motion with a non-military affidavit was a mere irregularity and does not warrant vacatur of the defendants' default…." Jonathan H. Freiberger is a partner and co-founder of Freiberger Haber LLP. This article is for informational purposes and is not intended to be and should not be taken as legal advice. Typically, inquiries are made to the Department of Defense Manpower Data Center , which provides a statement indicating whether an individual is on active military service.

By:  Jeffrey M. Haber In today’s article, we examine Hofman v. Braun , 2025 N.Y. Slip Op. 34102(U) (Sup. Ct., N.Y. County Oct. 24, 2025) ( here ), a case addressing the statute of limitations for a breach of fiduciary duty claim and the continuous wrong doctrine. In Hofman , plaintiffs alleged that defendant, Seymour Braun, their attorney, initially represented them in forming limited liability companies and negotiating a loan, then engaged in actions adverse to their interests—such as foreclosing on escrowed membership interests and transferring property—spanning from 2017 through 2022. Defendants sought dismissal, arguing the claims were time-barred and lacked causation. The motion court held that factual disputes about ongoing representation and adverse acts precluded dismissal, as the continuous wrong doctrine could toll the statute of limitations. Also, the motion court found that plaintiffs stated a claim for fiduciary breach. Plaintiff, Rafael Hofman (“Hofman”), was the former business partner of non-party Yakov Kleiner (“Kleiner”). Beginning in 2000, Hofman and Kleiner received legal services from defendant, Seymour Braun (“Seymour”), through his firm, defendant Braun & Goldberg. In 2013, Seymour helped Hofman and Kleiner purchase seven properties and form seven limited liability companies to own each of the purchased properties. Defendant BCD USA LLC (“BCD USA”) was formed as a holding company for the seven limited liability companies. One of the seven limited liability companies is Defendant, BCD Edgewater LLC (“BCD Edgewater”), which owned a property in Florida. Non-party Moshe Goldshmidt (“Goldshmidt”) was Hofman and Kleiner’s nominee to own the companies because Hoffman and Kleiner lived abroad in Israel. The funds for the property purchases came from Hofman, Kleiner, Israeli investors, and a loan from defendant Lexington Holdings LLC (“Lexington”) (the “Lexington Loan”). Braun & Goldberg allegedly represented Hofman and Kleiner with respect to, among other things, negotiating the Lexington Loan and negotiating a 2015 amendment to the loan. The Lexington Loan required 100% of the membership interests in the limited liability companies to be put in an escrow account managed by Seymour, and upon default, the membership interests would be transferred to Lexington. In 2017, Seymour’s son sued Hofman, Kleiner, and Goldschmidt, claiming he was the true owner of the limited liability companies. Litigation continued through 2019. In 2019, Lexington, through Seymour, foreclosed on the escrow and transferred the membership interests in BCD Edgewater to Lexington. On October 27, 2021, Lexington transferred BCD Edgewater’s property to non-party EL2 Development LLC (“EL2”). In 2021, EL2 started a quiet title action against plaintiffs. In 2022, in connection with the quiet title action, Seymour allegedly admitted in an affidavit that he is Lexington’s manager. Plaintiffs commenced the lawsuit by filing a summons on October 22, 2024, followed by a complaint on December 25, 2024. Plaintiffs alleged breach of fiduciary duty, aiding and abetting a breach of fiduciary duty, fraud, aiding and abetting fraud, and conspiracy to commit fraud and breach of fiduciary duty. Defendants responded with a pre-answer motion to dismiss. The motion court granted in part and denied in part the motion. We examine the court’s decision with respect to the breach of fiduciary duty claim. Defendants proffered two arguments in support of dismissing these claims. First, defendants argued the claims were time-barred, and second, plaintiffs failed to allege proximate cause. As to the first argument, the issue for the motion court turned on the application of the continuing wrong doctrine. Defendants argued that the doctrine was inapplicable because the three-year statute of limitations had run. The motion court found that there were issues of fact as to the application of the continuing wrong doctrine. The motion court explained that “ lthough Defendants dispute Seymour and Braun & Goldberg … represented Plaintiffs,” resolution of that issue could not “be resolved on a pre-answer motion to dismiss.” The motion court noted that there were numerous allegations of continuous wrongs that spanned the period 2017 through 2022, which, if true, would extend the statute of limitations: Defendants allege Seymour and Braun & Goldberg represented them in 2013 to arrange a loan and to structure multiple limited liability companies and represented them again in 2015 to negotiate an amendment to the loan agreement. There are legal invoices sent to Plaintiffs from Seymour and Braun & Goldberg substantiating these allegations …. Moreover, Seymour and Braun & Goldberg continued to serve as escrow agent, and allegedly, his son sued Plaintiffs in 2017 regarding ownership of the limited liability companies formed. Then, allegedly in 2018, Seymour, through Guillermo, sent a demand letter for payment on the loan to Goldschmidt, even though Seymour allegedly knew that Goldschmidt was not speaking with and thus would not be able to respond. One year later, in 2019, Seymour allegedly transferred the membership interests in escrow to Lexington, and then in 2021, Lexington transferred property held by BCD Edgewater to EL2, a limited liability company allegedly managed by a close associate of Seymour. EL2 then initiated a quiet title action against Plaintiffs based on that transfer, where, in 2022, Seymour allegedly submitted an affidavit in support of EL2 where he purportedly stated he is the manager of Lexington. “Because the Complaint allege acts from 2017 through 2022 perpetrated by Seymour or his alleged agents that were directly adverse to or intended to deceive Plaintiffs,” said the motion court, “there remain issues of fact as to whether the continuous wrong doctrine extends the statute of limitations.” Having found issues of fact as to whether the statute of limitations was tolled, the motion court addressed whether plaintiffs stated a claim for breach of fiduciary duty. The motion court concluded that plaintiffs had done so: “ ccepting as true the allegation that Seymour represented Plaintiffs in the negotiation over the loan and in forming the limited liability companies, Seymour’s later alleged actions, which were directly adverse to Plaintiffs and allegedly in furtherance of a goal to obtain ultimately the various purchased properties, give rise to a breach of fiduciary duty claim.” Takeaway In New York, there is no single statute of limitations governing breach of fiduciary duty claims. “Rather, the choice of the applicable limitations period depends on the substantive remedy that the plaintiff seeks.” “Where the remedy sought is purely monetary in nature, courts construe the suit as alleging ‘injury to property’ within the meaning of CPLR 214 (4), which has a three-year limitations period.” “Where, however, the relief sought is equitable in nature, the six-year limitations period of CPLR 213 (1) applies.” Moreover, “where an allegation of fraud is essential to a breach of fiduciary duty claim, courts have applied a six-year statute of limitations under CPLR 213 (8).” The initial burden of establishing that the limitations period bars the challenged claim is on the movant. “To meet its burden, the defendant must establish, inter alia , when the plaintiff’s cause of action accrued.” “A breach of fiduciary duty claim accrues where the fiduciary openly repudiates his or her obligation – i.e. , once damages are sustained.” This is so because, “absent either repudiation or removal, the aggrieved part entitled to assume that the fiduciary would perform his or her fiduciary responsibilities.” “Open repudiation requires proof of a repudiation by the fiduciary which is clear and made known to the beneficiaries.” “Where there is any doubt on the record as to the conclusive applicability of a tatute of imitations defense, the motion to dismiss the proceeding should be denied, and the proceeding should go forward.” As with many rules, there is an exception – the continuing wrong doctrine. Under the doctrine, the statute of limitations is tolled “where there is a series of independent, distinct wrongs rather than a single wrong that has continuing effects.” In Hofman , the motion court found issues of fact regarding whether acts from 2017 through 2022—such as litigation, property transfers, and affidavits—were part of a continuing wrong. As such, the motion court declined to dismiss the breach of fiduciary duty claim at the motion stage. ______________________________ Jeffrey M. Haber is a partner and co-founder of Freiberger Haber LLP. This article is for informational purposes and is not intended to be and should not be taken as legal advice. We examined this issue in numerous articles, including: Breach of Fiduciary Duty: Time Bars, Tolling and the Continuing Wrong Doctrine . To find additional articles related to the statute of limitations for breach of fiduciary duty claims, when that claim accrues, and the application of the continuous wrong doctrine, visit the “ Blog ” tile on our  website  and enter the search terms “breach of fiduciary duty,” “accrual,” “statute of limitations”, “continuing wrong”, or any other related search term in the “search” box. The motion court dismissed the fraud claim because plaintiffs did not oppose the motion with respect to that claim. Slip Op. at *3, citing Saidin v Negron , 136 A.D.3d 458 (1st Dept. 2016). Slip Op. at *4. Id. Id. (citation to record omitted). Id. at *5, citing CWCapital Cobalt VR Ltd. v. CWCapital Investments LLC , 195 A.D.3d 12, 18 (1st Dept. 2021) (citing Matter of Yin Shin Leung Charitable Found. v. Seng , 177 A.D.3d 463 (1st Dept. 2019)); Ganzi v. Ganzi , 183 A.D.3d 433, 434-35 (1st Dept. 2020). Id. , citing Palmeri v. Wilkie Farr & Gallagher LLP , 156 A.D.3d 564, 568 (1st Dept. 2017). IDT Corp. v. Morgan Stanley Dean Witter & Co. , 12 N.Y.3d 132, 139 (2009) (citations omitted). Id. ; see also VA Mgt., LP v. Estate of Valvani , 192 A.D.3d 615, 615 (1st Dept. 2021). Id. Id. Lebedev v. Blavatnik , 144 A.D.3d 24, 28 (1st Dept. 2016) (internal quotation marks and citations omitted). Id. Id. Importantly, “ o determine timeliness, consider whether plaintiff’s complaint must, as a matter of law, be read to allege damages suffered so early as to render the claim time-barred.” IDT , 12 N.Y.3d at 140. Matter of George , 194 A.D.3d 1290, 1293 (3d Dept. 2021) (internal quotation marks, brackets, and citation omitted). Matter of Steinberg , 183 A.D.3d 1067, 1071 (3d Dept. 2020) (internal quotation marks and citations omitted). Matter of Behr , 191 A.D.2d 431, 431 (2d Dept. 1993) (internal citations omitted); see Matter of Steinberg , 183 A.D.3d at 1071. Ganzi , supra .

