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Over the past several months, this Blog has examined cases in which plaintiffs brought contract claims and fraud claims in the same action ( here , here and here ). As discussed in those posts, the courts dismissed the cases because the plaintiffs failed to allege an independent basis upon which the claims could stand side-by-side.  Similarly, this Blog has examined cases involving veil piercing and the Statute of Fraud. As to the former, the courts dismissed the actions because the plaintiffs failed to demonstrate with particularity the abuse of the corporate form by the corporate officer or shareholder. As to the latter, the disposition of many of the actions depended upon whether the plaintiffs could demonstrate the capability of the agreement being fulfilled within one year.  In Osman v. Brown , 2020 N.Y. Slip Op. 32319(U) (Sup. Ct., N.Y. County July 17, 2020) ( here ), the subject of today’s post, the foregoing issues were considered by the Court.  Osman v. Brown Osman arose out of a commercial transaction involving the purchase of Defendant J. Streicher & Co., LLC (the “Company”). To effectuate the transaction, Plaintiff J. Streicher, LLC (the “Buyer”) was formed by Plaintiff Bulent Osman (“Osman”), Defendant J. Streicher Group, LLC (the “Seller”) and Defendant Spiorad Capital Partners, LLC (“Spiorad”), with the founders holding 80%, 10%, and 9% of the Buyer’s ownership interest, respectively.  The Buyer and the Seller signed the Purchase Agreement on October 24, 2017, which provided for the completion of the purchase through two closings.  Plaintiffs alleged de facto compliance with all obligations set forth in the Purchase Agreement; specifically, transferring $200,000 to Defendants on March 11, 2017, paying $850,000 to third-party ALC Manufacturing, and providing assistance to Defendants in connection with a $2,500,000 deal with another third-party.  Osman alleged that Defendant Thomas Brown stated that a final $150,000 payment would then be sufficient to complete the Second Closing. Plaintiffs alleged that they complied, with Osman personally transferring the requested amount to Brown, but that Defendants became “unavailable” after receiving the transfer and failed to deliver the 100% ownership interest in the Company.  Defendants delivered to Osman a notice of termination of the Purchase Agreement on August 29, 2018. The notice of termination contained numerous exhibits detailing Company meetings, Company emails with FINRA, and a proposed contract delivered by Osman detailing “a new source of recapitalization from a third party” that deviated from the terms of the Purchase Agreement. Slip Op. at *2. Osman was then removed as a member of the Buyer entity by board resolution on December 17, 2018, with Spiorad and the Seller absorbing his ownership interest.  Plaintiffs filed suit on May 20, 2019, alleging claims for 1) breach of contract; 2) specific performance; 3) injunctive relief; 4) fraud; 5) negligent misrepresentation; 6) unjust enrichment; 7) breach of contract against Thomas Brown; 8) unjust enrichment against Thomas Brown; and 9) civil conspiracy.  Defendants moved to dismiss. The Court granted the motion in part and denied it in part. We look at the Court’s decision with respect the contract claims and the fraud claim. The Court’s Decision Defendants moved to dismiss the contract claims alleged against the individual defendants ( i.e. ,  Brown, Plum, Frey, and Pickett) and the corporate defendants ( i.e. , Spiorad and the Company (J. Streicher & Co., LLC)), on the grounds that the members of a corporation are not individually liable for the corporation’s breach of a contract. The Court granted the motion. Generally, “ director is not personally liable for a corporation’s breach of an agreement merely by virtue of his or her decisions or actions that resulted in the corporation’s promise being broken.” Hixon v. 12-14 E. 64th Owners Corp. , 107 A.D.3d 546, 547 (1st Dept. 2013). “ nly parties to a contract can be sued for breach.” Shapiro v. Ninah Consulting, Inc. , 2019 WL 3854919, at *2 (Sup. Ct., N.Y. County 2019) (citing Leonard v. Gateway II, LLC , 68 A.D.3d 408 (1st Dept. 2009)). “Under New York law, the corporate veil can be pierced where there has been, inter alia , a failure to adhere to corporate formalities, inadequate capitalization, use of corporate funds for personal purpose, overlap in ownership and directorship, or common use of office space and equipment.” Forum Ins. Co. v. Texarkoma Transp. Co. , 229 A.D.2d 341, 342 (1st Dept. 1996). “Given the courts’ reluctance to disregard the corporate form, a plaintiff must allege, with the requisite ‘particularized statements detailing fraud or other corporate misconduct,’ facts that would warrant piercing the corporate veil.” State Ins. Fund v. Iovine , 2007 WL 2175523 (Sup. Ct., N.Y. County 2007) (quoting Sheridan Broadcasting Corp v. Small , 19 A.D.3d 331, 332 (1st Dept. 2005)). here,=">here," >here=">here" and="and" >here.