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Generally, matters that are not covered by an agreement to arbitrate do not have to be arbitrated. After all, arbitration is a creature of contract. And, because an agreement to arbitrate is governed by the rules of contract interpretation, the courts must “give effect to the contractual rights and expectations of the parties.” Volt Info. Scis., Inc. v. Board of Trustees of Leland Stanford Junior Univ. , 489 U.S. 468, 479 (1989). In other words, “as with any other contract, the parties’ intentions control.” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc. , 473 U.S. 614, 626 (1985).  Where there is a valid agreement to arbitrate, all matters that fall within the scope of that agreement are to be arbitrated. See Silverman v. Benmor Coats , 61 N.Y.2d 299, 309 (1984) (courts will not stay arbitration unless the “sole matter sought to be submitted to arbitration is clearly beyond the arbitrator’s power”). Matters that do not fall within the scope of the agreement will not be arbitrated, unless they are “inextricably interwoven” with the arbitrable ones, in which case “the proper course is to stay judicial proceedings pending completion of the arbitration, particularly where … the determination of issues in arbitration may well dispose of nonarbitrable matters.” Cohen v. Ark Asset Holdings , 268 A.D.2d 285, 286 (1st Dept. 2000); see also Lake Harbor Advisors, LLC v. Settlement Servs. Arbitration and Mediation, Inc. , 175 A.D.3d 479 (2d Dept. 2019); Monotube Pile Corp. v Pile Foundation Constr. Corp. , 269 A.D.2d 531 (2d Dept. 2000). The foregoing principles were recently applied by the Appellate Division, First Department in Protostorm, Inc. v. Foley & Lardner LLP , 2021 N.Y. Slip Op. 02227 (Apr. 8, 2021) ( here ), a legal malpractice action, in which the motion court stayed the action in favor of the arbitration of the law firm’s unpaid legal fees. As discussed, the Court reversed the stay of an arbitration on the grounds that the non-arbitrable matters were inextricably interwoven with the arbitrable ones. In Protostorm , plaintiff retained defendant to maintain a malpractice action against plaintiff’s prior counsel. Thereafter, plaintiff commenced a malpractice action against defendants and other attorneys in the United States District Court for the Eastern District of New York.  Defendants moved to dismiss the federal action based on the lack of subject matter jurisdiction. They also commenced an arbitration proceeding against plaintiff for unpaid legal fees based on the parties’ retainer agreement, which provided that “ ny dispute over fees and/or costs … be submitted to and settled exclusively by binding arbitration.”  The federal action was ultimately dismissed for lack of subject matter jurisdiction. As a result, the court did not rule on whether the arbitration should be stayed.  Plaintiff then commenced an action in New York Supreme Court, alleging the same claim of legal malpractice and moved to stay the arbitration pending resolution of the action. Defendants cross moved to stay the action and compel arbitration. The motion court granted plaintiff’s motion for a stay of arbitration and denied defendants’ cross motion to stay the action in favor of arbitration. The First Department unanimously reversed. The Court held that since there was a valid agreement between the parties to arbitrate any dispute regarding unpaid fees, it had to “compel arbitration of defendants’ claim for unpaid fees ….” Slip Op. at *1 (citing CPLR 7503(a)). And “because plaintiff’s nonarbitrable malpractice claim inextricably intertwined with the arbitrable claim for unpaid fees,” the Court held that “the proper course to stay the action pending completion of the arbitration.” Id. (citations omitted). Such a result, observed the Court, was consistent with decisional authority in the First and Second Departments, where the courts have held that “a nonarbitrable issue can be decided in an arbitration when it is inextricably intertwined with an arbitrable issue, particularly where … the determination of the arbitrable … claim may dispose of the nonarbitrable … claim.” Id. (citations omitted). In holding that the arbitrable and non-arbitrable matters should be arbitrated, the Court distinguished the facts in Protostorm with those in Laboratories Inc. v. Avon Prods. Inc. , 297 A.D.2d 505 (1st Dept. 2002), a case upon which plaintiff relied. There, the court stayed the arbitration pending resolution of the action because the parties’ agreements expressly provided that all disputes regarding the enforcement of the parties’ obligations would be decided in New York courts with the exception of one narrow category of disputes regarding royalties payable, which would be arbitrated. Id. (citing 297 A.D.2d at 506). Additionally, in Primavera , the court stayed the arbitration because numerous preliminary issues needed to be resolved in the action before the arbitration procedure could be invoked. Id. (citing id. ). Takeaway A court will not order a party to submit to arbitration absent evidence of that party’s unequivocal intent to arbitrate the dispute, and unless the dispute falls clearly within the class of claims the parties agreed to arbitrate. Since arbitration is a creature of contract, arbitration clauses must be enforced according to their terms, even if the result is bifurcated litigation. Notwithstanding, where arbitrable and non-arbitrable claims are inextricably interwoven, courts will stay the judicial proceeding pending completion of the arbitration, especially where the determination of issues in arbitration could dispose of non-arbitrable matters. That was the case in Protostorm , where the Court found that “the determination of the arbitrable unpaid fees claim dispose of the nonarbitrable malpractice claim.” Slip Op. at *2.  Thus, by arbitrating both the fee issue and the malpractice issue, the interests of judicial economy could be served and the risk of inconsistent results avoided.

Promissory notes and mortgages, like many other contracts, frequently contain provisions requiring a non-breaching party to provide the breaching party with notice of their default as a condition precedent to taking any action to enforce rights as a result of the breach.  Such action can include, but is not limited to, commencing legal action and/or accelerating the unpaid balance due under the note.  Similarly, default notice provisions may require that, in certain circumstances, the breaching party be afforded an opportunity to cure the default.  These provisions typically provide for the precise manner in which, and the address to which, the notices must be sent. Suffice it to say, notice provisions are material aspects of many contracts.  As a result, courts strictly enforce such notice provisions.  Accordingly, the failure to adhere to the provision’s requirements, and/or the failure to prove that you have adhered to the provision’s requirements, could have serious consequences. Such was the case in Deutsche Bank Nat. Trust Co. v. Bucicchia , a case decided by the Appellate Division, Second Department, on April 7, 2021.  The borrower wife in Bucicchia defaulted in her repayment obligations under a promissory note secured by a mortgage on real property owned by her and her husband.  Sections 22 and 15 of the mortgage “require service of a specified default notice as a condition precedent to the acceleration of the mortgage loan” (citation omitted) and “ ursuant to Section 15, the notice of default must be ‘mailed by first class mail or … actually delivered to notice address if sent by other means” (some brackets and ellipses in original).  As is typically the case, the mortgage in Bucicchia also provided “the notice address is the address of the mortgaged property unless the plaintiff is notified of another address by the borrower.” Lender commenced a mortgage foreclosure action.  Defendants, in their answer, asserted various affirmative defenses including, but not limited to, the failure to comply with the default notice provisions in the mortgage and failure to comply with the statutory notice provisions of RPAPL 1304.  This BLOG has written extensively on RPAPL 1304 < HERE =">HERE"> , < HERE =">HERE"> , < HERE =">HERE"> , < HERE =">HERE"> , < HERE =">HERE"> , < HERE =">HERE"> , and, accordingly, such issues will not be addressed in today’s article. Lender moved for summary judgment on the complaint and to dismiss defendants’ affirmative defenses and defendants cross-moved for summary dismissing the complaint.  Supreme court granted lender’s motion and dismissed defendants’ affirmative defenses except for the two defenses related to notice under the mortgage and under RPAPL 1304 and, as to those, the court scheduled a non-jury trial.  Defendants’ cross-motion was denied. After the trial, the court, inter alia , ruled in lender’s favor and struck defendants’ answer.  A referee was subsequently appointed to compute the amounts due to lender.  The referee’s report was confirmed and a judgment of foreclosure and sale was entered.   On defendants’ appeal, the Second Department, inter alia , reversed the judgment of foreclosure and sale, reinstated the affirmative defenses related to improper notice under the mortgage and RPAPL 1304, denied lender’s motion to the extent that it sought to confirm the referee’s report of sale and dismissed the complaint as against defendants.  The Court found that lender “failed to establish it complied with the notice requirements of the mortgage agreement.”  The Court explained: At the nonjury trial, the plaintiff relied upon the testimony of its sole witness, who testified as to the standard office mailing procedure of the plaintiffs prior and present loan servicer, but did not and could not attest to the practices and procedures of Walz Group, a third-party entity that was hired to undertake the requisite service of the notices on the defendants in accordance with the requirements of the mortgage agreement …. The plaintiffs witness expressly testified that she did not have familiarity with Walz Group's mailing practices "outside of their communications with" the loan servicer. In addition, the witness attested that she never mailed anything through Walz Group, was never employed by Walz Group, and was never trained by Walz Group in their procedures for mailing notices. Further, she testified that she could not say if Walz Group mailed the notices by first-class mail.  Thus, since the plaintiffs sole witness did not have "knowledge of the mailing practices of the entity which sent the notice[ s ]" (Deutsche Bank Natl. Trust Co. v Nelson, 183 AD3d 557, 558; see HSBC Bank USA, NA. v Sawh, 177 AD3d 959, 961), and the business records that were submitted in evidence failed to show that … the notices of default were actually made to the defendants or that the default notices were actually delivered to their "notice address," the plaintiff failed to establish … that the notices of default were sent in accordance with the terms of the mortgage agreement (see US Bank NA v Cope, 175 AD3d <527> at 530; LNV Corp. v Sofer, 171 AD3d <1033> at 1037).  Similarly, the Court in Deutsche Bank Nat. Trust Co. v. Crimi , 184 A.D.3d 707 (2 nd Dep’t 2020), addressing this issue, stated that “the attorney’s affirmation submitted by the plaintiff which stated that the purported 2010 notice was ‘in full compliance with the terms of the mortgage’ was unsubstantiated and conclusory either the attorney’s affirmation nor the copy of the purported 2010 notice established ‘that the required notice was mailed by first class mail or actually delivered to the notice address if sent by other means, as required by the mortgage agreement.’”  See also, U.S. Bank Nat. Assoc. v. Sabloff , 153 A.D.3d 879, 881 (2 nd Dep’t 2017). TAKEAWAY Care should be taken to follow the default notice provisions in promissory notes and mortgages (as well as other notice provisions).  Similarly, evidence of compliance should be maintained and presented to the court to demonstrate such compliance.