By: Jonathan H. Freiberger William Cowper, in his Eighteenth-Century poem “The Task,” coined the phrase “Variety’s the very spice of life.” Today, this phrase is used in many contexts; albeit not so frequently when discussing service of process under CPLR 308(4) – the subject of today’s BLOG. In our recent BLOG article: “ Primer – Personal Jurisdiction and Service of Process ” we explored various process service issues. As discussed therein, obtaining personal jurisdiction over a defendant is a critical aspect of litigation. There are two components of personal jurisdiction, which the New York Court of Appeals has succinctly described as follows: One component involves service of process, which implicates due process requirements of notice and opportunity to be heard. Typically, a defendant who is otherwise subject to a court's jurisdiction, may seek dismissal based on the claim that service was not properly effectuated. The other component of personal jurisdiction involves the power, or reach, of a court over a party, so as to enforce judicial decrees. This consideration—the jurisdictional basis—is independent of service of process. Service of process cannot by itself vest a court with jurisdiction over a non-domiciliary served outside New York State, however flawless that service may be. To satisfy the jurisdictional basis there must be a constitutionally adequate connection between the defendant, the State and the action. Keane v. Kamin , 94 N.Y.2d 263, 265 (1999) (citations omitted). The law is clear that a “court lacks personal jurisdiction over a defendant who is not properly served with process.” Everbank v. Kelly , 203 A.D.3d 138, 142 (2 nd Dep’t 2022) (citations omitted); see also Castillo-Florez v. Charlecius , 220 A.D.3d 1, 2 (2 nd Dep’t 2023); Flatow v. Goddess Sanctuary & Spa Corp . , 233 A.D.3d 656, 657 (2 nd Dep’t 2024). Proper service of process is important because it implicates an individual’s constitutional rights and, accordingly, “ hen it is determined that process was ineffective, all subsequent proceedings are rendered null and void as to that party.” Everbank , 203 A.D.3d at 143 (citations omitted); see also Federal Nat. Mort. Ass’n v. Smith , 219 A.D.3d 938, 940, 941-42 (2 nd Dep’t 2023); Flatow, 233 A.D.3d at 257. “A defendant's eventual awareness of pending litigation will not affect the absence of jurisdiction over him or her where service of process is not effectuated in compliance with CPLR 308.” Nationstar Mort. LLC v. Molyaev , 235 A.D.3d 648, 649 (2 nd Dep’t 2025) (citations and internal quotation marks omitted); see also Raschel v. Rish , 69 N.Y.2d 694, 697 (1986). “Service of process upon a natural person must be made in strict compliance with the methods of service set forth in CPLR 308.” Federal Nat. Mort. Ass’n, 219 A.D.3d at 941-42 (citations, internal quotation marks and brackets omitted); see also Castillo-Florez , 220 A.D.3d at 2; Flatow , 233 A.D.3d at 257. “Typically, a defendant who is otherwise subject to a court’s jurisdiction, may seek dismissal based on the claim that service was not properly effectuated.” Keane , 94 N.Y.2d at 265 (citations omitted). CPLR 308 describes several methods that may be employed to effectuate service of process on a natural person. CPLR 308(1) permits the delivery of a summons directly to the defendant. CPLR 308(2) permits service on a person of “suitable age and discretion” at the defendant’s “actual place of business, dwelling place or usual place of abode.” CPLR 308(3) permits service on an agent within the state designated under CPLR 318 . When service under CPLR 308(1), (2) and (4) is “impractical,” CPLR 308(5) provides that service of process may be made as directed by the court. As relates to today’s BLOG, pursuant to CPLR 308(4), when “service under paragraphs one and two cannot be made with due diligence, a defendant can be served by “affixing the summons to the door of either the actual place of business, dwelling place or usual place of abode” of the defendant. The due diligence requirements of CPLR 308(4) must be “‘strictly observed because there is a reduced likelihood that a defendant will actually receive the summons when it is served pursuant to CPLR 308(4).’” Ramirez v. Escobar , 228 A.D.3d 791, 792 (2 nd Dep’t 2024) (quoting Serraro v. Staropoli , 94 A.D.3d 1083, 1084 (2 nd Dep’t 2012)) (citations omitted); see also Coley v. Gonzalez , 170 A.D.3d 1107, 1108 (2 nd Dep’t 2019); Niebling v. Pioreck , 222 A.D.3d 873, 875 (2 nd Dep’t 2023). “What constitutes due diligence is determined on a case-by-case basis, focusing not on the quantity of the attempts at personal delivery, but on their quality.” McSorley v. Spear , 50 A.D.3d 652, 653 (2 nd Dep’t 2008) (citation omitted); see also Faruk v. Dawn , 162 A.D.3d 744, 745 (2 nd Dep’t 2018) (same); Ramirez , 228 A.D.3d at 792; PNMAC Mortgage Opportunity Fund Investors, LLC v. Noushad , 240 A.D.3d 720, 722 (2 nd Dep’t 2025). As part of the diligence process, a process server must make “genuine inquiries about the defendant’s whereabouts and places of employment.” Faruk , 162 A.D.3d at 745-46; see also Serraro , 94 A.D.3d at 1085. Thus, courts have found lack of diligence where a process server failed to make “inquiries about the defendant’s whereabouts and place of employment.” McSorely , 50 A.D.3d at 654 (citations omitted); see also Niebling , 222 A.D.3d at 875; Sams Distributions, LLC v. Friedman , 235 A.D.3d 1021, 1023 (2 nd Dep’t 2025) (quoting Niebling, supra ). Finally, service will not be sustained when all attempts are made at times when the defendant will not likely be home or when working or commuting to work. See Serraro , 94 A.D.3d at 1085; McSorely , 50 A.D.3d at 653-54. Conversely, “ he due diligence requirement may be met with a few visits on different occasions and at different times to the defendant's residence or place of business when the defendant could reasonably be expected to be found at such location at those times.” Ramirez , 228 A.D.3d at 792 (citations omitted); see also PNMAC, 240 A.D.3d at 772. In Bank of America, N.A. v. Fischer , 220 A.D.3d 722 (2 nd Dep’t 2023), the Court found that service of process was not properly effectuated despite numerous attempts at the defendant’s home between December 21 and December 29, notwithstanding a Saturday attempt, because: (1) “the attempts at service occurred at the height of the holiday season, when the defendant may have had reasons not to be home”; (2) the process server was “‘unable to speak to a neighbor regarding the defendant’s whereabouts”; and, (3) defendant disclosed his employer as part of a loan modification process and no attempt was made to serve the defendant at his place of employment. Bank of America , 220 A.D.3d at 724-25 (citation omitted). The Court found that the “totality of the circumstances” compelled the conclusion that service of process was never properly effectuated. Id . at 725. Finding diligence on the process server’s part in PNMAC , the Court stated: Here, the plaintiff submitted an affidavit of due diligence demonstrating that it conducted approximately 50 searches to ascertain the defendant's address and place of employment, one of which, a request to the United States Postal Service for a Change of Address or Boxholder Information Needed for Service of Legal Process for the defendant, resulted in 559 Bristol Street, Brooklyn. Additionally, the process server made three attempts to serve the defendant at that address on different days and different times from September 16, 2020, through September 22, 2020. The Supreme Court properly concluded that, based on these few visits on different occasions and at different times to the defendant's residence or place of business when the defendant could reasonably be expected to be found at such location at those times, in addition to the Internet searches, the due diligence requirement was met. These issues were addressed by the Appellate Division, Second Department, on October 29, 2025, in Bank of New York Mellon v. DeFilippo . Bank of New York was a mortgage foreclosure action. The borrower in Bank of New York delivered a promissory note to lender and secured his repayment obligations with a mortgage on real property. In 2008, lender commenced a foreclosure action in which borrower was purportedly served with process pursuant to CPLR 308(4). Borrower failed to appear or answer the complaint. An order of reference was entered in 2010, and a motion to confirm the referee’s report was made in 2019. Later in 2019, lender moved to confirm the report and for a judgment of foreclosure and sale, which motion was granted in 2020. In 2023, borrower moved to vacate the order of reference and the judgment of foreclosure and sale based on lack of service of process. Borrower appeals from the denial of his motion. In reversing the motion court, the Second Department, analyzed the existing case law along the lines set forth herein and concluded that service was improper. In so doing, the Court stated: Here, the process server's prior attempts at service did not demonstrate due diligence. Two out of three of the process server's prior attempts at personal delivery at the defendant's residence occurred during weekday hours when it could reasonably have been expected that the defendant was either working or in transit to or from work. The prior attempts were made on Thursday, April 17, 2008, at 6:15 p.m.; on Saturday, April 19, 2008, at 1:30 p.m.; and on Monday, April 21, 2008, at 8:20 a.m. The Saturday attempt occurred at a time when the defendant may have had reasons not to be home. The process server averred that a neighbor confirmed that the defendant resided at that address, but gave a negative reply when asked if the neighbor was aware of the defendant's normal routine and place of business. Attached to the affidavit of service were the results of a "people at work" search, which revealed a company address for the defendant. Yet the process server made no inquiries about the defendant at that address before resorting to affix and mail service. Under the circumstances, the plaintiff failed to act with due diligence before relying on affix and mail service pursuant to CPLR 308(4). TAKEAWAY When it comes to service pursuant to CPLR 308(4), courts look at, inter alia , the number and temporal variety of attempts to make sure that the defendant was likely home during at least one such attempt. Attempts made at different times of the day, during different weeks, coupled with evidence of inquiries about the defendant’s whereabouts, helps to sustain proper service. Jonathan H. Freiberger is a partner and co-founder of Freiberger Haber LLP. This article is for informational purposes and is not intended to be and should not be taken as legal advice. This BLOG has written dozens of articles addressing numerous aspects of personal jurisdiction and service of process. To find such articles, please see the BLOG tile on our website and search for “jurisdiction” or “service of process” or any other commercial litigation issue that may be of interest you. CPLR 308(2) and (4) have some additional requirements before service will be deemed complete. This BLOG has written dozens of articles addressing numerous aspects of residential mortgage foreclosure. To find such articles, please see the BLOG tile on our website and search for any foreclosure, or other commercial litigation, issue that may be of interest you.

By: Jeffrey M. Haber Today, we examine familiar principles of contract interpretation, as well as the requirements for judicial dissolution of a partnership.  The Rules of Contract Interpretation It is well-settled in New York that the “‘fundamental, neutral precept of contract interpretation is that agreements are construed in accord with the parties’ intent<,> ’ and ‘ he best evidence of what parties to a written agreement intend is what they say in their writing.’” “‘The construction and interpretation of an unambiguous written contract is an issue of law within the province of the court, as is the inquiry of whether the writing is ambiguous in the first instance. If the language is free from ambiguity, its meaning may be determined as a matter of law on the basis of the writing alone without resort to extrinsic evidence.’” “A contract is unambiguous if the language it uses has a definite and precise meaning, unattended by danger of misconception in the purport of the agreement itself, and concerning which there is no reasonable basis for a difference of opinion.” “Ambiguity in a contract arises when the contract, read as a whole, fails to disclose its purpose and the parties’ intent, or where its terms are subject to more than one reasonable interpretation.” “‘ here a contract was negotiated between sophisticated, counseled business people negotiating at arm’s length, courts … reluctant to interpret an agreement as impliedly stating something which the parties’ specifically did not include.” The Rules of Judicial Dissolution Involving a Partnership Section 63 of the Partnership Law gives a partner the statutory right to seek court dissolution of a partnership, and provides that a court shall decree the dissolution, on a partner’s application, in various situations. Among the situations set forth in the statute are: the “partner has been guilty of such conduct as tends to affect prejudicially the carrying on of the business,” and the “partner wilfully or persistently commits a breach of the partnership agreement, or otherwise so conducts himself in matters relating to the partnership business that it is not reasonably practicable to carry on the business in partnership with him.” “ udicial dissolution of a partnership rarely invoked remed .” The party seeking judicial dissolution of a partnership bears the burden of presenting facts demonstrating that grounds exist under Section 63 of the Partnership Law and that such equitable relief is warranted. If the statutory prerequisites are not met, a claim for judicial dissolution will be denied. With the foregoing rules in mind, we examine Waldorf Invs., L.P. v. Waldorf , 2025 N.Y. Slip Op. 06096 (2d Dept. Nov. 5, 2025). Waldorf centered around an alleged breach of contract involving a life insurance policy. The plaintiff Christopher V. Waldorf, Jr. (“Christopher”) and the defendants Kathleen Waldorf (“Kathleen”), William Waldorf (“William”), and Stephen Waldorf (“Stephen”) are partners in Waldorf Investments, L.P. (the “partnership”). The partnership owns a parcel of real property located in Huntington, New York (the “property”). In 2017, Christopher, in the name of the partnership, and Christopher, individually and derivatively on behalf of the partnership (together, the “plaintiffs”), commenced the action to, inter alia , recover damages for breach of contract and for judicial dissolution of the partnership. Kathleen, William, Stephen, and defendant Waldorf Risk Solutions, LLC (collectively, the “defendants”), subsequently moved for summary judgment dismissing the sixteenth cause of action for breach of contract against William and Stephen and the twenty-first and twenty-second causes of action for judicial dissolution of the partnership. In an order dated March 29, 2022, the Supreme Court granted the motion. Plaintiffs appealed. The Appellate Division, Second Department, affirmed. The Court held that “defendants demonstrated their prima facie entitlement to judgment as a matter of law dismissing the sixteenth cause of action, alleging breach of contract, insofar as asserted against William and Stephen.” The breach of contract cause of action alleged, inter alia , that “William and Stephen breached the certificate of limited partnership by failing to distribute to Christopher his pro rata share of the partnership’s profits in the form of certain fire insurance proceeds and rent payments allegedly owed to the partnership.” In support of their motion, defendants submitted evidence demonstrating, among other things, that the fire insurance proceeds were retained by the partnership to redevelop the property, as permitted under the terms of the certificate of limited partnership. “Additionally,” said the Court, “defendants established, prima facie, that there were no rent payments owed to the partnership that William and Stephen failed to distribute.” The Court also held that defendants “demonstrated their prima facie entitlement to judgment as a matter of law dismissing the twenty-first cause of action, seeking judicial dissolution of the partnership.” The Court found that plaintiffs failed to demonstrate that “it not reasonably practicable to carry on the business in conformity with the partnership agreement.”   The Court explained that the evidence submitted by defendants satisfied “their prima facie burden” of demonstrating that Kathleen, William, and Stephen ha worked to, among other things, redevelop the property, thereby carrying on the partnership’s business. “In opposition,” said the Court, “plaintiffs failed to raise a triable issue of fact.” Takeaway Waldorf explores two foundational legal concepts in New York law: how courts interpret contracts and the circumstances under which a partnership may be judicially dissolved. As to the former, Walforf reaffirms the principle that courts prioritize the written intent of the parties when interpreting contracts, avoiding extrinsic evidence unless the language is ambiguous. Ambiguity arises only when a contract’s terms can reasonably be interpreted in more than one way. As to the latter, Waldorf provides insight into judicial dissolution under Partnership Law § 63, which, among other things, allows a partner to seek dissolution if another partner’s conduct makes continuing the business impractical. In Waldorf , plaintiff alleged breach of contract and sought dissolution. The Court affirmed the dismissal of both claims, finding that defendants acted within the partnership agreement and that the business was being carried out effectively. As discussed, plaintiff failed to present sufficient evidence to justify either claim, reinforcing the high bar for judicial dissolution and the importance of clear contractual language. ________________________________ Jeffrey M. Haber is a partner and co-founder of Freiberger Haber LLP. This article is for informational purposes and is not intended to be and should not be taken as legal advice. Donohue v. Cuomo , 38 N.Y.3d 1, 12 (2022), quoting  Greenfield v. Philles Records , 98 N.Y.2d 562, 569 (2002). Palombo Group v. Poughkeepsie City Sch. Dist. , 125 A.D.3d 620, 621 (2d Dept. 2015), quoting  Law Offs. of J. Stewart Moore, P.C. v. Trent , 124 A.D.3d 603, 603 (2d Dept. 2015). Greenfield , 98 N.Y.2d at 569 (alteration and internal quotation marks omitted);  see also Donohue , 38 N.Y.3d at 13. Universal Am. Corp. v. National Union Fire Ins. Co. of Pittsburgh, Pa , 25 N.Y.3d 675, 680 (2015) (citation and internal quotation marks omitted). Donohue , 38 N.Y.3d at 12, quoting  2138747 Ontario, Inc. v. Samsung C&T Corp. , 31 N.Y.3d 372, 381 (2018). Partnership Law §§ 63(c) and (d). Drucker v. Mige Associates II, 225 A.D.2d 427, 429 (1st Dept. 1996). See Jones v. Jones, 15 Misc. 2d 960, 962 (Sup. Ct., Kings County 1958). See Couch v. Langan, 63 N.Y.2d 987, 989 (1984). Slip Op. at *1. Id. Id. at *1-*2, citing Countrywide Home Loans, Inc. v. United Gen. Tit. Ins. Co. , 109 A.D.3d 953, 954 (2d Dept. 2013). Id. at *2. Id. Id. (citations omitted). Id. Id.