=">here."> The Court found that the complaint “fail to include any specific allegations that these eight Defendants exercised complete domination and/or abused the corporate form to commit wrongdoing.” Slip Op. at *6. “Rather,” said the Court, “Plaintiffs merely allege that ‘Plaintiffs entered into the valid Agreement with Defendants under which Defendants were obligated to sell the Company to Plaintiffs pursuant to the terms of the Agreement dated October 24, 2017’, despite the fact that the Purchase Agreement was signed only by the Buyer (J. Streicher, LLC) and Seller (J. Streicher Group, LLC).” Id. (citations to record omitted). The Court concluded that “ ecause these … Defendants were not signatories to the Purchase Agreement and Plaintiffs failed to sufficiently plead facts showing a basis to pierce the corporate veil,” the contract claims against Defendants Brown, Plum, Frey, Pickett, Spiorad, and the Company (J. Streicher & Co., LLC) could not stand. In addition, Plaintiffs alleged that Defendant Brown breached an oral agreement to repay a loan. The claim involved an alleged meeting between Osman and Brown in which Brown asked Osman for a loan of $100,000 to pay off legal bills. Osman alleged that he provided two loans to Brown, both in the amount of $15,000. Defendants moved to dismiss the claim for breach of contract on the grounds that the alleged contract was an oral contract of an infinite duration and was therefore unenforceable pursuant to the Statute of Frauds. “Under the statute of frauds, an oral agreement that cannot be performed within a year of its creation is void.” Cohen v. HDS Trading Corp. , 2014 WL 2195401, at *1 (Sup. Ct., N.Y. County 2014) (citing General Obligations Law § 5-701)). “Wherever an agreement has been found to be susceptible of fulfillment within that time, in whatever manner and however impractical, this court has held the one-year provision of the Statute to be inapplicable, a writing unnecessary, and the agreement not barred.” D & N Boening, Inc. v. Kirsch Beverages, Inc. , 63 N.Y.2d 449, 455 (1984). here,=">here," >here=">here" and="and" >here.=">here."> The Court found that the “alleged loan contract could have been completed, i.e. repaid, within one year.” Slip Op. at *8. “As such,” concluded the Court, “the motion to dismiss based on the Statute of Frauds is denied.” Id. The Court also held that Plaintiffs sufficiently alleged a claim for breach of contract against J. Streicher Group, LLC (the Seller). The Court explained that there was “at least an attempted performance of the First Closing obligations” by Plaintiffs and an allegation “that Seller became unavailable and terminated the contract, resulting in damages.” Id. At the pleading stage, such allegations were enough to withstand a challenge. Having sustained most of the contract claims, the Court turned its attention to the fraud claim. As this Blog has noted in numerous posts, “ fraud claim should be dismissed as redundant when it merely restates a breach of contract claim, i.e. , when the only fraud alleged is that the defendant was not sincere when it promised to perform under the contract.” First Bank of Americas v. Motor Car Funding, Inc. , 257 A.D.2d 287, 291 (1st Dept. 1999). “A fraud-based cause of action may lie, however, where the plaintiff pleads a breach of a duty separate from a breach of the contract.” Manas v. VMS Assocs., LLC , 53 A.D.3d 451, 453 (1st Dept. 2008). The Court held that “the allegations in the Complaint insufficient to withstand the motion to dismiss.” Slip Op., at *10. The Court found that the complaint “merely boilerplate language and fail to identify any specific misrepresentation of a material fact made by Defendants that Plaintiffs relied upon to their detriment.” Id. “Further,” observed the Court, “the claim for fraud duplicative of the claim for breach of contract because Plaintiffs fail to identify a separate breach of duty aside from the Defendants’ nonperformance of the Purchase Agreement.” Id. Accordingly, the Court dismissed the fraud cause of action. Finally, the Court addressed the issue of derivative standing by Osman.  