Under well-settled principles, summary judgment in lieu of complaint is available for an instrument for the payment of money only. In considering such a motion, the courts will look at the four corners of the instrument sued upon in determining whether the instrument qualifies as one for the payment of money only. here.=">here."> In Yang v. Dai , 2021 N.Y. Slip Op. 02125 (1st Dept. April 6, 2021) ( here ), the Appellate Division, First Department applied the foregoing principles in affirming the grant of summary judgment in lieu of a complaint on a note that was part of various business dealings between defendant and plaintiff’s spouse (a non-party). On December 28, 2018, plaintiff Jinmei Yang, as lender, and defendant Shang Dai, as borrower, executed an Amended and Restated Secured Promissory Note (the “Note”) in the sum of $1,150,000.00. The Note was guaranteed by defendant Da Wei Gongsun pursuant to a Continuing Guaranty (the “Guaranty”) executed on the same date as the Note.  Defendants defaulted on the payments, causing plaintiff to file the motion for summary judgment in lieu of a complaint. In support of the motion, plaintiff submitted an affidavit confirming that she wired $1,150,000.00 to defendant Dai, authenticating the loan documents on which she relied, confirming defendants’ default in payment on the Note, and providing the calculations supporting the amount due ($1,123,809.42). The motion court held that the affidavit and supporting documents sufficed to state a prima facie case. ( Here .) In opposition, defendant asserted that the Note was inextricably intertwined with various business dealings he had with plaintiff’s husband, nonparty Xiajie Huang, related to, among other things, a joint venture to invest in DaDong Restaurant (the “Restaurant”) via the formation of DaDong LLC. Defendant claimed that Huang offered to lend him the money represented by the Note to facilitate that investment.  The lender under the Note was plaintiff because Huang conducted business in the United States through his wife’s bank account. Defendant insisted that the terms of the original Note and all amendments were between him and Huang and that plaintiff was involved in name only. Defendant also claimed that he was fraudulently induced by Huang’s misrepresentations to borrow the money, believing the Restaurant would generate profits defendant could use to repay the loan. The venture ultimately failed, and defendant lost his entire investment. Defendant Da Wei Gongsun, the guarantor on the Note, also asserted that he was fraudulently induced to sign the Guaranty by Huang’s misrepresentations about the potential success of the Restaurant.  The motion court granted plaintiff’s motion. The motion court found that defendant “unconditionally promise ” to pay $1,150,000.00 to plaintiff pursuant to the terms of the Note. “Nowhere in the seven-page Note,” observed the motion court, was “there any reference to the Restaurant, to Huang, or to any business venture with Huang or anyone else.” “Nothing in the Note,” continued the motion court, “indicate that the Note inextricably intertwined with any related or unrelated business transaction.”  The motion court noted that, although the Note referenced an amended and restated pledge and security agreement, which the parties executed on the same day as the Note, it did “not change the fact that the Note an instrument for the payment of money only not dependent upon, or inextricably intertwined with, the success or failure of the Restaurant.” The referenced Amended and Restated Pledge and Security Agreement executed on the same date as the Note is between defendant Shang Dai as Pledgor, Dai’s company True Taste as Issuer, and plaintiff Jinmei Yang as the Secured Party. There, defendant pledged “100% of the membership interest of the Issuer , which was the managing member and the legal and beneficial owner of 10 Units or 10% of the issued and outstanding membership interests of Dadong Management LLC, a Delaware limited liability company (the “Company”), to the Secured Party ...” But the fact that defendant collateralized the Note with his or his company’s membership interest in the Restaurant’s operating company, or that he invested the loan money in the Restaurant company with the mistaken belief the Restaurant would succeed, does not change the fact that the Note is an instrument for the payment of money only not dependent upon, or inextricably intertwined with, the success or failure of the Restaurant.  The motion court also rejected defendant’s fraud in the inducement allegations, holding that they were “insufficient to negate the comprehensively detailed and carefully drafted multi-page Note for the payment of money only.” Accordingly, the motion court granted plaintiff’s motion and directed the entry of judgment in favor of plaintiff against defendants for the amount of the loan, plus interest, and attorney’s fees as provided in the Note. On appeal, the First Department affirmed. The Court held, like the motion court, that the Note was an unconditional promise to pay money, which defendant failed to pay: “The December 28, 2018 amended and restated note stated that defendant Shang Dai ‘unconditionally’ promised to pay plaintiff Jinmei Yang by the maturity date in exchange for the loan of $1,150,000 and it is undisputed that defendant Dai defaulted.” Slip Op. at *1. The Court also rejected defendant’s argument that the Note was intertwined with the joint venture, noting that “ t most, the promissory note ‘ part of an investment transaction between sophisticated, counseled parties dealing at arms-length and that the language of the notes [ ] obligated the defendant in his personal capacity.’” Id. (quoting Berlind v. Heinfling , 176 A.D.2d 452, 452 (1st Dept. 1991)). Further, the Court rejected defendant’s argument that because the Note was secured by defendant’s membership interest in a business that he owned, the Note was not an instrument for the payment of money only: That the note was secured by a membership interest in a business owned by defendant does not “alter its essential character as an instrument for the payment of money only and, accordingly, is immaterial to plaintiff’s right to relief pursuant to CPLR 3213.”  Id. (quoting Bhatara v. Futterman , 122 A.D.3d 509, 510 (1st Dept. 2014)). Finally, the Court noted that the profitability of the investment was no defense to a motion for summary judgment under CPLR § 3213: “the fact that the investment was not profitable did not constitute a defense to the note.…” Id. Takeaway As shown above, plaintiff sustained her initial burden of demonstrating entitlement to judgment as a matter of law by submitting proof of the existence of the underlying note and guaranty, the unconditional terms of repayment, and defendants’ failure to make payment. It was incumbent upon defendants to demonstrate by admissible evidence, the existence of a triable issue of fact with respect to a bona fide defense. The courts considering the facts and evidence found that they did not do so.

Corporations are legal entities distinct from their managers. As such, like any shareholder or investor, a corporation can buy shares in another corporation. When a corporation buys enough voting shares of another corporation to control that company, a parent - subsidiary relationship is created.  Specifically, when a corporation buys less than 100%, but more than 50%, of another company, the latter company becomes a regular subsidiary of the former. If the corporation acquires 100% of the voting shares of another company, then the acquired company becomes a wholly owned subsidiary of the other. The difference between a subsidiary and a wholly owned subsidiary, therefore, is the amount of voting control held by the parent company.  As a general matter, the corporate identities of the parent and its regular subsidiaries cannot be disregarded. However, the courts will look beyond the corporate form where necessary to prevent fraud or to achieve equity. Thus, for example, a parent corporation may become a party to its subsidiary’s contract if the parent’s conduct manifests an intent to be bound by the contract. Such intent will be inferred from the circumstances surrounding the transaction, including whether the parent participated in the negotiation of the contract. Indeed, a parent corporation that negotiates a contract but has its subsidiary sign it can be held liable as a party to the contract, if the subsidiary “is a dummy for the parent corporation.” A.W. Fiur Co. v. Ataka & Co. , 71 A.D.2d 370 (1st Dept. 1979). Moreover, a parent corporation may be liable on a contract signed by its subsidiary if the subsidiary is shown to be a mere shell dominated and controlled by the parent for the parent’s own purposes. In In re Sbarro Holding, Inc. , 91 A.D.2d 613 (2d Dept. 1982), a holding company sought to stay an arbitration proceeding against it and other related corporations on the ground that the agreement that called for arbitration was between a franchisee and its subsidiary. The court held that all the related corporations could be compelled to participate in the arbitration proceeding, although they were not signatories of the contract. The court explained that: The corporate veil will be pierced (1) to achieve equity, even absent fraud, where the officers and employees of a parent corporation exercise control over the daily operations of a subsidiary corporation and act as the true prime movers behind the subsidiary’s actions, and/or (2) where a parent corporation conducts business through a subsidiary which exists solely to serve the parent. Sbarro , 91 A.D.2d at 614 (citations omitted).  Additionally, where a shareholder uses a corporation for the transaction of the shareholder’s personal business, as distinct from the corporate business, the courts have held the shareholder liable for acts of the corporation. See Rapid Tr. Subway Constr. Co. v. City of N.Y. , 259 N.Y. 472 (1932). The determinative factor is whether “the corporation is a ‘dummy’ for its individual stockholders who are in reality carrying on the business in their personal capacities for purely personal rather than corporate ends.” Walkovszky v. Carlton , 18 N.Y.2d 414, 418 (1966). Apart from the foregoing rules, a parent corporation can be held liable for the actions of its subsidiary under veil piercing or alter ego liability principles.  The alter ego doctrine has been applied to pierce the veil between corporations when subsidiary corporations are used by a dominating parent corporation to engage in fraudulent or wrongful conduct. Under New York law, a corporation is considered to be a “mere alter ego when it ‘has been so dominated by . . . another corporation . . . and its separate identity so disregarded, that it primarily transacted the dominator’s business rather than its own.’” Trabucco v. Intesa Sanpaolo, S.p.A , 695 F. Supp. 2d 98, 107 (S.D.N.Y. 2010). When that occurs, “the dominating corporation will be held liable for the actions of its subsidiary ….” Id. Courts consider a wide array of factors in assessing the degree of domination and control exercised by the parent company. Such factors include: overlap in ownership, officers, directors, and personnel; common office space, address and telephone numbers of the corporate entities; whether the related corporations deal with the dominated corporation at arm’s length; and whether the corporation in question had property that was used by other of the corporations as if it were its own. Shisgal v. Brown , 21 A.D.3d 845, 848 (1st Dept. 2005) (internal citation omitted). Because the decision whether to pierce the corporate veil depends “on the attendant facts and equities” ( Matter of Morris v. N.Y. State Dep’t of Taxation & Fin. , 82 N.Y.2d 135, 141 (1993)), and because said facts can apply to an “infinite variety of situations” ( Wm. Wrigley Jr. Co. v. Waters , 890 F.2d 594, 601 (2d Cir. 1989)), no one factor controls the consideration. N.Y. Dist. Council of Carpenters Pension Fund v. Perimeter Interiors, Inc. , 657 F. Supp. 2d 410, 421 (S.D.N.Y. 2009). Courts recognize, however, “that with respect to small, privately-held corporations, ‘the trappings of sophisticated corporate life are rarely present,’” and, therefore, they “must avoid an over-rigid ‘preoccupation with questions of structure, financial and accounting sophistication or dividend policy or history.’” Bridgestone/Firestone, Inc. v. Recovery Credit Servs., Inc. , 98 F.3d 13, 18 (2d Cir. 1996) (quoting Wrigley , 890 F.2d at 601). In applying these and other factors, the cases “reveal[] common characteristics” that necessitated piercing the corporate veil. Wrigley , 890 F.2d at 601. “In each case, the evidence demonstrated an abuse of that form either through on-going fraudulent activities of a principal, or a pronounced and intimate commingling of identities of the corporation and its principal or principals, which prompted the reviewing courts, driven by equity, to disregard the corporate form.” Id. In World Wide Packaging, LLC v. Cargo Cosmetics, LLC , 2021 N.Y. Slip Op. 02088 (1st Dept. Apr. 1, 2021) ( here ), the Appellate Division, First Department had the opportunity to consider the foregoing principles in reversing the order of the motion court, which allowed World Wide Packaging, LLC (“World Wide Packaging”) to amend its complaint to assert a claim of alter ego liability against defendant TPR Holdings, LLC (“TPR”). World Wide Packaging involved claims against the affiliates of TPR (“Subsidiary Defendants”) for breaching their payment obligations with regard to certain cosmetic supply transactions conducted on credit accounts.  As alleged, TPR had been conducting business with World Wide Packaging since 2012. The Subsidiary Defendants were operating subsidiaries of TPR.  In 2016, TPR requested that Plaintiff establish “separate credit accounts” for each of its subsidiaries to transact their own individual business dealings with World Wide Packaging. Plaintiff agreed. From August 2016 through June 2018, World Wide Packaging had an established a course of dealing with each of the Subsidiary Defendants whereby Plaintiff had done business with the subsidiaries of TPR on their own separate credit accounts.  In 2018, Plaintiff commenced the action against the Subsidiary Defendants, asserting contract claims against each of them for nonpayment on certain transactions conducted on their individual credit accounts. World Wide Packaging later sought leave to amend its complaint to add TPR as a defendant under, inter alia , alter ego liability/veil piercing theories of liability. The motion court granted the motion. Defendants appealed. The First Department unanimously reversed, holding that there was no evidence that TPR was the real party in interest with regard to the separate transactions at issue in the litigation or dominated and controlled the Subsidiary Defendants beyond the incident of ownership. The Court explained that “the complaint silent” as to TPR’s involvement in the negotiation of the credit accounts Plaintiff created with the Subsidiary Defendants. Slip op. at *1. Indeed, said the Court, although “ t appear that TPR Holdings initially approached plaintiff about three separate credit accounts for its three subsidiaries. … there no allegation about who negotiated the pricing or the general terms of each transaction.” Id. And, noted the Court, “Plaintiff acknowledged that the purchase orders were issued separately by the subsidiary defendants.” In short, concluded the Court, “ hile it appears that TPR Holdings’ employees were frequently, but not always, involved in the creative aspect of the transactions by approving the order designs, there is no allegation that TPR Holdings directly participated or micro-managed each transaction underlying the purchase orders or acknowledged that it was the actual party in interest.” Id. The Court also held that Plaintiff’s claim for piercing the corporate veil was insufficient. The Court noted that “ ven if TPR Holdings exercised complete domination of the subsidiary defendants, plaintiff failed to allege that the abuse of the corporate form was for the purpose of defrauding plaintiff and causing it an injury.” Id. The Court explained that “plaintiff did not allege that the subsidiary defendants were not legitimate businesses or that they were created for an improper purpose of cutting off plaintiff’s ability to collect on the contract, or that corporate funds were purposefully diverted to make any of the three companies judgment proof.” Id. (citing Tap Holdings, LLC v. Orix Fin. Corp. , 109 A.D.3d 167, 174-177 (1st Dept. 2013); Fantazia Intl. Corp. v. CPL Furs N.Y., Inc. , 67 A.D.3d 511, 512 (1st Dept. 2009)). Merely alleging that “TPR Holdings caused the subsidiary defendants to breach a contract,” concluded the Court, was “insufficient to show the requisite wrongdoing.” Id. at *1-*2 (citing Skanska USA Bldg. Inc. v. Atlantic Yards B2 Owner, LLC , 146 A.D.3d 1, 12 (1st Dept. 2016), aff’d , 31 N.Y.3d 1002 (2018)). Takeaway Under New York law (and elsewhere), a parent corporation may be held liable for its subsidiaries’ acts when the “alleged wrong can seemingly be traced to the parent through the conduit of its own personnel and management,” and the parent has interfered with the subsidiaries’ operations in a way that surpasses the control exercised by a parent as an incident of ownership. See , e.g. , United States v. Bestfoods , 524 U.S. 51, 64 (1998) (quotation omitted). As noted by the Court in World Wide Packaging , there was no allegation or evidence that TPR interfered with the actions of its subsidiaries.  Moreover, there was no allegation or evidence in World Wide Packaging to support the imposition of veil piercing or alter ego liability. As the Court in World Wide Packaging recognized, allegations of domination and control without any allegation or evidence of fraud, inequity or other misconduct is insufficient to support a claim for alter-ego/veil-piercing liability against a parent corporation.