By:  Jeffrey M. Haber In 2019, New York enacted the Uniform Voidable Transactions Act, which repealed and replaced certain provisions of the Debtor and Creditor Law (“DCL”) relating to fraudulent conveyances, which became effective April 4, 2020. Transfers made after April 4, 2020 are governed by the current version of the DCL. The DCL, as amended, permits creditors to void actual and constructive fraudulent transfers. A creditor may void a debtor’s constructive fraudulent transfers in three situations: first, if the transfers were made without receiving reasonably equivalent value and while the debtor either (i) was engaged in a transaction for which the debtor’s remaining assets were unreasonably small in relation to the transaction or (ii) intended to incur debts beyond its ability to pay; second, if they were made without receiving reasonably equivalent value, and the debtor was insolvent at the time or became so as a result of the transfer, or third, if they were made to an “insider” for an antecedent debt while the debtor was, and the insider had reason to believe the debtor was, insolvent. If the debtor is a corporation, “insider” for purposes of section 274(b) includes: “a person in control of the debtor,” “a relative of a … person in control of the debtor,” and “an affiliate, or an insider of an affiliate as if the affiliate were the debtor.” Voidability of constructive fraudulent transactions “is unrelated to the proof of the debtor’s intent, but turns on objective facts concerning the debtor’s distressed financial condition and the inadequate consideration received.” Constructive fraudulent transfer claims are not subject to heightened pleading rules. A creditor may also void a debtor’s actual fraudulent transfers. DCL § 273(a), as amended, provides, in part, that a transfer made by a debtor is “voidable as to a creditor, whether the creditor’s claim arose before or after the transfer was made … if the debtor made the transfer … (1) with actual intent to hinder, delay or defraud any creditor of the debtor; or (2) without receiving a reasonably equivalent value in exchange for the transfer … and the debtor … (i) was engaged or was about to engage in a business or a transaction for which the remaining assets of the debtor were unreasonably small in relation to the business or transaction; or (ii) intended to incur, or believed or reasonably should have believed that the debtor would incur, debts beyond the debtor's ability to pay as they became due.” In determining actual intent under DCL § 273(a)(1), courts may consider the common law “badges of fraud,” which have been codified to include, among other factors, whether “(1) the transfer or obligation was to an insider; (2) the debtor retained possession or control of the property transferred after the transfer; (3) the transfer or obligation was disclosed or concealed; (4) before the transfer was made or obligation was incurred, the debtor had been sued or threatened with suit; (5) the transfer was of substantially all the debtor's assets; (6) the debtor absconded; (7) the debtor removed or concealed assets; (8) the value of the consideration received by the debtor was reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred; (9) the debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred; (10) the transfer occurred shortly before or shortly after a substantial debt was incurred; and (11) the debtor transferred the essential assets of the business to a lienor that transferred the assets to an insider of the debtor.” Although causes of action under Section 273 of the former DCL were not required to be pleaded with heightened particularity pursuant to CPLR 3016(b), such particularity was required for “actual intent” causes of action arising out of Section 276 of the former DCL. Since the “actual intent” provision of the former DCL was incorporated into the amended DCL ( i.e. , section 273 (a)(1)), causes of action arising under this subdivision must satisfy the heightened pleading requirements. Thus, allegations of the transfer and badges of fraud made “upon information and belief” are generally insufficient to plead the claim with the requisite particularly of CPLR 3016(b). However, where material facts are within the exclusive knowledge of the party charged with such fraud, the specificity requirement is not to be so strictly interpreted “to dismiss a case at an early stage where any pleading deficiency might be cured later in the proceedings.” Therefore, a pleading based “upon information and belief” can satisfy the CPLR 3016(b) heightened pleading requirement when it is accompanied by a statement of facts “sufficient to permit a reasonable inference of the alleged conduct.” In Neptune Issue Inc. Profit Sharing Plan v. Eliopoulos , 2025 N.Y. Slip Op. 06001 (3d Dept. Oct. 30, 2025 ( here ), the Appellate Division, Third Department, addressed the foregoing principles. In April 2016, plaintiff commenced an action against defendant Mary Ellen Eliopoulos (“Eliopoulos”) and defendant Estates of Glenburnie LLC (“Glenburnie LLC”), a domestic limited liability company owned by Eliopoulos, seeking to foreclose on a note and mortgage secured by real property located in Essex County, New York. Plaintiff commenced a second mortgage foreclosure action against Eliopoulos and Glenburnie LLC in May 2016, this time relating to real property located in Washington County, New York. While these actions were pending, Eliopoulos and Glenburnie LLC obtained two mortgages with nonparty Mako International, LLC (“Mako”), encumbering several parcels of real property located in the Town of Putnam, Washington County (“Putnam parcels”). In late 2018, plaintiff obtained judgments of foreclosure and sale in both actions and, following the referee sales, moved in each action for a deficiency judgment against Eliopoulos. In February 2019, Eliopoulos and Glenburnie LLC further encumbered the Putnam parcels with a third mortgage from Mako. Before either deficiency judgment could be rendered in plaintiff’s favor, in June 2020, Eliopoulos and Glenburnie LLC conveyed their interests in the Putnam parcels and two parcels commonly known as Lake George Way (collectively, the “subject properties”) to defendant Glenburnie Estates LLC (“GEL”) for $529,000. Eliopoulos’ son is the sole member of GEL. Plaintiff then commenced the action against Eliopoulos, Glenburnie LLC and GEL (collectively, “defendants”) seeking to set aside the conveyance of the subject properties to GEL as a voidable transaction pursuant to DCL §§ 273, 274, and 275. GEL moved, pre-answer, to dismiss the complaint for failure to state a cause of action and based on the documentary evidence. GEL contended that the allegations against defendants based “upon information and belief” were insufficient to state a cause of action with the particularity required under the DCL. GEL further contended that a subsequent proposed sale of the subject properties demonstrated that Eliopoulos and Glenburnie LLC received reasonably equivalent value from GEL in exchange for the transfer. Plaintiff opposed the motion. The motion court entered an order without any written or oral findings, denying the motion to dismiss. GEL appealed. The Court held that the complaint alleged sufficient facts to state causes of action alleging violations of DCL § 273(a)(1) and (a)(2). “Although several key allegations in both causes of action were based ‘upon information and belief,’” noted the Court, it was “satisfied that the accompanying factual statements sufficient to place defendants on notice of the allegations asserted against them.” “Specifically,” said the Court, “each cause of action alleged that Eliopoulos and Glenburnie LLC conveyed the subject properties to her son’s entity, GEL, an insider, at a time when defendants knew they were likely to incur additional debts as a result of plaintiff’s pending actions seeking a deficiency judgment against Eliopoulos.” “These factual statements,” concluded the Court, were “supported by the record, including that defendants not dispute the son’s status as an insider.” The Court also held that these statements satisfied “multiple factors considered to be badges of fraud,” and, therefore, were “sufficiently pleaded.” The Court noted that “ lthough … plaintiff’s allegations relating to Eliopoulos and Glenburnie LLC’s ability to repay additional debts likely to be incurred and further that Eliopoulos was insolvent after the transfer to GEL were not supported by factual statements, insolvency presumed” under DCL § 271(b) “where a debtor is ‘generally not paying the debtor’s debts as they become due other than as a result of a bona fide dispute.’” “At the time of the conveyance to GEL,” explained the Court, “plaintiff had already been awarded two judgments of foreclosure and sale against Eliopoulos for her failure to make payments under two separate mortgage notes.” “Further,” said the Court, “considering that the record reveal Eliopoulos may have ignored an information subpoena relating to her finances as to at least one of the deficiency judgments,” it was “satisfied that such financial information within the knowledge of the parties alleged to have engaged in a fraud and which could be explored during disclosure.” The Court rejected defendants’ contention plaintiff’s allegations were speculative because they were asserted “upon information and belief” and otherwise contrary to the documentary evidence: Eliopoulos and Glenburnie LLC encumbered the Putnam parcels with $475,000 in mortgages from Mako, and then sold the Putnam parcels plus two other parcels — including at least one parcel not subject to a Mako mortgage that had deeded water access to Lake George — to GEL for $529,000. As highlighted by plaintiff, this means two parcels on Lake George — one with deeded lake access — were conveyed for approximately $27,000 each. Then approximately three years later, all four subject properties were sold to a third party for $1,250,000. Although GEL contends that the actual consideration for the June 2020 transaction was above $529,000 and that the subject properties were “unmarketable and worthless” because other potential buyers “would not pay anything, let alone fair market value,” for real property that was subject to multiple lawsuits, this is information within the knowledge of defendants and a “plaintiff may allege upon information and belief that defendants transferred assets for inadequate or no consideration.” “When … recognizing that we are to afford the complaint a liberal construction, presume the alleged facts to be true, and afford plaintiff the benefit of every favorable inference when considering a motion to dismiss for failure to state a cause of action,” said the Court, “we are satisfied that the allegations contained in the complaint set forth a cognizable legal claim under the Debtor and Creditor Law.” Takeaway The Legislature’s adoption of the Uniform Voidable Transactions Act