Business Corporation Law § 626 provides that a derivative action may be brought on behalf of a corporation by a shareholder, but the plaintiff must be a shareholder both “at the time of bringing the action and … at the time of the transaction of which he complains<.> ” BCL § 626 (a), (b). This requirement is known as the “contemporaneous ownership rule” and is “strictly enforced” by the courts ( Honzawa Holding Co. v. Hiro Enterprise USA, Inc. , 291 A.D.2d 318, 318 (1st Dept. 2002)) because “only current shareholders have a continuing interest in the welfare of the company” ( Zentz v. Intl. Foreign Exch. Concepts, L.P. , 33 Misc. 3d 1212 , at *8 (Sup. Ct., Kings County 2011)). See Schorr v. Steiner , 46 AD3d 435, 436 (1st Dept. 2007) (“the individual plaintiffs’ lack of legal capacity to pursue a derivative action was demonstrated by, inter alia , their failure to adduce any evidence that they were … shareholders or “beneficial” owners at the time of the alleged fraud and when they commenced this action”) (emphasis in original)). The Court held that Osman lacked the capacity to bring the action on behalf of the Buyer. Slip Op. at *4. The Court explained that Osman had been removed as a member of the Buyer on December 17, 2018, by written consent of its other members, JSG and Spiorad, resulting in the splitting up of Osman’s ownership interest among those remaining members. Id. “Despite his removal,” said the Court, “Osman commenced this lawsuit on behalf of both himself and the Buyer entity on May 20, 2019.” Id. Such action violated the “contemporaneous ownership rule”, concluded the Court. Id. here=">here" >here.=">here.">

Risk. Every investment decision carries with it some degree of risk. The greater the risk, the greater the reward. Of course, the flip side is also true. The greater the risk, the greater the potential to lose some or all of the money invested. Thus, when it comes to investing, there is no such thing as a sure thing. Notwithstanding, there are people who promise no risk, no loss investing. They claim that they can place a person’s money into a “can’t miss” investment, where the risk of loss is minimal, if not non-existent, and the returns are above market. Sounds too good to be true. Not for the Ponzi scheme organizer. What is a Ponzi Scheme? “A Ponzi scheme is an investment fraud that involves the payment of purported returns to existing investors from funds contributed by new investors. Ponzi scheme organizers often solicit new investors by promising to invest funds in opportunities claimed to generate high returns with little or no risk. With little or no legitimate earnings, Ponzi schemes require a constant flow of money from new investors to continue. Ponzi schemes inevitably collapse, most often when it becomes difficult to recruit new investors or when a large number of investors ask for their funds to be returned.” See https://www.sec.gov/spotlight/enf-actions-ponzi.shtml . Shutting down Ponzi schemes and holding the organizers accountable for such frauds is an important part of the SEC’s enforcement mission. Recently, the SEC announced action it had taken against an alleged Ponzi-like scheme organizer responsible for bilking investors out of $60 million. The SEC Files Charges Against Chief Investment Officer Behind a $60 Million Ponzi-Like Scheme On July 17, 2020, the Securities and Exchange Commission (“SEC” or “Commission”) announced that it charged David Hu (“Hu”), the co-founder and chief investment officer of Manhattan-based International Investment Group LLC (“IIG”), with fraud for his role in a $60 million Ponzi-like scheme. In its complaint, the SEC alleged that, from October 2013, Hu orchestrated multiple frauds on IIG’s investment advisory clients ( here ). According to the SEC, Hu grossly overvalued the assets in IIG’s flagship hedge fund, resulting in the fund paying inflated fees to IIG. In addition, through IIG, Hu allegedly sold at least $60 million in fake trade finance loans to other investors and used the proceeds to pay the redemption requests of earlier investors and other liabilities – a classic form of a Ponzi scheme. The SEC alleged that Hu deceived IIG clients into purchasing these loans by directing others at IIG to create and provide to the clients fake loan documentation to substantiate the non-existent loans, including fake promissory notes and a forged credit agreement. “As alleged, Hu’s deception caused substantial losses to a retail mutual fund, and other funds IIG advised,” said Sanjay Wadhwa, Senior Associate Director of the SEC’s New York Regional Office. “The SEC remains committed to holding accountable individual wrongdoers who seek to take advantage of investors for personal