This Blog frequently addresses issues involving mortgage foreclosures in New York.  < HERE =">HERE"> , < HERE =">HERE"> < HERE =">HERE"> , < HERE =">HERE"> , < HERE =">HERE"> , < HERE =">HERE"> < HERE =">HERE"> , < HERE =">HERE"> , < HERE =">HERE"> , < HERE =">HERE"> , < HERE =">HERE"> , < HERE =">HERE"> , < HERE =">HERE"> , < HERE =">HERE"> , < HERE =">HERE"> , < HERE =">HERE"> , < HERE =">HERE"> , < HERE =">HERE"> , < HERE =">HERE"> ,.  More specifically, we have frequently focused on the pre-foreclosure notice requirements of RPAPL 1304 .  < HERE =">HERE"> , < HERE =">HERE"> , < HERE =">HERE"> , < HERE =">HERE"> , < HERE =">HERE"> .  As is evident from prior Blog articles, the lender’s sufficiency of proof of mailing required notices is an oft litigated issue.   On March 30, 2021, the New York Court of Appeals decided CIT Bank, N.A. v. Schiffman , in which it answered the following two questions certified to it by the Second Circuit Court of Appeals: (1) “Where a foreclosure plaintiff seeks to establish compliance with RPAPL § 1304 through proof of a standard office mailing procedure, and the defendant both denies receipt and seeks to rebut the presumption of receipt by showing that the mailing procedure was not followed, what showing must the defendant make to render inadequate the plaintiff’s proof of compliance with § 1304?” and, (2) “Where there are multiple borrowers on a single loan, does RPAPL § 1306 require that a lender’s filing include information about all borrowers, or does § 1306 require only that a lender’s filing include information about one borrower?” Briefly, RPAPL 1304 requires that at least ninety days prior to commencing legal action against a borrower with respect to a “home loan” (as defined in the relevant statutes), a lender must: send written notice to the borrower by certified and regular mail that the loan is in default; provide a list of approved housing agencies that offer free or low-cost counseling; and, advise that legal action may be commenced after ninety days if no action is taken to resolve the matter.  The CIT Bank Court noted that one purpose of RPAPL 1304 is to enable defaulted borrowers to “benefit from the information provided in the notice and the 90–day period during which the parties could attempt to work out the default without imminent threat of a foreclosure action, in an effort to further the ultimate goal of reducing the number of foreclosures”.  (Citation and internal quotation marks omitted.) As summarized by the CIT Bank Court, RPAPL 1306 : requires that a lender’s filing include information about all borrowers on a multi-borrower loan. RPAPL 1306 provides that as a “condition precedent” to commencing a foreclosure action, “ ach lender, assignee or mortgage loan servicer” file with the superintendent of financial services “within three business days of the mailing of the ... the information required by subdivision two” (RPAPL 1306<1> ). Subdivision two directs, in relevant part, that “ ach filing ... shall be on such form as the superintendent shall prescribe and shall include at a minimum, the name, address, last known telephone number of the borrower, and the amount claimed as due and owing on the mortgage....” (RPAPL 1306<2> ).   The primary purpose of RPAPL 1306 is to enable the Superintendent to monitor statewide foreclosure filings, to assist in the analysis of the types of loans subject to pre-foreclosure notices and to direct counseling services to borrowers at risk of foreclosure.  CPLR 1306(4). Facts of CIT Bank Defendants/borrowers, a husband and wife, borrowed $326,000 and secured the loan with a mortgage on jointly owned property.  The loan was consolidated and then assigned to CIT Bank.  After borrowers’ payment default, lender commenced an action in the United States District Court for the Eastern District of New York.  Borrowers’ answer asserted that lender failed to comply with RPAPL 1304 and 1306. Lender moved for summary judgment and argued that it met “its prima facie entitlement to a judgment of foreclosure and, as relevant here, that it had satisfied the requirements of RPAPL 1304 and 1306 in November 2015, almost a year before commencing suit, by mailing the notices and submitting the electronic filing within three days of that mailing.”  Compliance with CPLR 1304 was satisfied, Lender argued, by submitting “the affidavit of employee Rachel Hook in which she attested to her personal knowledge of ’s routine office practice relating to the generation, addressing, and mailing of 90–day notices, which she described in the affidavit opies of the notices and envelopes purportedly mailed to were attached to the motion papers.”  Additionally, “Hook’s affidavit stated that, as part of ’s routine practice, envelopes for the 90–day notices are ‘created upon default.’”   As to RPAPL 1306, lender submitted the required electronic filing statement, which listed only wife as the borrower “and stated that the filing was completed on the same day as the mailing of the 90–day notice”. Borrowers opposed the motion by denying receipt of the RPAPL 1304 notices, challenging that the Hook affidavit created “a presumption of receipt” of the required mailing and by asserting that the requirements of RPAPL 1306 were not satisfied because the required filing listed only wife and not husband as “borrower.” In deciding the motion, the District Court adopted the recommendation of the Magistrate Judge and granted summary judgment to lender, finding that the requirements of both RPAPL 1304 and 1306 were satisfied.   Borrowers appealed to the Second Circuit and argued that “it was evident from the fact that the notices were dated almost a year after default that the bank had deviated from its routine office practice of generating the envelopes for the 90–day notices “’upon default’” … that failed to comply with RPAPL 1306 because the requisite filing listed only one of their names.”  Seeking guidance from the Court of Appeals, the Second Circuit certified its two questions. The Decision of the Court of Appeals RPAPL 1304 The Court, recognizing that RPAPL 1304 does not set forth the proof necessary to demonstrate compliance with the statute’s notice requirements in foreclosure actions, explained how to establish that a notice has been sent in analogous circumstances: this Court has long recognized a party can establish that a notice or other document was sent through evidence of actual mailing ( e.g., an affidavit of mailing or service) ( see Engel v. Lichterman, 62 N.Y.2d 943, 944, 479 N.Y.S.2d 188, 468 N.E.2d 26 <1984> ) or—as relevant here—by proof of a sender’s routine business practice with respect to the creation, addressing, and mailing of documents of that nature. Evidence of “an established and regularly followed office procedure” ( Matter of Gonzalez (Ross), 47 N.Y.2d 922, 923, 419 N.Y.S.2d 488, 393 N.E.2d 482 <1979> ) may give rise to a rebuttable “presumption that such a notification was mailed to and received by ” ( Preferred Mut. Ins. Co. v. Donnelly, 22 N.Y.3d 1169, 1170, 985 N.Y.S.2d 470, 8 N.E.3d 847 <2014> ; see also Nassau Ins. Co. v. Murray, 46 N.Y.2d 828, 829, 414 N.Y.S.2d 117, 386 N.E.2d 1085 <1978> ). “In order for the presumption to arise, office practice must be geared so as to ensure the likelihood that notice ... is always properly addressed and mailed” ( Nassau Ins. Co., 46 N.Y.2d at 830, 414 N.Y.S.2d 117, 386 N.E.2d 1085). Such proof need not be supplied by the employee charged with mailing the document ( see Bossuk v. Steinberg, 58 N.Y.2d 916, 919, 460 N.Y.S.2d 509, 447 N.E.2d 56 <1983> ) but can be offered in the form of an affidavit of an employee with “personal knowledge of the practices utilized by the at the time of the alleged mailing” ( Preferred Mut. Ins. Co., 22 N.Y.3d at 1170, 985 N.Y.S.2d 470, 8 N.E.3d 847; see also Nassau Ins. Co., 46 N.Y.2d 828, 414 N.Y.S.2d 117, 386 N.E.2d 1085). For example, in Preferred Mut. Ins. Co., we deemed an affidavit describing the procedures used by an insurance company “to ensure the accuracy of addresses, as well as office procedure relating to the delivery of mail to the post office” sufficient to support the presumption, where the affidavit explained, among other things, how the notices and envelopes were generated, posted and sealed, as well as how the mail was transmitted to the postal service (22 N.Y.3d at 1170, 985 N.Y.S.2d 470, 8 N.E.3d 847, affg 111 A.D.3d 1242, 1244, 974 N.Y.S.2d 682 <4th dept. 2013> ). Having described how to establish the rebuttable presumption of mailing through “standard office mailing procedures,” the Court then addressed the requirements for rebutting that presumption.  The borrower argued that denial of receipt and a showing that “any aspect of the routine office procedure was not followed” is sufficient.  Lender did “not disagree that a denial of receipt and a showing of noncompliance can raise a fact issue but contends that this is true only if the deviation from procedure is material and related to the mailing process in a manner that would affect whether the document was mailed to the appropriate party.”  The Court agreed with lender and stated the general principal that: t is well-settled that “ enial of receipt ... standing alone, is insufficient .... In addition to a claim of no receipt, there must be a showing that routine office practice was not followed or was so careless that it would be unreasonable to assume that the notice was mailed” ( Nassau Ins. Co., 46 N.Y.2d at 829–830, 414 N.Y.S.2d 117, 386 N.E.2d 1085). In addressing the more specific question asked by the Second Circuit, the Court stated: we clarify that to rebut the presumption, there must be proof of a material deviation from an aspect of the office procedure that would call into doubt whether the notice was properly mailed, impacting the likelihood of delivery to the intended recipient. Put another way, the crux of the inquiry is whether the evidence of a defect casts doubt on the reliability of a key aspect of the process such that the inference that the notice was properly prepared and mailed is significantly undermined. Minor deviations of little consequence are insufficient. The Court also noted that “ hat is necessary to rebut the presumption that a RPAPL 1304 notice was mailed will depend, in part, on the nature of the practices detailed in the affidavit.”  “ ontextual considerations” may also become relevant.  In CIT Bank , for example, lender argued that “residential notes and mortgages are negotiable instruments that often change hands at various points during their duration, which may impact the timing of the creation and mailing of RPAPL 1304 notices—a contextual factor a court could consider in assessing whether a purported deviation from routine procedure was material.”  Here, there was a significant gap in time between the date of the notice and the default, despite the averment that the “routine office practice of generating the envelopes for the 90-day notices ‘upon default.’”  The Court also noted that the standard proposed by borrower – i.e., any deviation from established office procedure would be sufficient to rebut the presumption of mailing – would: undermine the purpose of the presumption because, in practice, it would require entities to retain actual proof of mailing for every document that could be potentially relevant in a future lawsuit. As we recognized almost a century ago, such an approach would be financially and logistically impractical given the reality that commercial entities create and process significant volumes of mail and may experience frequent employee turnover—circumstances that apply not only to banks, but many other businesses and government agencies. RPAPL 1306 Simply stated, borrower argued that lender’s RPAPL 1306 filing was insufficient because all borrowers are required to be listed thereon and lender only included wife.  The Court rejected borrower’s argument.  First, as a matter of statutory interpretation only one borrower is required because RPAPL 1306 references the “borrower” singularly.  This is in contrast to, for example, the related RPAPL 1304 which references “the ‘borrower, or borrowers.’”   The Court further noted that because the primary purpose of the statute, which has been previously described, would be furthered if just one borrower is listed on a lender’s filing, listing a single borrower is sufficient.