modernized the State’s prior Debtor and Creditor Law, thereby enhancing creditor protections against fraudulent transfers. The revised law distinguishes between actual and constructive fraud, with the latter based on objective financial distress rather than intent. Actual fraud requires heightened pleading standards and is evaluated using codified “badges of fraud.” Neptune illustrates the law’s practical application: a property transfer to an insider during pending foreclosure actions was challenged as voidable. The Court found that even allegations made “upon information and belief” were sufficient when supported by factual context, such as insider status and undervalued consideration. Neptune also affirmed that insolvency can be presumed from missed payments and ignored subpoenas. Neptune reinforces the DCL’s focus on economic realities over formalities, thereby making it a powerful tool for creditors seeking redress for fraudulent transfers. ___________________________ Jeffrey M. Haber is a partner and co-founder of Freiberger Haber LLP. This article is for informational purposes and is not intended to be and should not be taken as legal advice. This Blog examined the new DCL in an article titled, N.Y. Supreme Court Rules on Alleged Fraudulent Conveyance and the Attempt to Evade Creditors . Uniform Voidable Transactions Act, L 2019, ch. 580, § 2 (eff. Apr. 4, 2020); L&M 353 Franklyn Ave. LLC v. Steinman , 202 A.D.3d 440, 440 (1st Dept. 2022); Van de Walle v. Van de Walle , 68 Misc. 3d 1224(A), 2020 N.Y. Slip Op. 051064(U) (Sup. Ct., Nassau County 2020), aff’d , 200 A.D.3d 1095 (2d Dept. 2021). Van de Walle , 68 Misc. 3d 1224(A). DCL §§ 273(a)(1)-(2), 274(a)-(b), 276; see also Tian v. Top Food Trading Inc. , No. 22-CV-0345 (EK) (VMS), 2024 WL 1051172, at *9 (E.D.N.Y. Feb. 26, 2024), adopted by 2024 WL 1908910 (May 1, 2024). DCL § 273(a)(2). Id. § 274(a). Id. § 274(b). Id. §§ 270(h)(2)(iii), (vi), (4). 245 E. 19 Realty LLC v. 245 E. 19th St. Parking LLC ,  80 Misc. 3d 1206(A), at *6 (Sup. Ct., N.Y. County 2023) (citing James Gadsden & Alan Kolod,  Supplementary Practice Commentaries,  McKinney’s Debtor and Creditor Law § 273 (2020)),  affirmed as modified,  223 A.D.3d 604 (1st Dept. 2024). In re Tops Holding II Corp ., 646 B.R. 617, 649 (Bankr. S.D.N.Y. 2022). DCL § 273(b); see also Matter of Schiffman v. Affordable Shoes , 238 A.D.3d 770, 773 (2d Dept. 2025);  245 E. 19 Realty LLC , 223 A.D.3d at 606. See Louis Monteleone Fibres, Ltd. v. Hudson Baylor Brookhaven, LLC , 228 A.D.3d 641, 646 (2d Dept. 2024). See Old Republic Natl. Title Ins. Co. v. 1152 53 Mgt., LLC , 227 A.D. 3d  824, 828 (2d Dept. 2024);  Avilon Automotive Group v. Leontiev , 194 A.D.3d 537, 539 (1st Dept. 2021). See generally Drip Capital, Inc. v. JY Imports of NY Inc. , ___ F. Supp. 3d ___, ___, 348 F.R.D 536, 547 (E.D.N.Y. 2025). See Avilon Automotive , 194 A.D.3d at 539;  Carlyle, LLC v. Quik Park 1633 Garage LLC , 160 A.D.3d 476, 477 (1st Dept. 2018). Pludeman v. Northern Leasing Sys., Inc. , 10 N.Y.3d 486, 491-492 (2008);  see Paolucci v. Mauro , 74 A.D.3d 1517, 1520-1521 (3d Dept. 2010);  see generally  CPLR 3211(d). Pludeman , 10 N.Y.3d at 492;  see Louis Monteleone Fibres , 228 A.D.3d at 647;  Phone Admin. Servs. Inc. v. Verizon N.Y., Inc. , 211 A.D.3d 493, 494 (1st Dept. 2022);  cf. Carlyle , 160 A.D.3d at 477. Slip Op. at *3. Id. Id. Id. (citing DCL § 270(h)(1)(i); (2)(vi)). Id. (citing 245 E. 19 Realty , 223 A.D.3d at 606; JDI Display Am., Inc. v. Jaco Elecs, Inc. , 188 A.D.3d 844, 846 (2d Dept. 2020); DCL § 273(b)). Id. at *4. Id. Id. (citation omitted). Id. Id. (quoting 477 Realty, L.L.C. v. Wing Soho, LLC , 234 A.D.3d 469, 471 (1st Dept. 2025)). Id. (citing Pludeman , 10 N.Y.3d at 493; Paolucci ,74 A.D.3d at 1521).

By:  Jeffrey M. Haber In New York, when interpreting a contract, the words of the writing must be accorded their fair and reasonable meaning, aiming for a practical interpretation that realizes the reasonable expectations of the parties. The court is required to enforce a written agreement according to the plain meaning of its terms when it is complete, clear, and unambiguous on its face.  Although the parties may offer conflicting interpretations of their contract, that does not mean that the contract is ambiguous. In that circumstance, and in general, the court is to apply the meaning intended by the parties, as derived from the language of the contract in question. Thus, “where the intention of the parties may be gathered from the four corners of the instrument, interpretation of the contract is a question of law < i.e. , it can be determined by the court> i.e., it can be determined by the court> and no trial is necessary to determine the legal effect of the contract.” In Harris v. Dream Volunteers , 2025 N.Y. Slip Op. 33963(U) (Sup. Ct., N.Y. County Oct. 14, 2025), the motion court granted defendant’s motion to dismiss plaintiff’s breach of contract claims on the grounds that the plain meaning of the contract at issue utterly refuted plaintiff’s allegations.     Plaintiff commenced the action alleging breach of contract based on two theories: (1) breach of an original agreement dated April 10, 2023, asserting that plaintiff was prematurely terminated in violation of that agreement because the termination took place prior to a deadline to complete certain tasks; and (2) breach of a subsequent implied-in-fact contract, allegedly formed on December 21, 2023, which established a new deadline of October 31, 2024, for completing certain tasks. The original agreement designated plaintiff as an independent contractor providing sales and marketing strategy services to defendant. The agreement specified that “the only consideration due regarding the subject matter of Agreement” was payment of compensation in the amount of $6,667 per month. Section 8 of the agreement, titled “Termination,” granted defendant the right to “terminate Agreement at any time, with or without cause, upon thirty (30) days’ notice except within the first ninety (90) days of Agreement.” Defendant terminated the agreement on January 17, 2024, effective February 16, 2024. The termination, therefore, occurred well after the initial ninety (90) day period, making defendant’s 30-day notice within the period set forth in Section 8 of the agreement. Based upon the foregoing facts, the motion court found plaintiff’s claims to be “fatally undermined by the clear and unambiguous language contained in the agreement.” Plaintiff’s claim for breach of the original agreement rested on the premise that because the agreement outlined key objectives or tasks with deadlines ( e.g. , June 30, 2024), defendant was obligated to keep the agreement in effect until those deadlines passed. Pointing to Section 1 and Exhibit A of the agreement, the motion court noted that those sections primarily described plaintiff’s obligations under the agreement, which required her to undertake and complete services on the specified schedule. However, that section, said the motion court, “limit the defendant’s obligation by explicitly stating that the only consideration due from was the monthly payment of $6,667.” Further, explained the motion court, “Section 8 of the Agreement clearly and expressly grant the defendant the unconditional right to terminate the agreement ‘at any time, with or without cause, upon thirty (30) days’ notice except within the first ninety (90) days.’” “This language,” explained the motion court, “directly contravene the plaintiff’s interpretation of the agreement that setting deadlines for an independent contractor to complete certain tasks somehow create an implied right that the contractor remain[ ] engaged through those dates.” “Given that the contract provide for termination at will after the initial 90-day period,” concluded the motion court, “irrespective of any task or objective deadlines, the claim that the plaintiff’s termination prior to June 30, 2024 was impermissible utterly refuted by the plain and unambiguous language of the agreement.” Finally, the motion court held that “plaintiff’s claim that the deadline to complete the tasks was extended to October 31, 2024 … unavailing.” First, the motion court found that “even if it could be established that the deadline was extended, the plaintiff still could have been terminated at will for the reasons stated” in the decision. Second, explained the motion court, “any claim that the deadline was extended by either an oral or implied-in-fact agreement foreclosed by the clear language of the agreement.” The motion court noted that the amendment clause and integration clause of the agreement foreclosed any argument that an implied-in-fact contract existed: Section 13 of the agreement explicitly states that “ o changes or modifications or waivers to this Agreement will be effective unless in writing and signed by both parties.” The agreement also contains an integration clause, which dictates that the Agreement “constitutes the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter described herein.” Because the alleged new implied-in-fact contract derived from oral discussions and email communications concerning the existing subject matter (Consultant’s key objectives/deadlines), it violate the plain language of Section 13. Accordingly, the motion court granted defendant’s motion and dismissed the complaint in its entirety. Takeaway Harris underscores the fundamental principle of contract interpretation – i.e. , contracts are to be construed pursuant to the parties’ intention. As the Court of Appeals explained a little over three decades ago, “ he best evidence of what the parties … intend is what they say in their writing.” When the parties’ writing is clear and unambiguous on its face – that is, the terms are reasonably susceptible to only one meaning – it should be enforced according to the plain meaning of those words. _____________________________ Jeffrey M. Haber is a partner and co-founder of Freiberger Haber LLP. This article is for informational purposes and is not intended to be and should not be taken as legal advice. Dreisinger v. Teglasi , 130 A.D.3d 524, 527 (1st Dept. 2015). Greenfield v. Philles Records , 98 N.Y.2d 562, 569 (2002). Bethlehem Steel Co. v. Turner Constr. Co. , 2 N.Y.2d 456, 460 (1957). Duane Reade, Inc. v. Cardtronics, LP , 54 A.D.3d 137, 140 (1st Dept. 2008). Bethlehem Steel , 2 N.Y.2d at 460. Slip Op. at *2. Id. Id. Id. Id. Id. Id. Id. Id. Id. at *2-*3. This Blog has written about the issues in this case – namely, words have meaning – on numerous occasions. Some of the articles that we have written include: Contract Interpretation: Words Have Meaning ; The New York Court of Appeals Reminds Litigants That Words in Contracts Have Meaning ; Words Have Meaning ; A Contract That Means What It Says ; Contracts That Say What They Mean, Mean What They Say Redux ; and Contracts that Say What They Mean, Mean What They Say . Slamow v. Del Col , 79 N.Y.2d 1016, 1018 (1992).