gain, including when they employ elaborate means to cover up their fraud.” The SEC’s complaint, filed in the United States District Court of the Southern District of New York, charged Hu with violating the antifraud provisions of the federal securities laws. The SEC is seeking permanent injunctive relief, disgorgement, and civil penalties. In a parallel action, the U.S. Attorney’s Office for the Southern District of New York announced criminal charges against Hu ( here ). The Government alleged that, over a period of more than 10 years, HU perpetrated an over $100 million scheme to defraud investors in IIG’s funds, including by creating fictitious investments and overvaluing investments used to generate funds to pay off earlier investors in a Ponzi-like manner. Hu was charged with investment adviser fraud, securities fraud, and wire fraud. A copy of the Information can be found here . Acting Manhattan U.S. Attorney Audrey Strauss said: “As alleged, David Hu directed a multimillion-dollar, years-long scheme to defraud investors.  Putting profit ahead of his fiduciary duties, Hu allegedly mismarked millions of dollars of loan assets to cover up millions in losses. Hu also created fake entities and loans, and falsified paperwork to deceive auditors and avoid detection.  Now David Hu stands charged with federal crimes and faces time in federal prison.” The SEC previously charged IIG with fraud on November 21, 2019, and revoked IIG’s registration as an investment adviser on November 26, 2019 ( here ).  On March 30, 2020, the SEC obtained a final judgment ( here ) on consent that enjoined IIG from violating the antifraud provisions of the federal securities laws and required IIG to pay more than $35 million in disgorgement and prejudgment interest.

This Blog has previously addressed issues concerning mortgage contingency clauses.  < HERE =">HERE">   Briefly stated, mortgage contingency clauses in contracts for the sale of real property make the sale contingent on the purchaser obtaining a purchase money mortgage consistent with the clause’s requirements.  The failure to obtain a mortgage commitment after a diligent effort to do so, permits the potential purchaser to cancel the contract and demand the return of a down payment without being in breach of that contract.  See, e.g. , Schramm v. Solow , 91 A.D.3d 624, 626 (2 nd Dep’t 2012) (citations omitted) (“the buyer met her burden of establishing her prima facie entitlement to judgment as a matter of law by tendering evidence in admissible form that she attempted to secure a mortgage loan, but was unable to obtain the requisite firm commitment as required by the terms of the mortgage contingency clause of the contract and, thus, was entitled to recover her down payment.”)  “A mortgage contingency clause protects a contract vendee from being obligated to consummate the transaction in the event mortgage financing cannot be obtained in the exercise of good faith through no fault of the purchaser.”  Creighton v. Milbauer , 191 A.D.2d 162, 166 (1 st Dep’t 1993) (citations omitted).  A purchaser has “an obligation under mortgage contingency clause to make a diligent, prompt, and truthful application to a bona fide lending institution for a mortgage.”  Big Apple Meat Market, Inc. v. Frankel , 276 A.D.2d 657, 659 (2 nd Dep’t 2000) (citations and internal quotation marks omitted).   In many cases a “mortgage contingency clause a condition precedent inuring to the benefit of both parties, and therefore be waived unilaterally by the .”  Degree Security Systems, Inc. v. F.A.B. Land Corp. , 17 A.D.3d 402, 403 (2 nd Dep’t 2005) (citation omitted).  Indeed, “unless the contract clearly states otherwise, provisions are meant to protect the seller as well as the buyer, on the theory that the issuance of a mortgage commitment to the prospective buyer increases in direct proportion to the amount of the mortgage commitment itself, the chances that the buyer will in fact be able to perform his obligations in a timely manner.”  Ting v. Dean , 156 A.D.2d 358, 360 (2 nd Dep’t 1989) (citations omitted). If a purchaser seeks a mortgage commitment that is inconsistent with the mortgage contingency clause, the failure to procure a commitment will not provide purchaser with grounds to cancel the contract and have the down payment returned.  For example, the mortgage contingency clause in Post v. Mengoni , 198 A.D.2d 487 (2 nd Dep’t 1993), required purchaser to obtain a $2,000,000 mortgage commitment.  Purchaser was deemed to be in breach of the contract, and was not entitled to the return of his down payment, because his application for a mortgage in the amount of $2,100,000 was denied.  