In 2010, Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”) to combat illegal and fraudulent conduct on Wall Street and promote compliance with the federal securities and commodities laws.  The Dodd-Frank Act contains whistleblower provisions that authorize the Securities and Exchange Commission (“SEC” or the “Commission”) to pay substantial cash rewards to whistleblowers who voluntarily provide the SEC with information about securities fraud and other violations of the securities laws, including the Foreign Corrupt Practices Act.  The Dodd-Frank Act enables the SEC to pay an award to any individual, or group of individuals, who provide “original information” about a violation of the federal securities laws. To be “original”, the information must be unknown to the SEC and derived from the whistleblower’s independent knowledge or analysis.  Information will be considered “original” even if the whistleblower first reports the violations internally or to another agency, so long as the whistleblower reports the same information to the SEC within 120 days of the initial tip. Under this “safe harbor” ( see Rule 21F-4(b)(7) of the Securities Exchange Act of 1934 ( here )), the SEC will treat the information as though it had been submitted to the SEC at the same time that it was submitted to the other agency ( i.e. , it will treat the information as “original information”).  The SEC first applied the safe harbor to a whistleblower tip in April 2018. As announced ( here ), the SEC awarded more than $2.2 million to a former company insider who first reported information about a violation of the securities laws to another federal agency and within 120 days thereafter provided the same information to the SEC. As explained in that press release, the whistleblower voluntarily reported information to a federal agency covered by the rule, which then referred the matter to the SEC. As a result, the SEC opened an investigation. Within 120 days of the initial report, the whistleblower provided the same information to the SEC and later provided substantial cooperation in the investigation. Although the whistleblower’s tip came after the SEC had opened its investigation, the Commission treated the submission as though it had been made when the whistleblower provided the information to the other agency. Recently, the SEC made an award to a whistleblower who availed himself/herself of the safe harbor provision. On March 29, 2021, the SEC announced ( here ) that it awarded more than $500,000 to a whistleblower who raised concerns internally before submitting a tip to the Commission. The whistleblower’s information and assistance allowed the SEC and another agency to quickly file actions that shut down an ongoing fraudulent scheme. The whistleblower’s information prompted an internal investigation by the company, which subsequently reported the conduct to an outside agency, which in turn provided the information to the SEC. Separately, the whistleblower reported the alleged misconduct to the SEC within 120 days of reporting the violations internally to the company. Under the “safe harbor” provision of the SEC’s whistleblower rules, the SEC treated the whistleblower’s information as though it had been submitted to the SEC at the same time it was internally reported because the whistleblower reported the violations to the SEC within 120 days of the internal report. Takeaway Congress created the whistleblower program to incentivize individuals possessing original, timely, and credible information about violations of the federal securities laws to report such misconduct to the SEC. The Commission will treat information reported to a covered authority ( e.g. , a federal agency, a state Attorney General or securities regulatory authority, any self-regulatory organization, the Public Company Accounting Oversight Board, or to an entity’s internal whistleblower, legal, or compliance procedures for reporting allegations of possible violations of law) as “original information” if the whistleblower submits the same information to the Commission within 120 days of the initial report. The safe harbor, therefore, provides the whistleblower with an additional opportunity to be rewarded for reporting a violation of the securities laws when they are uncertain as to where they should report the violation.

Although New York law does not provide for a single statute of limitations for breach of fiduciary duty or unjust enrichment claims, courts typically determine the applicable limitations period — three years under CPLR § 214 (4) or six years under CPLR § 213(1) — by analyzing the substantive remedy that the plaintiff seeks. IDT Corp. v. Morgan Stanley Dean Witter & Co. , 12 N.Y.3d 132, 139 (2009). Thus, for example, “ here the remedy sought is purely monetary in nature, courts construe the suit as alleging ‘injury to property’ within the meaning of CPLR § 214.” IDT , 12 N.Y.3d at 139; see also Ingrami v. Rovner , 45 A.D.3d 806, 808 (2d Dept. 2007) (applying three-year statute of limitations to unjust enrichment claim because plaintiff sought monetary, as opposed to equitable, relief).  A claim for breach of fiduciary duty accrues as soon as “the claim becomes enforceable — when all elements of the tort can be truthfully alleged in a complaint.” IDT , 12 N.Y.3d at 140. “Given that damage stemming from the misconduct is an essential element of a breach of fiduciary duty claim, the claim is not enforceable, and thus does not accrue until damages are sustained.” Grika v. McGraw , 55 Misc. 3d 1207(a) (Sup. Ct., N.Y. County 2016), aff’d sub nom. , L.A. Grika on behalf of McGraw , 161 A.D.3d 450 (1st Dept. 2018]) see also IDT , 12 N.Y.3d at 140 (“date of damages is measured from when the plaintiff first suffered loss”). 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.” Ganzi v. Ganzi , 183 A.D. 3d 433 (1st Dept. May 7, 2020) (holding that, under continuous wrong doctrine, new contracts executed during limitations period gave rise to timely fiduciary duty claims based on same terms as an earlier contract executed prior to limitations period); see also Henry v. Bank of Am. , 147 A.D.3d 599, 600 (1st Dept. 2017).  When a defendant seeks dismissal under CPLR § 3211(a)(5) on statute of limitations grounds, he or she bears “the initial burden of establishing, prima facie , that the time in which to sue has expired.” Benn v. Benn , 82 A.D.3d 548, 548 (1st Dept. 2011) (internal quotation marks and citation omitted). “To meet its burden, the defendant must establish, inter alia , when the plaintiff’s cause of action accrued.” Lebedev v. Blavatnik , 144 A.D.3d 24, 28 (1st Dept. 2016) (internal quotation marks and citation omitted). If the defendant meets that burden, “then the burden shifts to the plaintiff to aver evidentiary facts establishing that the cause of action was timely or to raise a question of fact as to whether the cause of action was timely.” Lake v. New York Hosp. Med. Ctr. of Queens , 119 A.D.3d 843, 844 (2d Dept. 2014) (internal quotation marks and citation omitted). In today’s article, we examine VA Mgt., LP v. Estate of Valvani , 2021 N.Y. Slip Op. 01878 (1st Dept. Mar. 25, 2021) ( here ), a case in which the court addressed the foregoing statutes and principles. VA Management, LP v. Estate of Valvani Background VA Management involved, inter alia , an alleged breach of fiduciary duty in connection with the management of a portfolio of pharmaceutical company securities. According to the Complaint, plaintiff VA Management, LP (“VA”) hired Sanjay Valvani (“Valvani”) in 2007 to manage its portfolio of pharmaceutical company securities. Between 2007 and 2011, Valvani allegedly obtained confidential information from the Food and Drug Administration about the status of drug applications and used that information to buy and sell pharmaceutical company shares for a substantial gain. VA claimed to be unaware of Valvani’s alleged insider trading. Valvani allegedly received over $100 million in compensation during his time with VA.  In June 2016, Valvani was arrested on federal criminal insider trading charges. The Securities and Exchange Commission (“SEC”) simultaneously brought a civil enforcement action against him. Following Valvani’s death, the U.S. Attorney’s Office and SEC dropped their actions against him. VA settled related claims with the SEC in May 2018. On June 14, 2019, VA and Valvani’s estate (“Defendant”) executed a tolling agreement that tolled the statute of limitations for any claims between the parties until July 31, 2019. The agreement was amended on July 30, 2019, tolling all time limitations for any claims between the parties until August 7, 2019. On August 7, 2019, VA filed suit against Defendant, asserting claims for breach of fiduciary duty and unjust enrichment. Defendant moved to dismiss, arguing that VA’s claims were untimely and should be dismissed under the doctrine of in part delicto because, according to Defendant, Valvani’s misconduct was attributable to VA. Defendant also argued that VA’s unjust enrichment claim was duplicative. The motion court granted Defendant’s motion to dismiss ( here ). First, the motion court held that the three-year statute of limitations applied to VA’s breach of fiduciary duty and unjust enrichment claims because “the remedies sought by VA, including disgorgement of all compensation paid to Valvani from when his breach of fiduciary duty began, purely monetary.” The motion court explained that the “use of the term ‘disgorgement’ instead of other equally applicable terms such as repayment, recoupment, refund, or reimbursement,” was of no moment and “should not be permitted to distort the nature of the claim so as to expand the applicable limitations period from three years to six.” Quoting Access Point Med., LLC v. Mandell , 106 A.D.3d 40, 44 (1st Dept. 2013). See also IDT , 12 N.Y.3d at 139-40. “As a practical matter,” concluded the motion, ‘disgorgement’ of Valvani’s compensation is a claim for monetary damages, not a request for equitable relief. Therefore, the three-year limitations period in CPLR § 214 (4) applies to VA’s breach of fiduciary duty and unjust enrichment claims.” Second, the motion court held that under the tolling agreement, the three-year limitations period had run and therefore VA’s claims were time-barred. The motion court explained that although Valvani’s “‘period of disloyalty’ lasted until 2016, the conduct on which its claim based — Valvani’s insider trading — took place in 2011.” This was so, said the motion court, even though Valvani continued to receive compensation through 2016. “The fact that VA may have suffered further damages from Valvani’s insider trading in later years, in the form of continued compensation and costs of governmental and internal investigations, the ‘continuing effects of earlier conduct alleged to have been wrongful.’” Quoting Carey v. Trustees of Columbia Univ. , 113 N.Y.S. 3d 32, 34 (1st Dept. 2019); see also B. Brages Assoc. v. West 21st LLC , 2014 WL 2116093, at *6 (Sup. Ct., N.Y. County 2014) (“ he statute of limitations begins to run at the first sign of damage, even when the damage gets progressively worse”). These damages, concluded the motion court, did not “constitute a separate wrongful act extending the accrual date for VA’s claim.” Citing Murphy v. Morlitz , 751 F. App’x 28, 30 (2d Cir. 2018); New York Yacht Club v. Lehodey , 171 A.D.3d 487, 487 (1st Dept. 2019).  