By:  Jeffrey M. Haber Under New York’s Limited Liability Company Law (“LLCL”) § 702 , a court “may decree dissolution of a limited liability company whenever it is not reasonably practicable to carry on the business in conformity with the articles of organization or operating agreement.” The claim must be brought “ n application by or for a member” of the company. In Matter of Bodenchak v. 5178 Holdings LLC , 2025 N.Y. Slip Op. 05875 (1st Dept. Oct. 23, 2025) ( here ), the Appellate Division, First Department, examined the “by or for” language of LLCL § 702 in affirming the grant of a motion to substitute the estate of a deceased member for the decedent in the proceeding. Bodenchak was brought as a special proceeding in which the original petitioner, Frank Bodenchak (“Frank”), a minority investor in 5178 Holdings LLC (“5178”), sought both direct monetary damages and the judicial dissolution of 5178, a New York Limited Liability Company (“LLC”), pursuant to LLCL § 702. Frank died shortly after commencing suit. His widow, Dawn Bodenchak (“Dawn”), was appointed executor of his estate and moved to substitute as petitioner. Respondents opposed the motion, contending the estate could not maintain the dissolution portion of the proceeding under LLCL § 702. The motion court granted the motion. Respondents appealed. The First Department “unanimously affirmed”. The issue on appeal concerned the request for judicial dissolution of 5178. As to the monetary damages claims, there was no dispute. Under Section 11-3.2(b) of New York’s Estates, Powers & Trusts Law, the personal representative of a decedent’s estate may bring or continue an action “ or any injury,” and “ o cause of action for injury to person or property is lost because of the death of the person in whose favor the cause of action existed.” Thus, causes of action seeking monetary damages survive a decedent’s death, and the proper party to maintain an action to recover monetary damages is the decedent’s representative. In Bodenchak , the proper party to pursue Frank’s monetary damages claims was Dawn. In addressing the request for dissolution of 5178, the Court looked to the LLCL. Under LLCL § 702 , a dissolution action may be brought “ n application by or for a member.” The Court held that Dawn satisfied Section 702, stating “Petitioner’s application was made for decedent, a member of respondent 5178 Holdings, as executor of his estate.” Therefore, said the Court, defendants’ attempt to limit the scope of Section 702 to only members was “unavailing”. Under LLCL § 608 , the estate of a deceased member “may exercise all of the member’s rights for the purpose of settling his or her estate or administering his or her property,” regardless of whether the estate assumes “member” status. Appellate and trial court cases interpreting LLCL § 608 have consistently made it clear that the statute means what it says. In Bodenchak , the Court held that “Decedent’s right to pursue dissolution passed to his estate upon his death.” This was especially so, since “the dissolution proceeding necessary to settle estate and distribute the proceeds from the sale of the apartment owned by 5178 Holdings.” Thus, contrary to the respondents’ contention, which the Court held was “also unavailing”, petitioner, as executor of Frank’s estate, had the authority to exercise Frank’s rights in the LLC for the purpose of settling the estate. Takeaway In Bodenchak , the First Department reaffirmed an important point under the LLCL: the right to seek judicial dissolution of an LLC does not vanish upon a member’s death, when the dissolution proceeding is necessary to settle the deceased member’s estate. LLCL § 702 allows dissolution “on application by or for a member,” which the Court made clear includes actions brought by the estate of a deceased member. The Court relied on LLCL § 608 , which grants an estate the ability to exercise all of a deceased member’s rights for purposes of settling the estate, even if the estate (or its representative) does not become a member of the LLC. Thus, under LLCL § 608 , Frank’s right to seek dissolution passed to his estate upon his death, particularly because the dissolution proceeding was necessary to settle the estate and distribute assets. In short, the Bodenchak confirms that: (a) monetary damage claims survive a member’s death and can be pursued by the estate’s representative; (b) the estate of a deceased LLC member may seek judicial dissolution under LLCL § 702 , when dissolution is necessary to settle the deceased member’s estate; and (c) LLCL § 608 empowers estates to exercise a deceased member’s rights for estate administration, regardless of membership status. ______________________________   Jeffrey M. Haber is a partner and co-founder of Freiberger Haber LLP. This article is for informational purposes and is not intended to be and should not be taken as legal advice. LLCL § 702. In prior articles, we examined substitution upon the death of a named party. See Death and Litigation , CPLR 1015(a) and the Death of a Party , and Death of a Litigant . We have also examined judicial dissolution of an LLC under LLCL § 702 . See LLC Breakups And Judicial Dissolution: The Hurdles Are High , Issues Of Fact Preclude Dismissal Of Claim For Judicial Dissolution Of LLC , Breaking Up Is Hard To Do: Court Denies Motion To Dismiss Action For Dissolution of an LLC , Court Finds that Allegedly Ousted Member of LLC Has Standing to Seek Dissolution , and Court Reinforces the Fact that Judicial Dissolution of an LLC is Not Easy . This Blog has not, however, addressed the issue in Matter of Bodenchak v. 5178 Holdings LLC . Under New York law, “individual beneficiaries . . . ha no independent right to maintain an independent cause of action for the recovery of estate property, as such a right belong to the personal representative of the decedent’s estate.” See Stallsworth v. Stallsworth , 138 A.D.3d 1102, 1103 (2d Dept. 2016) (citations omitted). Slip Op. at *1. LLCL § 608. Under New York law, the death of a member of a limited liability company does not trigger dissolution of that limited liability company. See LLCL § 701(b). Crabapple Corp. v. Elberg , 53 A.D.3d 434 (1st Dept. 2017); In Matter of Andris v. 1387 Forest Realty, LLC , 213 A.D.3d 923 (2d Dept 2023); see also Pachter v. Winiarski , 2021 WL 1794565 (Sup. Ct., Kings County May 5, 2021); Estate of Judith Lindenberg v. Winiarsky ; 2021 WL 1794560 (Sup. Ct., Kings County May 5, 2021). Slip Op. at *1 (citing Crabapple , 53 A.D.3d at 435). Id. (citing Matter of Andris , 213 A.D.3d at 924). Id.

By: Jonathan H. Freiberger Today’s article addresses 1995 Cam LLC v. West Side Advisors, LLC , a case decided on October 21, 2025, by the New York Court of Appeals. In 1995 Cam , the Court held that the guaranty executed by guarantor was a “good guy” guaranty and, therefore, liability under the subject commercial lease ended with the tenant’s surrender of possession of the premises and not with the landlord’s acceptance of the surrender. By way of background, a “good guy” guaranty is a type of guaranty frequently seen in conjunction with commercial leases. Such guarantees are typically executed by one or more owners of the tenant entity. “Under a standard ‘good guy guaranty,’ the guarantor is obligated to guarantee the lease payments until the tenant vacates and surrenders possession. This guaranty is so named because it is intended to induce the tenant to be a ‘good guy’ and leave the premises without undergoing the expense of eviction or removal of the tenant’s property.” 1995 Cam at Note 1 (citations and internal quotation marks omitted). Thus, the tenant, but not the “good guy” guarantor would be responsible for all rent due under the lease subsequent to the surrender. In 1995 Cam , the landlord and tenant entered into a commercial lease for office space in Manhattan. The initial lease was a standard form Real Estate Board of New York, Inc. (“REBNY”) lease with a rider. The lease was subsequently extended to, inter alia , include a limited personal guaranty from one of tenant’s officers, which was not a standard REBNY limited guaranty. Prior to the end of the lease term, tenant stopped paying rent and, on October 28, 2020, sent a letter to landlord advising of its intent to surrender the premises on November 30, 2020. On or about November 30, 2020, tenant vacated the premises and, after a walkthrough, delivered the keys to the premises to the building superintendent. The landlord commenced an action against tenant and guarantor to recover unpaid rent and expenses accruing both before and after the surrender of the premises. Ultimately, Supreme Court granted summary judgment to landlord. Tenant and guarantor appealed. The First Department affirmed, holding that “because the guaranty requires 's surrender ‘pursuant to the terms of the Lease’ failure to obtain 's written acceptance of the surrender of the premises precluded avoidance of liability.” (Citations and internal quotation marks omitted.) The Court of Appeals granted leave for guarantor to appeal the judgment against it for post-vacatur damages. The Court framed the question presented as follows: “whether 's liability ends with 's surrender of possession, or with 's acceptance of surrender.” The Court’s analysis began with a discussion of general principles of contract construction. It noted that “ guaranty is subject to the ordinary principles of contract construction.” (Citations and internal quotation marks omitted.) Further, “ t is axiomatic that a contract is to be interpreted so as to give effect to the intention of the parties as expressed in the unequivocal language employed.” (Citations and internal quotation marks omitted.) In addition, “ n the absence of any ambiguity, we look solely to the language used by the parties to discern the contract's meaning.” (Citations and internal quotation marks omitted.) The Court noted that there was no claim of ambiguity with the lease. Specifically, as to the guaranty, the Court reiterated that such instruments are “to be interpreted in the strictest manner” and that: mportantly, an interpretation that renders language in the guaranty superfluous is a view unsupportable under standard principles of contract interpretation. Accordingly, particular words should be considered, not as if isolated from the context, but in the light of the obligation as a whole and the intention of the parties as manifested thereby. Form should not prevail over substance and a sensible meaning of words should be sought. The Court then quoted the operative provision of the guaranty: Guarantor guarantees that he shall pay to owner when due all Tenant's monetary obligations that have accrued under the terms of the Lease to the date that is the latest date that Tenant and its assigns, licensees and sublessees, if any, and shall have completely vacated and surrendered the Demised Premises to free and clear of any and all subtenants and/or occupants pursuant to the terms of the Lease (which date may be earlier than the stated expiration date in the Lease.) Tenant shall provide with not less than thirty (30) days prior notice of the date that it will be vacating and surrendering free and clear of any and all subtenants and other occupants. The Court recognized that while “surrender” is not defined in the guaranty, the REBNY lease contained two relevant provisions. The first (titled “End of Term”) provides that: Upon the expiration or other termination of the term of this Lease, Tenant shall quit and surrender to the Demised Premises, broom clean, in good order and condition, ordinary wear and damages which Tenant is not required to repair as provided elsewhere in this Lease excepted, and Tenant shall remove all its property. The second provision (titled “No Waiver”) provides that: No act or thing done by or 's agents during the term hereby demised shall be deemed an acceptance of a surrender of said premises, and no agreement to accept such surrender shall be valid unless in writing signed by . No employee of or 's agent shall have any power to accept the keys of said premises prior to the termination of the Lease and the delivery of keys to any such agent or employee shall not operate as a termination of the Lease or a surrender of the premises. In its opinion, the Court disagreed with the First Department’s reliance on the “No Waiver” provision to define “surrender”, which required a landlord’s acceptance. Doing so, according to the Court of Appeals, would “render most of the language in the guaranty superfluous.” In particular, the Court stated that the “language in the guaranty after ‘that have accrued under the terms of the Lease’ conditions 's liability on 's actions. If 's liability were intended to be fully coterminous with that of —that is, a full guaranty—all of the conditional language in the guaranty would be superfluous.” Conversely, the court found that the language in the “End of Term” provision of the REBNY lease would be more appropriately relied upon to define “surrender.” The Court stated: Relatedly, of the REBNY Lease requires that at lease end, the tenant deliver the Premises vacant and broom clean. If the guaranty continued until the end of the Lease, there would be no need to reiterate the requirement that the Premises be delivered “completely vacant” in the guaranty. Inclusion of the “completely vacant” requirement in the guaranty becomes meaningful only if the guarantor's liability can end before the Lease ends, so that even when 's “vacant and broom clean” requirement is not yet in effect (because the Lease has not ended), the “good guy” guaranty requires the premises be completely vacant at the earlier time as a condition of releasing the guarantor. The Court further found that because: the Lease does not require that the tenant give any notice to vacate at the end of the lease term; the inclusion of the 30–day notice provision in the guaranty makes sense only if the guaranty can terminate before the end of the lease, leaving the tenant, but not the guarantor, liable for post-surrender rent. Indeed, reading “surrender” in the guaranty to include acceptance would render the 30–day notice an impossibility. If, as contends, “surrender” in the guaranty requires its acceptance, the notice requirement would require to provide notice 30 days before accepts the surrender, which would be both impossible and nonsensical. Finally, the Court noted that the parties could have easily crafted a guaranty that was expressly a “good guy” guaranty without the need for the court to “resort to rules of construction regarding superfluity or canons that aid in determining the parties’ intent.” It should be noted that Justice Singas wrote a lengthy dissenting opinion in which one other justice concurred. Jonathan H. Freiberger is a partner and co-founder of Freiberger Haber LLP. This article is for informational purposes and is not intended to be and should not be taken as legal advice.