The motion court also reasoned that “the payment of salary in future years a continuing effect of earlier unlawful conduct, not an independent breach.” First Department’s Decision On appeal, the First Department affirmed. The Court held that VA’s claims were for monetary relief, not equitable relief. Slip Op. at *1. Like the motion court, the First Department rejected the notion that seeking “disgorgement” was something other than the repayment of monies improperly taken. Id. As such, seeking the “disgorgement” of Valvani’s compensation did not convert VA’s claim to one for equitable relief “to which the six-year statute of limitations would apply.” Id. (citations omitted). The Court also held that the motion court “correctly concluded that the breach of fiduciary claim accrued in 2011 at the latest, when Valvani completed the insider trading scheme, which resulted in large profits to the portfolio and thus, to plaintiff, and which in turn increased Valvani’s performance-based compensation.” Id. The Court found that the “three-year statute of limitations had run by June 2019, when the parties executed a tolling agreement.” Thus, concluded the Court, the motion court “properly dismissed plaintiff’s breach of fiduciary duty claim,” which it filed on August 7, 2019. Id. The Court further held that the motion court “correctly deemed the fiduciary tolling doctrine,” to be “inapplicable because does not apply to claims that are solely at law like this one.” Id. (citing Stern v. Barney , 129 A.D.3d 619 (1st Dept. 2015); see also IDT , 12 N.Y.3d at 139; Cusimano v. Schnurr , 137 A.D.3d 527, 530 (1st Dept. 2016). Finally, the Court held that VA’s breach of fiduciary duty claim did not “sound in fraud to warrant application of the six-year statute of limitations (CPLR 213<8> ).” Id. “In particular,” said the Court, “the complaint fail to allege that justifiably relied on any misrepresentation from Valvani, including his certifications of compliance with plaintiff’s policies prohibiting insider trading.” Id. (citing IDT , 12 N.Y.3d at 140). Takeaway VA Management shows that courts will not elevate form over substance when considering whether a breach of fiduciary duty claim is subject to the three-year statute of limitations or the six-year statute of limitations. The decision also highlights how the continuing wrong doctrine applies. As noted, it does not apply to a single wrong that has continuing effects; it applies only to a series of independent, distinct wrongs.

When parties enter into contracts, they generally do so with the expectation of receiving the benefits of their respective bargains.  Hopefully, these expectations are realized when all parties perform.  A party’s failure to perform under a contract frequently results in a claim for breach of contract.  “Generally, once a party to a contract has made a promise, that party must perform or respond in damages for its failure, even where unforeseen circumstances make performance burdensome; until the late nineteenth century even impossibility of performance ordinarily did not provide a defense.”  Kel Kim Corp. v. Central Markets , 70 N.Y.2d 900, 902 (1987) (citation omitted).  This BLOG has analyzed numerous issues related to contract breaches – such as remedies for contractual breaches and defenses to breach of contract actions. One defense to a breach of contract is “impossibility of performance,” which defense has been recognized for quite some time, and “ha been applied narrowly, due in part to judicial recognition that the purpose of contract law is to allocate the risks that might affect performance and that performance should be excused only in extreme circumstances.”  Kel Kim , 70 N.Y.2d at 902.)  Indeed, the defense of “impossibility of performance” is “limited to destruction of the means of performance by an act of God, Vis major, or by law.”  407 East 61 st Garage, Inc. v. Savoy Fifth Ave. Corp. , 23 N.Y.2d 275, 281 (1968) (citations omitted).  Conversely, the defense is not available “where impossibility or difficulty of performance is occasioned only by financial difficulty or economic hardship, even to the extent of insolvency or bankruptcy….”  407 East , 23 N.Y.2d at 281 (citations omitted).  Indeed, the Court in Urban Archaeology Ltd. v. 207 East 57 th Street LLC , 34 Misc. 3d 1222(A) (2009), affirmed , 68 A.D.3d 562 (2009), surveyed cases addressing a breaching parties’ misplaced reliance on economic considerations to support an impossibility defense, and stated: Thus, parties to a contract have not been permitted to avoid contractual obligations on the ground of impossibility where a commodity swap agreement was rendered extremely disadvantageous due to an increase in the price of cobalt ( General Elec. Co. v. Metals Resources Group Ltd. , 293 A.D.2d 417, 741 N.Y.S.2d 218 <1st dept 2002> ); financial condition of a contracting party changed due to the fraud of Bernie Madoff ( Sassower v. Blumenfeld , 24 Misc.3d 843, 878 N.Y.S.2d 602, 2009 N.Y. Slip Op. 29198 ); contracting party unable to secure financing in a form required ( Stasyszyn v. Sutton East Assocs. , <161 a.d.2d 275 (1 st dep’t 1990> st dep’t 1990>); party unable to secure the level of insurance required due to a liability insurance ( Kel Kim Corp. v. Central Markets, Inc., supra ), and a party was unable to generate sufficient cash flow due to the catastrophic economic collapse of the Asian market ( Bank of New York v. Tri Polyta Finance B.V. , 2003 WL 1960587 ). Urban Archaeology at *4 (hyperlinks added).  In Urban Archaeology, the court rejected plaintiff tenant’s attempt to avoid its obligations under a commercial lease because “the economic downturn unable to perform according to the terms of the Lease….”  Urban Archaeology at *1. On March 15, 2021, the Supreme Court of the State of New York, Kings County, decided 267 Development, LLC v. Brooklyn Babies and Toddlers, LLC , a lawsuit involving the alleged breach of a commercial lease in which the tenant raised, inter alia , the defense of the “doctrine of impossibility” in light of COVID-19 restrictions.  The plaintiff in 267 Development was a commercial landlord that rented space to defendant tenant.  The defendant’s lease obligations to landlord were guaranteed by defendant O’Neil.  Tenant was forced to close its store due to “Executive Orders § 202.3 , § 202.6 and § 202.7 closing certain businesses throughout New York State in response to the Covid-19 pandemic.”  (Hyperlinks added.)  The Court further noted that “Governor Cuomo initiated a moratorium on residential and commercial evictions and foreclosures in 2020 that has been extended through May 21, 2021.” Landlord commenced action against tenant and guarantor seeking almost $100,000.00 in rent arrears and attorney’s fees.  Landlord moved for summary judgment and tenant opposed the motion “rely in part upon New York City Administrative Code § 22-1005 ("§ 22-1005"), also referred to as Local Law 55<, p> ursuant to , commercial Landlords cannot seek monies for lease arrears from a non-tenant who personally guarantees a lease agreement on behalf of a business that meets the criteria as set forth in the provision.”  The Court noted that § 22-1005 “refers to businesses that were forced to close as a result of the Executive Orders signed by Governor Cuomo”, but only refers to “the guarantors of commercial leases and not the tenant itself.” Among other arguments, tenant asserted that landlord’s motion should be denied for “impossibility of performance,” which is a common law doctrine recognized under New York law “to excuse performance when there have been extraordinary intervening events.”  The Court denied landlord’s motion and held that “the shutdown of 's business has precluded it from performing its contractual obligations. The government shutdown was unforeseeable and could not have been built into the contract. Under the circumstances presented, this Court finds that performance under the subject lease was made impossible.”  In so doing, the Court relied on, inter alia , Kel Kim, supra .  The Court also drew an analogy to a case in which “impossibility” was successfully asserted as a result of the September 11 th attacks, and stated: The doctrine of impossibility was applied after the September 11 terrorist attacks in Bush v . Protravel International , Inc . , 192M . 2d 743 , 747-748 (Civ . Ct ., Richmond County 2002) . Telephone communications had been disrupted throughout New York City after 9/11. As a result, the Plaintiff in the aforementioned case was precluded from timely canceling travel reservations. The Civil Court found that performance of the travel contract was rendered impossible for a period of time immediately following the 9/11 attack where New York City was in virtual lockdown. Id . at 747 .  (Hyperlink added.) Finding that “Plaintiff's inclusion of causes of action in their complaint against Ms. O'Neil constitutes commercial tenant harassment under the law”, the Court also granted defendants’ cross-motion for summary judgment against landlord for “attempting to enforce a personal guarantee that or reasonably should know not enforceable pursuant to § 22-1005” under New York City Administrative Code § 22-902(a) (11) and (14).  Thus, the claims asserted against the guarantor were stricken and the guarantor was awarded judgment for commercial tenant harassment.