By:  Jeffrey M. Haber In Kellinger v. Fox Media LLC , 2025 N.Y. Slip Op. 33835(U) (Sup. Ct., N.Y. County Oct. 8, 2025) ( here ), the New York Supreme Court granted a motion brought by defendants to enforce a $15,000 settlement agreement with plaintiff. The motion court found that plaintiff had confirmed the settlement by email, satisfying CPLR 2104’s requirement for a written agreement. Although plaintiff later claimed he only agreed to review the documents, the motion court held that his email constituted a binding acceptance of the settlement. In New York, settlement agreements “are judicially favored, will not lightly be set aside,” and will be enforced “with rigor and without a searching examination into their substance.” A court called upon to enforce a settlement must be satisfied that the agreement is “clear, final and the product of mutual accord.” Thus, an out-of-court agreement settling an action is binding on each party to the agreement only if “it is in a writing subscribed by him or his attorney.” “In addition, since settlement agreements are subject to the principles of contract law, for an enforceable agreement to exist, all material terms must be set forth” in that writing, “and there must be a manifestation of mutual assent.” One of the first cases in New York to analyze whether emails satisfy the requirements of CPLR 2104 was Forcelli v. Gelco Corp. In Forcelli , the plaintiff sued the defendant for damages resulting from an automobile accident. Following discovery, the parties each moved for summary judgment. On the same day that the parties filed their motions, the parties appeared for mediation. Although a settlement was not reached at the mediation, the parties continued their discussions. In a subsequent phone conversation, the plaintiff’s counsel orally agreed to accept a settlement offer made by the insurance carrier’s adjuster. The adjuster memorialized the agreement to settle in an email to the plaintiff’s counsel. Under the agreement, the insurer agreed to pay $230,000 to the plaintiff in exchange for a release from the plaintiff. The plaintiff’s attorney was to prepare the settlement documentation. The adjuster “signed” the email as follows: “Thanks Brenda Greene.” On May 4, 2011, the plaintiff executed a release. One week later, the motion court granted the defendant’s cross-motion to dismiss the complaint. The same day, the defendant’s attorney served the order with notice of entry on the plaintiff, and the plaintiff’s counsel sent the release and a signed stipulation of discontinuance to the adjuster. The adjuster received the “settlement documents” and forwarded them to the defendant’s counsel, who promptly “rejected” the release and stipulation of discontinuance. The defendant’s attorney asserted that a “settlement consummated under CPLR 2104 between the parties” and that the defendant considered the matter dismissed by court’s order resolving the cross-motion. The plaintiff moved to vacate the order dismissing the case, arguing that the adjuster’s email “constituted a binding written settlement agreement pursuant to CPLR 2104”. The plaintiff opposed the motion, arguing there was a binding settlement. The motion court granted the plaintiff’s motion. On appeal, the Appellate Division, Second Department, affirmed. The Court found that the adjuster’s email set forth the material terms of the parties’ settlement. According to the Court, the parties entered a valid settlement agreement on May 11, 2011, even though the release was not fully executed. The Court rejected the defendant’s argument that the settlement agreement was invalid because neither the defendant nor its counsel executed the release and draft stipulation, holding that the adjuster was an agent with apparent authority to settle the case. As to the “subscription” requirement of CPLR 2104, the Court noted that while emails cannot be signed in the traditional sense, “the lack of ‘subscription’ in the form of a handwritten signature has not prevented other courts from concluding that an email message, which is otherwise valid as a stipulation between parties, can be enforced pursuant to CPLR 2104.” The Court also recognized the “widespread use of email” and how “unreasonable” it would be to determine that, due to the absence of a traditional signature, an email could not conform to CPLR 2104. The Court further noted that the adjuster purposely added her name at the end of the e-mail and that it was not automatically generated by the email software. The Appellate Division, First Department, has cited Forcelli with approval, finding it to be of persuasive value. Against the foregoing, we examine Kellinger v. Fox Media LLC . In Kellinger , the parties verbally agreed to settle the action for $15,000, which defendant’s counsel attempted to confirm via email dated November 17, 2023. In the email, counsel wrote: “We will prepare the settlement agreement/general release and hold harmless and send to you on this email chain. Can you please confirm for me that we have agreed to settle for $15,000?” Plaintiff responded, “Yes we have agreed on $15,000 and I am awaiting settlement documents. Jim.” On November 27, 2023, counsel emailed the proposed general release/settlement agreement and the hold harmless agreement. Neither party disputed that plaintiff did not return a signed executed copy of these documents. Defendants moved to enforce the purported written settlement agreement between them and plaintiff. Defendants argued that the November 27 email satisfied the legal requirements under CPLR 2104 and, therefore, constituted an enforceable agreement. The motion court granted the motion, finding that “plaintiff, in subscribing to the settlement offer in the email, ha entered into an enforceable agreement.” The motion court noted that plaintiff did not “deny that he sent the email that confirmed the material terms of a settlement for $15,000 in exchange for the ‘settlement agreement/general release and hold harmless .’” Instead, plaintiff tried to walk back the agreement, claiming his email merely indicated a willingness to review the documents—not a final acceptance. The motion court rejected this attempt as an effort to “distort the plain, declarative meaning of plaintiff’s whole statement, which, as the full context of the email conversation reveal , was to confirm, per counsel’s request, the oral agreement that had already been agreed to in previous discussions.” “This is especially true,” said the motion court, “as plaintiff does not ever reject the terms of the release in his emails to defendants’ counsel.” The motion court reasoned that “plaintiff’s post-hoc rationalization strain credulity: had he intended, plaintiff could have explicitly conditioned the settlement on ‘an examination’ of the release documents, or, if the release contained terms beyond those he believed he had agreed to, he could have rejected them immediately after receiving it.” But, plaintiff had done none of the foregoing. “In other words,” said the motion court, “to the extent that plaintiff now relies on the confidentiality provision in the release as creating a material term to which he did not agree, plaintiff did not provide a credible explanation for his failure to expeditiously deny the existence of the settlement on this ground when the release was first sent to him in November of 2023.” “As such,” concluded the motion court, “defendants demonstrated that plaintiff agreed to the material terms of the settlement.” Takeaway Kellinger reaffirms the principle that under CPLR 2104, a settlement agreement can be enforceable if it is in writing and subscribed by the party or their attorney—even if the agreement is made via email. The decision also reflects a strong judicial preference for enforcing settlements that appear clear and mutually agreed upon, even if not formally executed. In Kellinger , the motion court reiterated that once parties reach an agreement, even by email, courts should enforce it “with rigor,” provided the essential terms are clear and there is mutual assent. ___________________________ Jeffrey M. Haber is a partner and co-founder of Freiberger Haber LLP. This article is for informational purposes and is not intended to be and should not be taken as legal advice. Forcelli v. Gelco Corp. , 109 A.D.3d 244, 247-248 (2d Dept. 2013) (internal quotation marks omitted). Id. CPLR § 2014. CPLR 2104 provides, in relevant part that “An agreement between parties or their attorneys relating to any matter in an action, other than one made between counsel in open court, is not binding upon a party unless it is in a writing subscribed by him or his attorney or reduced to the form of an order and entered.” Forcelli , 109 A.D.3d at 248 (internal quotation marks omitted). Forcelli , 109 A.D.3d at 247. Id. Id. at 248 (citations omitted). Id. Id. at 251. Jimenez v. Yanne , 152 A.D.3d 434, 434 (1st Dept. 2017) (finding email communications between counsel sufficiently set forth an enforceable agreement to settle the plaintiffs’ personal injury claims where plaintiffs’ counsel typed his name at the end of the email accepting the offer, thus satisfying CPLR 2104’s requirements); Matter of Phila. Ins. Indem. Co. v. Kendall , 197 A.D.3d 75, 79 (1st Dept. 2021). This Blog previously examined the enforceability of emails and the subscription requirement of CPLR 2104 on several occasions. Some examples include: Second Department Reaffirms That E-mails Between Counsel Can Be Sufficient to Satisfy the Writing and Signature Requirement for Stipulations Pursuant to CPLR 2104 ; Did You Unintentionally Enter Into A Settlement Agreement by Email? ; and Emails Following Mediation Sufficient to Confirm Settlement of Third-Party Contractual Indemnification Claim . To read additional articles in which we examined the enforceability of emails, please see the  BLOG  tile on our  website  and search for “email”, or any other commercial litigation issue that may be of interest to you. Slip Op. at *2 (citing Jimenez , 152 A.D.3d at 434). Id. at *3. Id. Id. Id. Id. (citations omitted). Id. at *3-*4 (citation omitted).

By:  Jeffrey M. Haber As readers of this Blog know, a “cause of action to recover damages for fraudulent misrepresentation requires 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.” When addressing the element of justifiable reliance, the “general rule” is that “if the facts represented are not matters peculiarly within the party’s knowledge, and the other party has the means available to him of knowing, by the exercise of ordinary intelligence, the truth or the real quality of the subject of the representation, he must make use of those means, or he will not be heard to complain that he was induced to enter into the transaction by misrepresentations.” Where, however, matters are within the “peculiar knowledge” of the seller, “as is” and “no reliance” clauses in the parties’ agreement will not save a defendant from claims of fraudulent misrepresentations. When dealing with real estate transactions, fraudulent misrepresentation claims “must be analyzed within the doctrine of caveat emptor.” “New York adheres to the doctrine of caveat emptor and imposes no liability on a seller for failing to disclose information regarding the premises when the parties deal at arm’s length, unless there is some conduct on the part of the seller which constitutes active concealment.”   However, where affirmative conduct “on the part of the seller rises to the level of active concealment, a seller may have a duty to disclose information concerning the property,” but the conduct must be “more than mere silence.” “To maintain a cause of action to recover damages for active concealment, the plaintiff must show, in effect, that the seller or the seller’s agents thwarted the plaintiff’s efforts to fulfill his responsibilities fixed by the doctrine of caveat emptor.” In the Bartlett Plaza, LLC v. Jose , 2025 N.Y. Slip Op. 05662 (2d Dept. Oct. 15, 2025) ( here ), the  Appellate Division, Second Department, affirmed the dismissal of a fraud claim where the buyer of real property sued the sellers and their agent, alleging misrepresentations about a tenant’s occupancy. The Court dismissed the claim, ruling the buyer failed to exercise due diligence and could not prove justifiable reliance. Plaintiff commenced the action seeking damages for fraud and breach of contract relating to its purchase of defendants’ commercial property on Bartlett Street in Brooklyn (the “Property”). The Property was advertised for sale by the sellers through a listing by defendant, The Corcoran Group Inc., a/k/a The Corcoran Group (“Corcoran”), their real estate agent. The listing indicated that the Property housed an active two-bay auto mechanic garage, but that the premises could be “delivered vacant” or that the “tenants willing to sign short term lease with new owners”. On February 5, 2020, the sellers entered into a Contract of Sale with plaintiff, wherein the sellers agreed to sell the property to plaintiff for $4,000,000. The parties also executed a Rider to the Contract of Sale (the “Rider”) and a “Post-Closing Possession Agreement (“PCPA”), which set forth additional terms relating to delivery of the property following the closing. At the time the parties executed the Contract of Sale, Rider and PCPA, the Property was occupied by an auto repair shop doing business as Robel & Sons Auto Repair, Corp. (“Robel”), of which plaintiff was aware. The sellers did not own or control the business. It was owned by a third-party named Robel De La Cruz, Jr. (“De La Cruz”). Plaintiff and defendants closed title on January 21, 2021. Robel remained in possession of the auto repair shop throughout the Holdover Period as defined in the PCPA ( e.g. , January 21, 2021 through April 21, 2021) and through the Outside Date, also defined in the PCPA ( e.g. , May 21, 2021), resulting in the escrow funds being released to plaintiff in accordance with the PCPA. The Property remained occupied by Robel at the time plaintiff started the action on October 27, 2021. Plaintiff commenced the action, inter alia , to recover damages for fraud, breach of contract, and negligence, alleging that, despite the terms of the contract and the assurances of the sellers and their listing agent, that (a) the sellers were the sole occupants of the Property, (b) the Property was not occupied by any third-party tenant, and (c) the Property would be delivered vacant, the Property was occupied at the time of closing by Robel pursuant to a multiyear lease. With respect to the fraud claim, plaintiff alleged that “ hortly after Closing, contrary to the representations made by Defendants, Plaintiff discovered that Defendants were not actually in possession of the Premises;” that “Defendant represented on numerous occasions that no tenants occupied the Premises and that Defendants were in sole possession of the space;” that “Defendants’ representations were knowingly false, as was in possession and operating a business from the garage space in the Premises;” that “ s a result of Plaintiffs reliance of Defendants’ intentional misrepresentations, Plaintiff was forced to negotiate with to gain possession of the Premises” and that “ n order to remove , Plaintiff was forced to pay $350,000.00 for his move”.  