March 2021 has been a busy month for the Enforcement Division of the Securities and Exchange Commission (“SEC” or “Commission”). Since our last Enforcement News article ( here ), the SEC has announced six enforcements proceedings and/or settlements involving some type of securities fraud.  The type of conduct addressed by the SEC in these proceedings and/or settlements is varied and limited only by the imagination of those who perpetrated the fraud. Thus, for example, fraudsters used social media, the Dark Web, Ponzi-like techniques, and the closeness of a religious community (also known as affinity fraud) to deceive investors out tens of millions of dollars. As discussed below, the theme common to these scams is deception and personal gain at the expense of unsuspecting investors.  We briefly examine these proceedings below.  SEC v. Heckler On March 9, 2021, the SEC announced ( here ) that it charged George Heckler (“Heckler”) for operating a decade-long investment adviser fraud through two private hedge funds, Cassatt Short Term Trading Fund LP (“Cassatt”) and CV Special Opportunity Fund LP (“CV Special”), which Heckler formed to conceal massive losses incurred by Conestoga Holdings LP (“Conestoga”), another fund controlled by Heckler. According to the SEC’s complaint ( here ), Heckler, after forming Cassatt and CV Special, transferred Conestoga’s poorly performing assets to those funds and then misrepresented the funds’ objectives and performance to Cassatt and CV Special investors. The SEC alleged that, between 2009 and 2019, Heckler falsely told investors that their funds were being used to engage in very short-term equity trading and that the investments were consistently generating positive returns. In truth, claimed the SEC, a substantial amount of investors’ funds had not been invested at all or had been used to make Ponzi-like payments to prior investors. According to the SEC, Heckler raised at least $90 million in new investor capital through Cassatt, CV Special, and three other entities he controlled, of which over $32 million was used to repay or redeem prior investors. In addition, the SEC alleged that Heckler took over $1 million for his personal use, and Cassatt and CV Special suffered significant losses as a result of poor investments by Heckler. Heckler also allegedly concealed these losses from investors by providing them with false account statements showing fictitious gains. The SEC charged Heckler with violations of the antifraud provisions of the federal securities laws. Heckler agreed to settle the SEC’s charges by consenting to a bifurcated judgment that permanently enjoins him from future violations of the charged provisions and bars him from the securities industry, with disgorgement and penalties to be resolved at a future date. On March 9, 2021, Heckler pleaded guilty for related criminal conduct in federal court in the District of New Jersey ( here ). SEC v. Fassari On March 15, 2021, the SEC announced ( here ) fraud charges and an asset freeze and other emergency relief against Andrew L. Fassari (“Fassari”), a California-based trader who used social media to spread false information about a defunct company, while secretly profiting by selling his own holdings of the company’s stock. According to the complaint ( here ), Fassari, using his Twitter handle @OCMillionaire, tweeted false statements about Arcis Resources Corporation (“ARCS”), a defunct Nevada company with publicly traded securities, during December 2020. The SEC alleged that, on December 9, 2020, Fassari began purchasing over 41 million shares of ARCS stock shortly before tweeting false information about ARCS to his thousands of Twitter followers, including falsely claiming that ARCS was reviving its operations, expanding its business, and being backed by “huge” investors. The SEC further alleged that, between December 9 and 21, 2020, Fassari made approximately 120 tweets that referenced “$ARCS,” dozens of which were false and misleading.  In seeking an injunction, the SEC alleged that Fassari continued to tweet about other stocks as recently as January and February 2021. The SEC further alleged that, over the next several days, ARCS’s share price skyrocketed, ultimately increasing over 4,000%. The SEC also claimed that Fassari made false statements about his own trading in ARCS. Between December 10 and 16, 2020, Fassari allegedly sold all his shares in ARCS for profits of over $929,000, while continuing to publish false and misleading information about ARCS and his trading in ARCS. here,=">here," for="for" example.="example."> The SEC charged Fassari with violating the antifraud provisions of the federal securities laws, and seeks a permanent injunction, disgorgement, prejudgment interest, and a civil penalty from Fassari. In addition, on March 2, 2021, the SEC issued an order ( here ) temporarily suspending trading in the securities of ARCS. here).=">here)." As="As" we="we" noted="noted" in="in" that="that" article,="article," “truth,="“truth," candor="candor" accuracy="accuracy" corporate="corporate" communications="communications" are="are" necessary="necessary" regardless="regardless" medium="medium" which="which" they="they" made.="made." Thus,="Thus," officers="officers" directors="directors" who="who" use="use" social="social" media,="media," without="without" oversight,="oversight," review,="review," scrutiny="scrutiny" attendant="attendant" issued="issued" through="through" more="more" traditional="traditional" means,="means," risk="risk" from="from" if="if" their="their" alleged="alleged" be="be" materially="materially" false="false" misleading.”="misleading.”"> SEC v. Levine On March 18, 2021, the SEC announced ( here ) that it charged Seth P. Levine (“Levine”), a New Jersey resident, with defrauding investors in connection with their investments in real estate. Most of the investors were members of the Orthodox Jewish community. here=">here" and="and" >here.=">here."> In its complaint ( here ), the SEC alleged that Levine sold membership interests in limited liability companies that purchased and owned apartment complexes.  According to the SEC, from at least February 2015 through August 2019, Levine raised millions of dollars from more than 60 investors, including family, friends, and other investors, many of whom belonged to the Orthodox Jewish community.  In offering the interests, Levine allegedly used false and misleading statements that masked the underlying financial problems of Norse Holdings, LLC (“Norse Holdings”), a real estate investment and management company that Levine owned and operated, and its inability to pay promised returns without using new investor monies or proceeds from a related mortgage fraud. The SEC alleged that Levine provided investors with documents reflecting false and inaccurate information concerning the profitability of the apartment complexes; sold overlapping ownership interests to investors using false operating agreements and, at times, forged signatures; frequently commingled investor funds to prop up real estate holdings that were struggling; and paid investors with fake profits generated by the mortgage fraud Levine conducted using the same properties.       The SEC charged Levine with violating the antifraud provisions of the federal securities laws.  Levine agreed to settle the charges against him.  The settlement, which is subject to court approval, will permanently enjoin Levine from violating the charged provisions of the federal securities laws and provides for the disgorgement of ill-gotten gains and the payment of prejudgment interest and civil penalties at a later date, as decided by the court.  In a parallel action, the U.S. Attorney’s Office for the District of New Jersey announced ( here ) criminal charges against Levine in connection with certain of the conduct underlying the SEC’s action. SEC v. Richman et ano. On March 18, 2021, the SEC announced that it charged Jessica Richman (“Richman”) and Zachary Apte (“Apte”), co-founders of uBiome Inc. (“uBiome”), a San Francisco-based private medical testing company, with defrauding investors out of $60 million by falsely portraying uBiome as a successful start-up with a proven business model and strong prospects for future growth. In its complaint ( here ), the SEC claimed that Richman, uBiome’s CEO, and Apte, its Chief Scientific Officer, raised funds from investors – millions of dollars of which went to Richman and Apte – by falsely portraying uBiome as a rapidly growing company, which Richman told investors was “inventing the microbiome industry” and making “products that improve people’s lives.” According to the SEC, Richman and Apte lulled investors into believing that the company had a strong track record of receiving health insurance reimbursement for its clinical tests, which purportedly could detect microorganisms and assist in diagnosing disease. The SEC maintained that these claims were false and misleading because uBiome’s purported success in generating revenue depended on the individual defendants’ ability to convince doctors into ordering unnecessary tests and engaging in other improper practices that Richman and Apte directed, which, if discovered, would have led to insurers refusing to reimburse uBiome. According to the SEC, Richman and Apte concealed the improper practices from investors and insurers, including directing uBiome employees to provide insurers with backdated and misleading medical records to substantiate the company’s prior claims for reimbursement. Ultimately, Richman and Apte’s efforts to conceal the practices unraveled, said the SEC, which led to uBiome suspending its medical test business and declaring bankruptcy. According to the SEC, Richman and Apte were each enriched by millions of dollars through selling their own uBiome shares during the fraudulent fundraising round. The SEC charged Richman and Apte with violating the antifraud provisions of the federal securities laws. The SEC is seeking court orders, including officer and director bars, to prevent Richman and Apte from engaging in future fraud, as well as orders requiring them to disgorge their ill-gotten gains from the violations and pay civil penalties. In a parallel action, the U.S. Attorney’s Office for the Northern District of California announced ( here ) criminal charges against Richman and Apte. SEC v. Chatfield PCS LTD. et al. On March 18, 2021, the SEC announced ( here ) that it filed charges and obtained an asset freeze and other emergency relief to stop an alleged fraudulent offering and the misappropriation of investor assets by Tra Jay Scarlett (“Scarlett”), a Colorado Springs resident, using two entities under Scarlett’s control, Chatfield PCS Ltd. (“Chatfield”) and GO ECO Manufacturing, Inc. (“GO ECO”). In its complaint ( here ), the SEC alleged that since approximately March 2016, Scarlett, through Chatfield, raised at least $3.2 million from investors in two securities offerings by GO ECO, which was represented to be an environmentally-friendly drink bottling and manufacturing company. The SEC alleged that Scarlett and Chatfield told investors that GO ECO made or bottled “the number one protein shot beverage in the world,” that investments in GO ECO would be used to expand the company’s existing business, and that the investments were expected to generate annual returns of 20% to 25%. According to the SEC, GO ECO never manufactured or bottled any beverages, never opened a bank account, and never operated in any way at all. Instead, said the SEC, Scarlett misappropriated hundreds of thousands of dollars of investor funds to buy, among other things, jewelry and precious metals, and to make a down payment and mortgage payments on his home. The SEC also alleged that defendants made other false and misleading statements to GO ECO investors about GO ECO’s business operations, management team, and relationship with its supposed key customer. The SEC charged defendants with violating the antifraud provisions of the federal securities laws, and seeks a permanent injunction, disgorgement, prejudgment interest, and a civil penalty from each of them. SEC v. Jones On March 18, 2021, the SEC announced ( here ) that it charged James Roland Jones (“Jones”), a/k/a “MillionaireMike”, of Redondo Beach, California, with perpetrating a fraudulent scheme to sell “insider tips” on the dark web.    This is the SEC’s first enforcement proceeding involving alleged securities violations on the dark web.  In its complaint ( here ), the SEC alleged that, in late 2016 and 2017, Jones accessed various dark web marketplaces, including a website claiming to be an insider trading forum, in search of material, nonpublic information to use for his own securities trading.  According to the SEC, in order to gain access to the insider trading forum, Jones lied about possessing material, nonpublic information. By doing so, Jones allegedly gained access to the insider trading forum for a short period, but was unsuccessful in obtaining valuable material, nonpublic information.   Thereafter, alleged the SEC, Jones devised a scheme to sell purported insider tips to others on the dark web. The SEC alleged that, in the spring of 2017, Jones offered and sold on one of the dark web marketplaces purported “insider tips” that he falsely described as material, nonpublic information from the insider trading forum or corporate insiders. According to the SEC, several users purchased the tips and ultimately traded based on the information Jones provided.  The SEC charged Jones with violating the antifraud provisions of the federal securities laws.  Simultaneous with the filing, Jones agreed to a bifurcated settlement that, subject to court approval, permanently enjoins him from further violating these provisions, and reserves the determination of disgorgement and civil penalties for a later date. In a parallel action, the U.S. Attorney’s Office for the Middle District of Florida filed criminal charges against Jones ( here ).

Fraud in the sale of securities. Such an allegation is often governed by an arbitration clause, requiring the parties to resolve their dispute before a FINRA tribunal. Not all investment claims, however, require resolution in arbitration. Sometimes the dispute can be adjudicated in a court of law. Such was the case in Pottorff v. Centra Fin. Group, Inc. , 2021 N.Y. Slip Op. 01645 (1st Dept. Mar. 19, 2021 ( here ). Pottorff v. Centra Financial Group, Inc. Background Pottorff involved an annuity contract, which plaintiff claimed was unsuitable and inappropriate for him. Although suitability concerns are often addressed by claims of breach of fiduciary duty and/or negligence, it can also be addressed by fraud claims where, as in Pottorff , the alleged unsuitable investment is rooted in a false and misleading recommendation or omission.  In Pottorff , Plaintiff sold a business and sought the assistance of defendants for an investment vehicle that would not be subject to the fluctuations of the stock market and would provide plaintiff and his wife with a dependable income. Plaintiff claimed that he was not a sophisticated investor and placed his trust in defendants for a secure investment vehicle. Defendants were trusted advisors and fiduciaries of the plaintiff and were treated as such by the motion court. Defendants recommended a single premium immediate annuity joint and survivor life annuity, which would pay plaintiff and his wife $8,702.42 a month while they were both alive. The payment decreased to $4,351.21 upon the death of either one of them. Defendants sought to provide protection for plaintiff should one of them die. Plaintiff was given a physical examination and was found to be uninsurable for life insurance purposes. Plaintiff’s wife was insurable up to $250,000.00 for life insurance purposes. The initial policy premium that was paid on the annuity was $1,425,000.00. The amount of life insurance defendants was able to secure for plaintiff and his wife was inadequate to cover the cost of the annuity premium. Despite the inability to cover this shortfall, defendants recommended the annuity to plaintiff and his wife. Plaintiff’s operative complaint contained five causes of action: fraud in the inducement, fraud, constructive fraud, unjust enrichment and recission. Defendants moved to dismiss. Defendants argued that plaintiff merely alleged a claim for negligence, which was barred by the running of the three-year statute of limitations. Defendants maintained that, at best, plaintiff merely alleged a failure to make a suitable recommendation – a claim that does not rise to level of fraud in the absence of a special relationship, which was non-existent.  Defendants also argued that plaintiff failed to plead scienter with particularity. The only paragraphs in the complaint supporting the scienter element, said defendants, concerned defendants acting with a commercial motive. Such a motive, defendants claimed, does not satisfy the scienter requirement of the cause of action. In addition, defendants argued that plaintiff failed to plead damages. According to defendants, plaintiff did not claim that any of the defendants failed to pay the monthly annuity payments. Instead, said defendants, to the extent plaintiff was harm it was because he had to remain alive in order to earn his premium back through annuity payments. The life annuity in question, explained defendants, did not guarantee complete return of premium through annuity payments.  Further, defendants contended that plaintiff impermissibly used group pleading to allege the fraud, rather than alleging facts that distinguished between the three defendants. Defendants argued that plaintiff failed to specify which defendant committed the alleged wrongful acts and how the actions of any one defendant could be imputed to all defendants. here.=">here."> Finally, defendants maintained that the October 2017 Letter annexed to the operative complaint constituted documentary evidence sufficient to dismiss the complaint under CPLR § 3211(a)(1). Defendants maintained that the October 2017 Letter explained how plaintiff knew the effect that either annuitants’ early death would have on the income payments before he and his wife purchased the annuity and further stated how they sought to generate “maximum income without market exposure” by purchasing the annuity, along with a variable annuity, and life insurance policies to offset lost income from the early death of either annuitant.  [Ed. Note: Under CPLR § 3211(a), a party may make a motion to dismiss on the “ground that . . . a defense is founded upon documentary evidence.” To qualify as “documentary,” the content of the document must be “essentially undeniable and …, assuming the verity of and the validity of its execution, will itself support the ground on which the motion is based.” Amsterdam Hospitality Grp., LLC v. Marshall-Alan Assocs., Inc. , 120 A.D.3d 431, 432 (1st Dept. 2014), quoting David D. Siegel, Practice Commentaries, McKinney’s Cons. Laws of N.Y., Book 7B, C.P.L.R. C3211:10 at 22. Materials that clearly qualify as “documentary evidence” include judicial records, such as judgments and orders, as well as documents reflecting out of-court transactions, such as contracts, deeds, wills, and mortgages. Fontanetta v. Doe , 73 A.D.3d 78, 84-85 (2d Dept. 2010) (citation omitted). Thus, in order for evidence to qualify as “documentary,” it must be unambiguous, authentic and undeniable.” Granada Condominium III Assn. v. Palomino , 78 A.D.3d 996, 996-997 (2d Dept. 2010). In the Second and Fourth Departments, affidavits, deposition testimony, and letters are not considered documentary evidence “within the intendment of CPLR 3211(a)(1).” Nero v. Fiore , 165 A.D.3d 823, 826 (2d Dept. 2018). In the First Department, like the Second  and Fourh Departments, affidavits are not documentary evidence within the meaning of CPLR § 3211(a)(1). Tsimerman v. Janoff , 40 A.D.3d 242 (1st Dept. 2007).] In opposition, plaintiff argued that he satisfied all the elements of a fraud claim. Plaintiff maintained that he provided the who, what, where, when and how of the alleged fraud and did so with the requisite particularity. To that end, plaintiff alleged that (a) defendants represented that the purchase of the annuity, without any backside protection, including, but not limited to, commensurate insurance, was an appropriate investment; (b) defendants knew plaintiff and his wife were unsophisticated investors and would rely on them for investing and planning advice; (c) defendants knew when the annuity was issued that it was not appropriate or suitable for the Pottorffs because it lacked backing and/or protection; (d) defendants knowingly and with the intent to deceive recommended the annuity and advised plaintiff and his wife that it was a suitable and appropriate investment; (e) plaintiff and his wife relied on defendants agents and purchased the recommended annuity; (f) plaintiff’s reliance on defendants was justifiable in light of their position of trust. Plaintiff also claimed that he satisfied the scienter element of the fraud claim. Specifically, plaintiff alleged that (a) defendants knew that plaintiff and his wife were unsophisticated investors and were relying on defendants for advice and recommendations; (b) defendants knew the annuity was unsuitable because it lacked commensurate insurance or other backside protection but recommended the security anyway; and (c) defendants knew that the annuity had limitations and strictures that made the annuity inappropriate for plaintiff and his wife. The motion court denied the motion as to the fraud claims ( here ). The Appellate Division, Fourth Department unanimously affirmed. The Fourth Department’s Decision The Court held that plaintiff “sufficiently stated a claim for fraud by alleging ‘a material misrepresentation of a fact, knowledge of its falsity, an intent to induce reliance, justifiable reliance by the plaintiff and damages.’” Slip Op. at *1 (quoting Eurycleia Partners, LP v Seward & Kissel, LLP , 12 N.Y.3d 553, 559 (2009), other citation omitted)). The Court found that, inter alia , “defendants’ employees and agents, with intent to induce plaintiff’s reliance, falsely represented to plaintiff that the subject annuity was a sound and appropriate investment while knowing that, ‘without the corresponding life insurance or other risk protection<, the annuity> would almost certainly result in a loss to . . . laintiff and windfall to efendants.’” Id. The Court further concluded that plaintiff sufficiently stated a claim for fraudulent inducement.  To state a claim for fraudulent inducement, “there must be a knowing misrepresentation of material present fact, which is intended to deceive another party and induce that party to act on it, resulting in injury.” GoSmile, Inc. v. Levine , 81 A.D.3d 77, 81 (1st Dept. 2010), lv. dismissed , 17 N.Y.3d 782 (2011). See also Wyle Inc. v. ITT Corp. , 130 A.D.3d 438, 439–41 (1st Dept. 2015); MBIA Ins. Corp. v. Countrywide Home Loans, Inc. , 87 A.D.3d 287, 294 (1st Dept. 2011).  The Court found that plaintiff “alleged detrimental reliance on a material representation known to be false,” which was alleged “with the requisite specificity” that resulted in damages. Slip Op. at *1 (citations omitted).  The Court also held that plaintiff “sufficiently stated a claim for constructive fraud.” Id. To plead a cause of action for constructive fraud, a plaintiff must allege the same elements as those to recover for actual fraud, except that a cause of action for constructive fraud does not require proof of defendant’s knowledge of the falsity of his or her representations. Brown v. Lockwood , 76 A.D. 2d 721 (2d Dept. 1980). “The scienter element is replaced by a requirement that the plaintiff prove the existence of a fiduciary or confidential relationship warranting the trusting party to repose confidence in defendants and therefore to relax the care and vigilance that would ordinarily be exercised in the circumstances.” Motion court order; see also Callahan v. Callahan , 127 A.D. 2d 298 (3d Dept. 1987); Brown v. Lockwood , supra .  Like the motion court, the Fourth Department found that plaintiff “alleged the existence of a fiduciary relationship between plaintiff and defendants.” Slip Op. at *1 (citations omitted).  Finally, the Court held that October 2017 was not documentary evidence within CPLR § 3211(a)(1). Slip Op. at *1. The Court also held that even if the letter was permissible documentary evidence, it did not “‘establish conclusively that . . . plaintiff ha no cause of action.’” Id. (quoting Jeanty v. State of New York , 175 A.D.3d 1073, 1074 (4th Dept. 2019), lv. denied , 34 N.Y.3d 912 (2020) (internal quotation marks omitted); other citation omitted). Takeaway Pottorff shows the interplay between a fiduciary relationship and the scienter element of a fraud claim. Where a fiduciary relationship exists, the fiduciary is charged with having special knowledge or information regarding the alleged fraud. In such a situation ( e.g. , where the details are peculiarly within the knowledge of the fiduciary), “the heightened pleading requirements of CPLR § 3016(b) may be met when the material facts alleged in the complaint, in light of the surrounding circumstances, ‘are sufficient to permit a reasonable inference of the alleged conduct’ including the adverse party’s knowledge of, or participation in the fraudulent scheme.” JP Morgan Chase Bank, N.A. v. Hall , 122 A.D.3d 576, 580 (2d Dept. 2014), quoting High Tides LLC v. DeMichele , 88 A.D.3d 954, 957 (2d Dept. 2011). In Pottorff , plaintiff benefited from the foregoing principle. Pottorff also shows that group pleading will not be an impediment to the particularity requirement of CPLR § 3016(b) when the reference to “defendants” is specific to a limited group of persons acting for a corporate defendant, instead of a “diverse group of defendants to whom entirely different acts giving rise to the action may be attributed <.…> ” 47-53 Chrystie Holdings LLC v. Thuan Tam Realty Corp. , 167 AD3d 405 (1st Dept. 2018). We wrote about 47-53 Chrystie Holdings here .

The nature of the equitable remedy of specific performance as related to litigation concerning real estate contracts has been explained by this BLOG < here =">here"> and also addressed, inter alia , < here =">here"> and < here =">here"> .  Suffice it to say, specific performance is an equitable remedy requiring the breaching party to perform under a contract and is frequently awarded in situations where the subject matter of a contract is unique – making an award of money damages inadequate.  Sokoloff v. Harriman Estates , 96 N.Y.2d 409 (2001).  It is generally accepted that “the equitable remedy of specific performance is routinely awarded in contract actions involving real property, on the premise that each parcel of real property is unique.”  Alba v. Kaufman , 27 A.D.3d 816, 818 (3 rd Dep’t 2006) (citations and internal quotation marks omitted). On March 17, 2021, the Second Department decided B&A Realty Management, LLC v. Gloria , a case in which the buyer sought to enforce a real estate contract.  Defendant seller owned undeveloped property in Upstate New York and, in 2014 contracted to sell same to plaintiff buyer.  Pursuant to the contract, purchaser had two years from the end of a 90-day due diligence period to obtain all necessary governmental approvals for the contemplated development project.  “Paragraph 7(b) of the agreement conferred on either party the right to cancel the agreement if all necessary approvals were not obtained .”  The Time-frame expired on October 1, 2017. While “most” governmental approvals were obtained within the Time-frame, all were not.  Accordingly, on September 28, 2017, buyer’s counsel wrote to seller’s counsel to advise that the final approvals were expected within 60 to 90 days.  However, on October 2, 2017, defendant cancelled the contract pursuant its cancellation provisions and directed his counsel to return the down payment to the plaintiff.  “In response, by letter dated October 3, 2017, declared time to be of the essence, waived the contractual contingency of obtaining all governmental approvals, and stated that it was ready, willing, and able to close.” Buyer commenced an action for specific performance and moved for a preliminary injunction.  Seller’s cross-motion to dismiss the complaint was granted by supreme court and buyer’s motion for a preliminary injunction was denied and the decision was affirmed by the Second Department. The Court found that the complaint should be dismissed pursuant to CPLR 3211(a)(1) because the contract “clearly and unambiguously provided that ‘Seller or Purchaser may terminate this Agreement’ if ‘Purchaser has not satisfied this contingency to secure the governmental approvals by the end of the as extended.’”  (Some brackets omitted some added.)  Relying on W.W.W. Assoc. v. Giancontieri , 77 N.Y.2d 157 (1990), the Court noted that “the issue of whether or not a writing is ambiguous is a question of law to be resolved by the courts, and a clear and complete writing will be enforced according to its terms.”  The Court further noted that: Contract language which is clear and unambiguous must be enforced according to its terms ( see at 162). Where, as here, a condition in a real estate contract relating to government approval expressly grants to the seller the right to cancel the contract in the event that the requisite approval is not obtained, the seller may properly exercise its right to terminate the contract if such approval is not timely obtained ( see B.S.P. Dev. Corp. v Orphan Asylum Socy. of City of Brooklyn , 165 AD2d 850; Oak Bee Corp. v Blankman & Co . , 154 AD2d 3, 7). However, the seller may, orally or by its conduct, waive its contractual right to cancel the contract ( see Ehrenpreis v Klein , 260 AD2d 532 ; Dellicarri v Hirschfeld , 210 AD2d 584 ; Kaufman v Haverstraw Rd. Lands , 158 AD2d 675). As it was undisputed that purchaser failed to timely obtain all necessary governmental approvals, the Court “agree with Supreme Court that the properly cancelled the agreement on October 2, 2017, in accordance with paragraph 7(b) thereof.”  The Court further found that buyer “did not allege any words or conduct of the reflecting an intent to waive his contractual right to cancel the agreement.”   The Court also rejected buyer’s argument that it could “unilaterally waive the governmental approval contingency in the contract” because “that contingency was not inserted solely for its benefit.”  (Citations omitted.)