In their answer, the sellers interposed various affirmative defenses in addition to counterclaims for a judgment declaring that they fully performed under the agreements and for an award of contractual attorneys’ fees as a prevailing party. Additionally, the sellers asserted a crossclaim against Corcoran and the other defendant for indemnification and contribution. The sellers subsequently brought a motion for summary judgment, maintaining that plaintiff was aware, or should have been aware using due diligence, that a tenant occupied the Property when plaintiff executed the Contract of Sale and PCPA and when it closed title, and that all of the sellers’ contractual payment obligations under the PCPA were satisfied either through direct payments or by reason of the release of the escrow funds as “liquidated damages” on the Outside Date. Corcoran cross-moved for summary judgment, claiming that it did not owe a duty to plaintiff. In support of its motion for summary judgment, the sellers submitted an affidavit in which it was averred, among other things, that between December 2019 and before the commencement of the Covid-19 pandemic, they met with plaintiff’s principal on multiple occasions at the Property; that during these meetings the parties walked through the Property, including in and out of the auto repair shop; that De La Cruz was present during many of those walk-throughs; that De La Cruz was the Property’s longstanding tenant; that the sellers planned to relocate De La Cruz when the sellers acquired a new property; and that the sellers needed weeks or months following a closing on the Properly to relocate De La Cruz in a new location. The sellers also submitted a copy of the listing, indicating that a “tenant” existed on the Property. The motion court held that the sellers’ submissions established that no misrepresentations were made to plaintiff with respect to De La Cruz. The motion court went on to say that plaintiff failed to allege reasonable reliance on any misrepresentation, holding that “ s a matter of law, a sophisticated plaintiff cannot establish that it entered into an arm’s length transaction in justifiable reliance on alleged misrepresentations if that plaintiff failed to make use of the means of verification that were available to it”. The motion court explained that “Plaintiff not allege that it made an inquiry or took steps to ascertain who owned Robel, nor it submit proof that the alleged misrepresentation as to possession was a matter peculiarly within the knowledge or that there were no means readily available by which plaintiff could have determined its truth.” “Thus,” concluded the motion court, “under the circumstances, even if there was a misrepresentation by the as to possession or ownership of Robel, plaintiff failed to show that its reliance on the alleged misrepresentation was justifiable.” “As a result,’ concluded the motion court, “that part of the motion for dismissal of plaintiff’s first cause of action for fraud is granted.” On appeal, the Second Department affirmed. The Court held that “the sellers demonstrated their prima facie entitlement to judgment as a matter of law dismissing the first cause of action, alleging fraud, … against them by establishing that even if there was a material misrepresentation, any reliance thereon was unreasonable, since the plaintiff had the means available to it of knowing, by the exercise of ordinary intelligence, the existence and status of the third-party tenant.” The Court also held that the motion court “properly granted that branch of Corcoran’s cross-motion which was for summary judgment dismissing the complaint … against it.” The Court found that “Corcoran demonstrated, prima facie, that it did not actively conceal the third-party tenant’s existence and status and did not thwart the plaintiff’s efforts to fulfill its responsibilities fixed by the doctrine of caveat emptor .” Takeaway A successful claim for fraudulent misrepresentation requires proof of a false statement or omission made knowingly to induce reliance, justifiable reliance by the plaintiff, and resulting injury. With regard to the reliance element, it must be justifiable. The courts have consistently held that if the facts are not exclusively within the defendant’s knowledge and the plaintiff had the means to uncover the truth through reasonable diligence, then the plaintiff cannot later claim to have been misled. This principle was central to the Court’s decision in Bartlett Plaza. As discussed, the buyer alleged fraud, claiming the sellers and their real estate agent misrepresented that the property would be delivered vacant, while in fact, it was occupied by a third-party tenant operating an auto repair shop. The Court found that plaintiff had ample opportunity to discover the tenant’s presence through site visits and contract documents, which referenced the tenant. Plaintiff’s failure to investigate undermined its claim of justifiable reliance. The decision also underscores the point that New York courts continue to adhere strictly to the doctrine of caveat emptor in arm’s-length real estate transactions. This means that buyers are expected to conduct their own due diligence and cannot later claim fraud if they fail to investigate reasonably discoverable facts. Additionally, the Court reaffirmed the principle that active concealment, not mere silence, is required to impose a duty on the seller to disclose information. Since the sellers and agent did not actively prevent plaintiff from discovering the tenant’s occupancy, and the plaintiff failed to exercise due diligence, the Court affirmed the dismissal of the fraud claims. Further, the ruling makes clear that a buyer’s reliance on a seller’s representations is not justifiable if the buyer had access to information that would have revealed the truth through ordinary intelligence or reasonable inquiry. In Bartlett Plaza , the buyer had walked through the property, observed the tenant, and had access to documents referencing the tenant’s presence, yet failed to investigate further. Ultimately, Bartlett Plaza reinforces the importance of due diligence in real estate transactions and illustrates how courts apply the doctrine of caveat emptor to assess the reasonableness of a buyer’s reliance on seller representations. ___________________________________ Jeffrey M. Haber is a partner and co-founder of Freiberger Haber LLP. This article is for informational purposes and is not intended to be and should not be taken as legal advice. R. Vig Props. v. Rahimzada , 213 A.D.3d 871, 872 (2d Dept. 2023) (citations and internal quotation marks omitted). We have examined the element of justifiable reliance in numerous articles. Here are some of the more recent articles for your review : Fraud Notes: First Department Talks About Misrepresentations of Fact and Justifiable Reliance ; Failure To Read Relevant Documents Prevents Claim Of Justifiable Reliance ; Publicly Available Information, Justifiable Reliance and The Caveat Emptor Doctrine ; Fraudulent Inducement: Exculpatory Clauses, Representations and Warranties, and Justifiable Reliance ; and Fraud Notes: Justifiable Reliance, Particularity and Duplication . To read additional articles in which we examined fraud causes of action, please see the BLOG tile on our website and search for any fraud, or other commercial litigation, issue that may be of interest you. Danann Realty v. Harri s , 5 N.Y.2d 317, 322 (1959) (citations and internal quotation marks omitted). TIAA Global Investments, LLC v. One Astoria Square LLC , 127 A.D.3d 75, 87 (1st Dept. 2015) (citing Danann , 5 N.Y.2d at 322). 98 Gates Avenue Corp. v. Bryan , 225 A.D.3d 647, 649 (2d Dept. 2024) (citation omitted). Id. (citations and internal quotation marks omitted). Id. at 649-50 (citations and internal quotation marks omitted). Razdolskaya v. Lyubarsky , 160 A.D.3d 994, 996 (2d Dept. 2018). Slip Op. at *2. Id. Id. (citing R. Vig Props. , 213 A.D.3d 8at 73;  Schottland v. Brown Harris Stevens Brooklyn, LLC , 107 A.D.3d 684, 686 (2d Dept. 2013); Glazer v. LoPreste , 278 A.D.2d 198, 199 (2d Dept. 2000)).

By: Jonathan H. Freiberger Today’s article addresses M & T Bank v. Givens , a case decided on October 15, 2025, by the Appellate Division, Second Department. Givens addresses three issues encountered in mortgage foreclosure actions: motions for extensions of time pursuant to CPLR 2004 , the 90-day requirement to conduct foreclosure sales pursuant to RPAPL 1351(1) and the tolling of interest due to a lender’s delays in prosecuting its foreclosure action. CPLR 2004 CPLR 2004 provides that “ xcept where otherwise expressly prescribed by law, the court may extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed.” “CPLR 2004 vests the trial court with discretion to extend the time to perform any act” and, when considering a motion made pursuant to that provision, “the court may properly consider factors such as the length of the delay, whether the opposing party has been prejudiced by the delay, the reason given for the delay, whether the moving party was in default before seeking the extension, and, if so, the presence or absence of an affidavit of merit.” Tewari v. Tsoutsouras , 75 N.Y.2d 1, 11-12 (1989) (citations omitted); see also Nationstar Mortgage, LLC v. Dunn , 230 A.D.3d 1327, 1330 (2 nd Dep’t 2024). RPAPL 1351(1) In this BLOG’s article “ RPAPL 1351(1) Requires a Foreclosure Sale to Occur Within Ninety Days of the Date of the Judgment of Foreclosure and Sale ,” we, for the first time, discussed RPAPL 1351(1)’s requirement that judgments of foreclosure and sale direct that foreclosure sales occur within ninety days of the judgment. As discussed in the article, in order to vacate a judgment of foreclosure and sale and/or set aside a sale because a sale did not occur within 90 days pursuant to RPAPL 1351(1), a borrower would have to show that “the delay of the foreclosure sale prejudiced a substantial right.” Wells Fargo Bank, N.A. v. Singh , 204 A.D.3d 732, 734 (2 nd Dep’t 2022); see also Bank of New York Mellon v. Adam P10tch, LLC , 226 A.D.3d 497, 498 (1 st Dep’t 2024). The same is true if the statutorily required “ninety day” language is omitted from a judgment of foreclosure and sale. Wells Fargo Bank, N.A. v. Malik , 203 A.D.3d 1110, 1112 (2 nd Dep’t 2022) (“since the defendant does not allege that any substantial right of his was prejudiced by the omission of the statutory language from the judgment of foreclosure and sale, the Supreme Court properly declined to vacate the notice of sale on that ground”). Tolling of Interest In prior BLOG articles, we discussed the court’s power to toll the accrual of interest in mortgage foreclosure actions. We noted that the calculation of interest is an important component of the of the sums due to the lender. CPLR 5001(a) provides, in relevant part, that “in an action of an equitable nature, interest and the rate and date from which it shall be computed shall be in the court’s discretion.” See also U.S. Bank, N.A. v. Peralta , 191 A.D.3d 924, 925-26 (2 nd Dep’t 2021);. Wells Fargo Bank, N.A. v. Daniel , 231 A.D.3d 899, 901 (2 nd Dep’t 2024) (citations omitted). In that regard, a “foreclosure action is equitable in nature and triggers the equitable powers of the court.” U.S. Bank Nat. Ass’n v. Williams , 121 A.D.3d 1098, 1101-02 (2 nd Dep’t 2014) (numerous citations and internal quotation marks omitted); see also Wells Fargo , 231 A.D.3d at 901. Once invoked, the Court’s equity powers are “as broad as equity and justice require.” Deutsche Bank National Trust Co. v. Armstrong , 218 A.D.3d 738, 739 (2 nd Dep’t 2023) (citations and internal quotation marks omitted). The court, in exercising its discretion, “is governed by the particular facts in each case.” U.S. Bank , 191 A.D.3d at 926 (citations omitted). A court’s authority can be used to toll interest in, inter alia , foreclosure actions, where the lender’s conduct “is deemed wrongful” or where there has been “unexplained delay” in the prosecution of the action. Wells Fargo , 231 A.D.3d at 901 (citations and internal quotation marks omitted); see also Deutsche Bank Trust Company Americas v. Knights , 231 A.D.3d 1016, 1018 (2 nd Dep’t 2024). M & T Bank v. Givens In 2016, lender commenced a foreclosure action against borrower. A judgment of foreclosure and sale was issued in November of 2019, directing, inter alia , the sale of the subject property within 90 days. While the sale was scheduled to occur within the requisite timeframe, it was postponed at the lender’s request. In June of 2022, the lender moved pursuant to CPLR 2004 to extend the time to conduct the sale. The borrower opposed the motion and cross-moved to toll the accrual of interest from the end of the 90-day period to the sale date. The motion court extended lender’s time to conduct a foreclosure sale and denied the borrower’s cross-motion. The borrower appealed. The Second Department modified the motion court’s order by tolling the accrual of interest. The Court let stand that portion of the motion court’s order extending the lender’s time to conduct a foreclosure sale. As to the latter, the Court found that that the motion court “providently exercised its discretion” in granting the lender’s motion pursuant to CPLR 2004 as the lender “demonstrated that the delay was largely attributable to, among other things, the COVID-19 pandemic.” (Citations, internal quotation marks, brackets and ellipses omitted.) the Court also found that the borrower failed to demonstrate and prejudice from the delay. (Citations omitted). As to the tolling of the accrual of interest, after discussing authorities like those cited supra , the Court stated: Here, contrary to the 's contention, the Supreme Court improvidently exercised its discretion in denying the 's cross-motion to toll the accrual of interest on the subject mortgage loan. The asserted that the COVID-19 pandemic impacted its ability to proceed with the sale of the property. However, the pandemic-related stays on foreclosure sales did not go into effect until after the expiration of the 90-day deadline to conduct the sale of the property and the failed to adequately explain its failure to conduct the sale within that 90-day period. Under the circumstances presented, the court should have granted the 's cross-motion to the extent of tolling the accrual of interest on the subject mortgage loan after February 17, 2020 . Jonathan H. Freiberger is a partner and co-founder of Freiberger Haber LLP. This article is for informational purposes and is not intended to be and should not be taken as legal advice. This BLOG has written dozens of articles addressing numerous aspects of residential mortgage foreclosure. To find such articles, please see the BLOG tile on our website and search for any foreclosure, or other commercial litigation, issue that may be of interest you. This BLOG has previously addressed RPAPL 1351(1). See, e.g ., < here =">here"> and < here =">here"> . This BLOG has previously addressed the issue of the Court’s discretion to toll the accrual of interest due to a lender in foreclosure actions. See, e.g. , < here =">here"> and < here =">here"> .

By: Jeffrey M. Haber On numerous occasions, this Blog has examined the attorney-client privilege, the common interest doctrine, and the attorney work product doctrine. Today, we take another opportunity to explore the contours of these privileges. In Simpson v. Chassen , the New York Supreme Court compelled the production of a joint defense agreement (“JDA”), rejecting claims that it was protected under the attorney-client privilege or the attorney work product doctrine. The motion court found that the JDA did not establish an attorney-client relationship or facilitate legal advice, and thus was not privileged. It also ruled that the JDA lacked legal analysis or strategy, rendering it unprotected as attorney work product. Disclosure and The Attorney-Client Privilege The Civil Practice Law and Rules (“CPLR”) directs that there shall be “full disclosure of all matter material and necessary in the prosecution or defense of an action.” Notwithstanding, the CPLR establishes three categories of materials protected from disclosure: privileged matter, which is afforded absolute immunity from discovery ; attorney work product, which is also afforded absolute immunity ; and trial preparation material, which is subject to disclosure only on a showing of substantial need and undue hardship in obtaining substantially equivalent material by other means. As the New York Court of Appeals noted, there exists an obvious tension between the policy favoring full disclosure and the policy permitting parties to withhold relevant information. Consequently, the burden of establishing any right to protection is on the party asserting it; the protection claimed must be narrowly construed; and its application must be consistent with the purposes underlying immunity. The burden cannot be satisfied by conclusory assertions of privilege. Rather, the proponent of the privilege must set forth competent evidence establishing the elements of the privilege. The attorney-client privilege is the oldest among common-law evidentiary privileges. It is intended to foster open and candid dialogue between lawyer and client and is deemed essential to effective representation. In order for the privilege to apply, the communication from attorney to client must be made for “the purpose of facilitating the rendition of legal advice or services, in the course of a professional relationship.” The communication itself must be primarily or predominantly of legal character. Communications Protected From Disclosure The attorney-client privilege insulates from disclosure a discreet category of communications between attorney, client, and, in some instances, third parties that assist the attorney to formulate and render legal advice. The privilege does not apply merely because a statement was uttered by or to an attorney (or an attorney’s agent). Nor does it attach simply because a statement conveys advice that is legal in nature. The privilege is not limited, however, to communications directly between the client and counsel. It also encompasses communications between an attorney and a client’s agent or representative, provided that the communications are intended to facilitate the provision of legal services by the attorney to the client. It does not, however, protect communications between a non-lawyer and a client that involve the conveyance of legal advice offered by the non-lawyer, except when the non-lawyer is acting under the supervision or the direction of an attorney. Moreover, the privilege protects from disclosure communications among corporate employees that reflect advice rendered by counsel to the corporation. “A privileged communication should not lose its protection if an executive relays legal advice to another who shares responsibility for the subject matter underlying the consultation.” This follows from the recognition that since the decision-making power of the corporate client may be diffused among several employees, the dissemination of confidential information to such persons does not defeat the privilege. The Common Interest Protection Under the common interest doctrine , the presence of a third party will not destroy a claim of privilege where two or more clients separately retain counsel to advise them on matters of common legal interest. The doctrine originated in the context of criminal cases, where the courts “allowed the attorneys of criminal co-defendants to share confidential information about defense strategies without waiving the privilege as against third parties.” In New York, the Court of Appeals first recognized the common interest doctrine in  People v Osorio , 75 N.Y.2d 80 (1989). Thereafter, New York courts have applied the common interest doctrine to both criminal and civil matters, to communications of both co-plaintiffs and co-defendants, but always in the context of pending or reasonably anticipated litigation. Although federal courts have extended the exception regardless of whether litigation is pending or threatened, the Court of Appeals has declined to do so. In declining to extend the doctrine, the Court noted that limiting the doctrine “to situations where the benefit and the necessity of shared communications are at their highest” –  i.e. , during litigation or when there is the threat of litigation – reduces the risk of misuse.   The Court reasoned that “the common interest doctrine promotes candor that may otherwise have been inhibited” between co-litigants. Otherwise, “the threat of mandatory disclosure may chill the parties’ exchange of privileged information and therefore thwart any desire to coordinate legal strategy.” The Court rejected the notion that there is a shared common legal interest in a commercial transaction or other common situation “outside the context of litigation” or the threat of litigation. The Court further rejected the argument that limiting the exception to litigation “will create an anomalous result: clients who retain separate attorneys … cannot protect their shared communications absent pending litigation but the same communications made in the absence of litigation would be privileged if had simply hired a single attorney to represent them” in a non-litigation context.  The Court reasoned that “ n the joint client or co-client setting … the clients indisputably share a complete alignment of interests in order for the attorney, ethically, to represent both parties. Accordingly, there is no question that the clients share a common identity and all joint communications will be in furtherance of that joint representation.”   But when clients retain separate attorneys to represent them on a matter of common legal interest, that is not so. “It is less likely that the positions of separately-represented clients will be aligned such that the attorney for one acts as the attorney for all, and the difficulty of determining whether separately-represented clients share a sufficiently common legal interest becomes even more obtuse outside the context of pending or anticipated litigation.” “Consequently,” held the Court, “although a litigation limitation may not be necessary in a co-client setting where the fact of joint representation alone is often enough to establish a congruity of interests, it serves as a valuable safeguard against separately-represented parties who seek to shield exchanged communications from disclosure based on an alleged commonality of legal interests but who have only commercial or business interests to protect.” The Attorney Work Product Doctrine The attorney work product doctrine protects those materials prepared by an attorney, acting as an attorney, which contain the attorney’s analysis and trial strategy. The work product of an attorney consists of interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and other tangible and intangible things. As with the attorney-client privilege, the burden of showing that material is protected under the doctrine is on the party asserting the protection. Conclusory assertions that documents constitute attorney work product or material prepared for litigation will not suffice. In Simpson v. Chassen , 2025 N.Y. Slip Op. 33702(U) (Sup. Ct., N.Y. County Sept. 29, 2025) , the foregoing principles were considered by the Supreme Court in a case involving a motion to compel the production of a joint defense agreement. Simpson v. Chassen Plaintiffs brought the action to reverse “a coup d’état” allegedly executed by defendant Jared Chassen (“Chassen”) in which defendant sought to seize control over certain entities controlled by plaintiff Jeffrey Simpson (“Simpson”) ( e.g. , Arch Real Estate Holdings LLC (“Arch”) and JJ Arch LLC (“JJ Arch”) (collectively, Arch and JJ Arch are the “Arch Entities”)). In addition, Plaintiffs sought to redress defendant’s alleged conduct that left Simpson unable to exercise control over bank accounts maintained by the Arch Entities and their affiliates and subsidiaries at defendant First Republic Bank (“First Republic”), which allegedly left the Arch Entities unable to use such accounts to pay for such necessities as payroll, subcontractors, materialmen, and insurance. Plaintiff moved pursuant to CPLR 3101 and 3124 to compel Chassen to produce a joint defense agreement between Chassen, 608941 NJ, Inc. (“Oak”), and related parties in August 2023. Simpson contended that the JDA was “material and necessary” to the litigation because it would reveal “collusion” between Chassen and Oak to “oust Mr. Simpson” from management, circumvent corporate governance controls, and relieve Oak from guaranty liabilities to the detriment of non-Oak investors. Defendants opposed the motion, arguing, inter alia , that the JDA is protected by the common interest and attorney-work-product privileges and that Simpson failed to show that its disclosure was material to any pending claims or defenses. The motion court held “that the JDA not a privileged communication exempt from discovery.” The motion court explained that “the JDA merely state the parties’ intention that all information they share with each other remain subject to the attorney-client privilege, despite their disclosure to each other.” Significantly, noted the motion court, the JDA “expressly state that it create no attorney-client relationship …  and … not a communication from an attorney to a client made for the purpose of facilitating the rendition of legal advice or services, in the course of a professional relationship.” The motion court also found “Chassen’s contention that the JDA qualifie as attorney work-product” to be “unavailing”. The motion court said that “ lthough the JDA was prepared by counsel, … , it nevertheless “contain only standard language not uniquely reflecting a lawyer’s learning and professional skills, including legal research, analysis, conclusions, legal theory or strategy.” The motion court concluded, therefore, “ t essentially a standard form agreement.” Accordingly, the motion court granted the motion. Takeaway Simpson reinforces the principle that the common interest doctrine is limited to situations involving pending or reasonably anticipated litigation. This means that parties who share legal interests—but are not involved in litigation—may not be able to rely on the doctrine to shield their communications from disclosure. The ruling, therefore, makes clear that joint defense agreements or common interest agreements are not automatically privileged and may be subject to disclosure—even if prepared by counsel. _______________________________ Jeffrey M. Haber is a partner and co-founder of Freiberger Haber LLP. This article is for informational purposes and is not intended to be and should not be taken as legal advice. We examined these privileges in the following articles: “ Revisiting The Attorney-Client Privilege, The Common Interest Doctrine and The Work Product Doctrine ”; “ Reliance on Counsel Found to Waive Attorney-Client Privilege ”; “ Subject-Matter Waiver of the Attorney-Client Privilege ”; “ Attorney-Client Privilege and The Functional-Equivalent Doctrine ”; “ Court Holds That A Common Interest Agreement Bars Disclosure of Material Protected by The Attorney-Client Privilege ”; and “ Court Holds Common Interest Agreement Covers Privileged Documents Predating the Litigation ”. CPLR 3101(a). CPLR 3101(b). CPLR 3101(c). CPLR 3101(d)(2); see also Spectrum Sys. Intl. Corp. v. Chemical Bank , 78 N.Y.2d 371 (1991). Spectrum Sys. , 78 N.Y.2d at 377. Id. ; Matter of Priest v. Hennessy , 51 N.Y.2d 62, 69 (1980); Matter of Jacqueline F. , 47 N.Y.2d 215 (1979). Delta Fin. Corp. v. Morrison , 15 Misc. 3d 308, 316-17 (Sup. Ct., Nassau County 2007); see also Martino v. Kalbacher , 225 A.D.2d 862 (3d Dept. 1996). 8 Wigmore, Evidence § 2290 (McNaughton rev. 1961). See Matter of Vanderbilt (Rosner—Hickey) , 57 N.Y.2d 66 (1982). Rossi v. Blue Cross & Blue Shield of Greater N.Y. , 73 N.Y.2d 588, 593 (1989). Id. at 594. See United States v. Kovel , 296 F.2d 918, 922 (2d Cir. 1961); see also Westinghouse Elec. Corp. v. Republic of Philippines , 951 F.2d 1414, 1424 (3d Cir. 1991). See HPD Labs., Inc. v. Clorox Co. , 202 F.R.D 410 (D.N.J. 2001). Delta Fin. , 15 Misc. 3d at 316-17 (citations omitted). Id. (citations omitted). Id. (citations omitted). See SCM Corp. v. Xerox Corp. , 70 F.R.D 508, 518 (D. Conn. 1976). Id. (citation omitted). In re Teleglobe Communications Corp ., 493 F.3d 345, 364 (3d Cir. 2007). See, e.g., Hyatt v. State of Cal. Franchise Tax Bd.,  105 A.D.3d 186 (2d Dept. 2013). E.g., Teleglobe , 493 F.3d at 364;  United States v. BDO Seidman, LLP , 492 F.3d 806, 816 (7th Cir 2007);  In re Regents of Univ. of Cal ., 101 F.3d 1386, 1390-1391 (Fed. Cir. 1996)) Ambac Assur. Corp. v. Countrywide Home Loans, Inc. , 27 N.Y.3d 616, 628 (2016). Id. at 628. Id . Id . Id. at 629-30. Id . at 630-31. Id.  at 631(citation omitted).  Id.  Id.  (citations omitted). See Weinstein-Korn-Miller, N.Y. Civ. Prac. ¶ 3101.44 (2d ed.); see also Aetna Cas. & Sur. Co. v. Certain Underwriters at Lloyd’s , 263 A.D.2d 367 (1st Dept. 1999). Hickman v. Taylor , 329 U.S. 495 (1947). See generally Koump v. Smith , 25 N.Y.2d 287 (1969). See Salzer v. Farm Family Life Ins. Co. , 280 A.D.2d 844 (3d Dept. 2001); Zimmerman v. Nassau Hosp. , 76 A.D.2d 921 (2d Dept. 1980). The summary of the action is taken from the pleadings filed in the action.  Plaintiff maintained that Chassen and Oak colluded to relieve Oak of hundreds of millions of dollars in property loan guarantee obligations related to numerous Arch property investments to the detriment of non-Oak investors. On August 18, 2025, the motion court ordered Chassen to submit the JDA for in-camera inspection. On August 22, 2025, Chassen submitted the JDA to the Court for its review. Slip Op. at *3 (citing Fewer v. GFI Group, Inc. , 78 A.D.3d 412, 413 (1st Dept. 2010)). Id. (quoting id. (internal quotation marks omitted)). Id. (quoting id. (internal quotation marks omitted)). Id. Id. (citing id. ). Id.