Today, we examine Two Rivers Entities, LLC v. Sandoval , 2021 N.Y. Slip Op. 01527 (1st Dept. Mar. 16, 2021) ( here ), a case involving breach of contract and the faithless servant doctrine.  Before we examine Two Rivers , we discuss the principles of law at issue in the case. Breach of Contract To sustain a breach of contract cause of action, a plaintiff must allege: (1) a valid agreement; (2) the plaintiff’s performance of its obligations under the agreement; (3) the defendant’s breach of that agreement; and (4) damages. Morris v. 702 E. Fifth St. HDFC , 46 A.D.3d 478, 479 (1st Dept. 2007); Furia v. Furia , 116 A.D.2d 694, 695 (2d Dept. 1986); see also Stonehill Capital Mgt., LLC v. Bank of the West , 28 N.Y.3d 439, 448 (2016).  When reviewing a contract, the court is to construe it “in accord with the parties’ intent.” Riverside South Planning Corp. v. CRP/Extell Riverside LP , 60 A.D.3d 61, 66 (1st Dept. 2008), aff’d , 13 N.Y.3d 398 (2009). “The best evidence of what parties to a written agreement intend is what they say in their writing .... Thus, a written agreement that is clear and unambiguous on its face must be enforced according to the plain terms, and extrinsic evidence of the parties’ intent may be considered only if the agreement is ambiguous. Id. (internal citations omitted). Whether a contract is ambiguous presents a question of law for the court to resolve. Id. at 67.  The Faithless Servant Doctrine The faithless servant doctrine provides that an employee who is faithless in performance of their duties ( i.e. , breaches their duty of loyalty to the employer) is not entitled to recover either salary or commission. See Feiger v. Iral Jewelry , 41 NY2d 928, 928 (1977). While the language of the rule may imply a broad application, courts generally apply the rule relatively narrowly. See , e.g. , W. Elec. Co. v. Brenner , 41 N.Y.2d 291, 295 (1977); Maritime Fish Prods., Inc. v. World-Wide Fish Prods., Inc. , 100 A.D.2d 81, 88 (1st Dept. 1984). Courts will usually hold an employee liable under the faithless servant doctrine only if the employee has usurped a corporate opportunity or actively stolen from the employer. See Visual Arts Found., Inc. v. Egnasko , 91 A.D.3d 578, 579 (1st Dept. 2012); Soam Corp. v. Trane Co. , 202 A.D.2d 162, 162 (1st Dept. 1994) (employee promoted competitor’s products over employer’s); Phansalkar v. Andersen Weinroth & Co., L.P. , 344 F.3d 184, 203 (2d Cir. 2003) (employee usurped corporate opportunity). here,=">here," >here=">here" and="and" >here.=">here."> Two Rivers Entities, LLC v. Sandoval In 2016, defendant Tacho Sandoval became a Class A member of plaintiff Two Rivers Entities, LLC (the “Company”), after investing millions of dollars in the Company. Although investing millions in the Company, Sandoval was not given any management rights. At the time of his investment, Sandoval’s rights were governed by the Company’s Amended and Restated Operating Agreement (“Operating Agreement”). Under Section 5.7 of the Operating Agreement, members were forbidden from “directly or indirectly invest in, or engag in any business which engage in Trading Instruments or in any manner compete with the business of , except for an ownership interest of less than 2% in any publicly traded Company.” Section 7.3(a)(vii) of the Operating Agreement provided that members, such as Sandoval, could have their membership terminated for cause if they materially breached the Operating Agreement. Other grounds for a for-cause termination included a member’s negligence or misconduct in the course of his/her membership or in the performance of the Member’s duties or responsibilities or “embezzlement, fraud or dishonestly committed (or attempted) by the Member, or at his direction.” In October 2019, Sandoval agreed to restructure some of the financing he had provided to the Company. This was effectuated by an Amended and Restated Promissory Note, dated November 1, 2019 (the “Note”). The Note set forth the specifics of the refinancing but did not address the Operating Agreement or Sandoval’s obligations thereunder. Prior to execution of the Note, between July 2017 and October 2018, Sandoval allegedly violated the federal securities laws by inaccurately and untimely disclosing his acquisition of more than 10% of the stock of Clean Coal Technologies, Inc. (“CCT”), a publicity traded company that focuses on the environmental impacts of coal. Sandoval’s affiliation with the Company and his alleged violations purportedly dissuaded certain prospective investors from investing in the Company. On October 16, 2019, prior to the Note’s execution, the Company asked Sandoval to correct his securities filings, but he allegedly refused to do so. The Company commenced the action in November 2019. Its amended complaint included two causes of action: (1) breach of the Operating Agreement; and (2) forfeiture of compensation under the faithless-servant doctrine. Sandoval moved to dismiss, arguing that the release in the Note barred both claims. Even if it did not, Sandoval maintained that none of his alleged actions violated any provisions of the Operating Agreement and that he was not subject to the faithless-servant doctrine. The Motion court agreed ( here ) and dismissed the  complaint. As a threshold matter, the motion court held that the release in the Note, though broad in scope, did not encompass the terms of the Operating Agreement. It did “not address the Operating Agreement’s prohibition on Sandoval investing in other companies,” said the motion court, “and ha nothing to do with the alleged securities violations.…” “Had these sophisticated parties intended for the Note’s release to cover these disputes,” observed the motion court, “they would have ensured it expressly did so.” See Fitzgerald v. Fahnestock & Co. , 48 A.D.3d 246, 247 (1st Dept. 2008). This was important because had the release applied to the claims asserted, dismissal of the contract and faithless servant causes of action would have been moot. On the breach of contract cause of action, the motion court held that Section 5.7 of the Operating Agreement did not prohibit Sandoval from investing in other companies, “even for a stake greater than 2%, unless that company ‘engage in Trading Instruments or in any manner compete with the business of the Company.’” According to the motion court, “ here no indication in the AC or otherwise that CCT ‘engages in Trading Instruments or in any manner competes with the business of the Company.’” Thus, concluded the motion court, “the Company ha not stated a claim for breach of section 5.7.” “Nor,” held the motion court, had “it stated a claim for breach of section 7.3(a).” The reason, said the motion court, was the Company had not alleged that Sandoval acted negligently or otherwise “in the course of his membership or in the performance of the duties or responsibilities” as a member of the Company. “The alleged securities violations,” explained the motion court, “ha nothing to do with Sandoval’s membership in or funding of the Company.” The motion court noted that it was “clear that this claim is focused on the erroneous contention that section 5.7 prohibits Sandoval from having a 2% stake in any publicly traded company regardless of whether that company ‘engages in Trading Instruments or in any manner competes with the business of the Company.’” “The 2% limit is clearly a safe harbor to these two prohibitions and not an independent limitation,” concluded the motion court.  Additionally, the motion court held that the Company failed to plead a violation of the faithless servant doctrine “because the Company ha not alleged any breach that would serve as a predicate for application of the faithless-servant doctrine.…”  Moreover, the motion court held that the issue was not misconduct in connection with the performance of Sandoval’s employment, but rather the repayment of a loan. “The obligation to repay a loan is purely a matter of contract that does not arise from a fiduciary relationship,” said the motion court.” The motion court explained that “ he faithless-servant doctrine cannot be raised to recoup money that the Company repaid someone to satisfy its debt.” This was especially so since the Company did not assert “a separate cause of action for breach of fiduciary duty (likely because Sandoval not a manager and the Operating Agreement not contractually establish non-default fiduciary duties for him…).” In short, concluded the motion court, “Plaintiff cites no authority for use of the faithless-servant doctrine to preclude recovery of loans. The doctrine is about equitable forfeiture of compensation for the services of a disloyal fiduciary.” (Citation omitted). The First Department’s Decision On appeal, the First Department unanimously affirmed. The Court agreed with the motion court in that defendant did not breach Section 5.7 of the Operating Agreement. Slip Op. at *1. The Court noted that the plain language of that section, “unambiguously limits the prohibition on investing to a competing business.” Id. As such, defendant’s acquisition of more than a 2% ownership interest in CCT, a publicly traded company that does not compete with the Company, could not be a breach of the Operating agreement. Id. The Court further held that even if defendant breached Section 7.3 of the Operating Agreement, “the company’s remedy under of the operating agreement for-cause termination of the member, not a claim for breach of contract.” Id. As to the Company’s second cause of action ( i.e. , breach of the faithless servant doctrine), the Court held that the doctrine did not apply to defendant. Id. Noting that the doctrine only applies to “an employee or agent who is faithless in the performance of his or her duties” (citations omitted), the Court found that defendant was “a nonmanaging member of plaintiff, was not an employee and not alleged to have acted on plaintiff’s behalf as its agent.…” Id. Additionally, there were “no allegations that funneled business away to a competitor or engaged in theft.” Id. at *1-*2. Accordingly, concluded the Court, “plaintiff’s faithless servant claim was correctly dismissed.” Id. at *2. Takeaway In claiming a breach of contract ( i.e. , enforcing or attempting to enforce a contract), a plaintiff must plead a breach of the contract by the defendant. In that regard, the plaintiff must demonstrate that the defendant failed to perform its obligations under the agreement. Two Rivers highlights this issue. Two Rivers also highlights the importance of giving the words of the parties’ contract their intended meaning. This is especially important where, as in Two Rivers , the language is clear and unambiguous on its face.  Two Rivers further highlights the importance of pleading the elements of a claim. As noted by the Court, to plead a faithless servant claim, the defendant must be an employee or agent of the employer, breach a duty of loyalty to the employer, and usurp a corporate opportunity or actively steal from the employer. Plaintiff failed to allege the foregoing.