In Kweku v. Thomas , 144 A.D.3d 1109 (2 nd Dep’t 2016), the Court dismissed purchaser’s complaint for the return of a down payment because “ ll three of the buyer’s successive mortgage loan applications indicate that he applied for a loan in an amount that exceeded the $625,950 amount set forth in the mortgage contingency clause y applying for a mortgage in an amount greater than that stated in the contract, the buyer breached the contract, as a matter of law.”  Kweku , 144 A.D.3d at 1111 (citations omitted).  The Kweku Court also found purchaser in breach by applying for an “FHA” mortgage loan when such a loan was prohibited by the contract.  Kweku , 144 A.D.3d at 1111 Needless to say, mortgage contingency clauses give rise to a significant amount of litigation.  On July 15, 2020, the Appellate Division, Second Department, decided Bigfoot Media Properties, LLC v. Cushman In T, LLC , a case in which the Court was called upon to interpret a mortgage contingency clause.  The defendant in Bigfoot was the owner of a single-family house (the “Property”).  Plaintiff limited liability company, as purchaser, entered into a contract to purchase the Property from defendant.  The purchase price for the Property was $3,150,000 and plaintiff made a $200,000 down payment (the “Down Payment”) at the time the contract was executed.  The Down Payment was deposited into the escrow account of defendant’s attorney. The subject contract “contained a mortgage contingency clause that provided that the plaintiff shall make a prompt application for a ‘conventional’ 30-year mortgage loan in the sum of $2,000,000, and that the plaintiff would be entitled to cancel the contract and receive a refund of the down payment plus accrued interest in the event that the application was denied.”  Plaintiff, however, never applied for a loan.  “Instead, Jeffrey Gerson, the sole member of the plaintiff, applied to Wells Fargo Bank, N.A…., for a $2,000,000 mortgage loan for himself, submitting his own personal financial information rather than the financial information of the plaintiff.”  Because the Property was being purchased as “investment property” and was appraised at $3,000,000, the bank issued a commitment letter approving a mortgage loan in the amount of $1,950,000.  Defendant’s offer to loan plaintiff an additional $50,000 on the same terms as the bank’s loan was rejected by Plaintiff.  Based on the bank’s appraisal (which was $150,000 less than the purchase price), plaintiff tried to cancel the transaction and demand the return of the Down payment, which request defendant refused. Plaintiff commenced the underlying action for the return of the Down Payment.  The motion court denied plaintiff’s motion for summary judgment and granted defendant’s cross-motion for the same relief.  The Second Department affirmed the motion court’s order and remitted the matter for the “entry of a judgment, inter alia, declaring that the defendant is entitled to retain the down payment.” (Citation omitted).  The Court found that plaintiff “breached the contract without lawful excuse by failing to apply for a mortgage loan.”  (Citation omitted.)  The Court agreed that the application for a mortgage loan by plaintiff’s sole member “on his own behalf” “did not satisfy the plaintiff’s obligation, as a limited liability company is a separate legal entity from its members.”  (Citation and internal quotation marks omitted.)

In today’s article, we examine ASV Techs., Inc. v. Sterling Natl. Bank , 2020 N.Y. Slip Op. 32208(U) (Sup. Ct., N.Y. County July 7, 2020) ( here ). ASV involved the Statute of Frauds and the impact emails can have on the court’s analysis in deciding whether the Statute of Frauds will bar a breach of contract claim. Background AVS involved an alleged breach of a computer program end-user license agreement (“EULA”) between plaintiff, AVS Techs., Inc. , and the predecessor-in-interest of defendant, Sterling National Bank (“Sterling”).  ASV is a software technology company that markets signature verification and check fraud detection software for use in the banking industry. In 2003, AVS entered into an End User License Agreement (“2003 EULA”) with Hudson Valley Bank (“Hudson”), Sterling’s predecessor-in-interest. The 2003 EULA granted Hudson a three-year license to copy and use ASV’s eBank Discovery program, which was customized for Hudson’s use and included all necessary hardware and software to run the program. Upon termination of the 2003 EULA, the parties entered a new EULA, which took effect August 31, 2006 (“2006 EULA”). The 2006 EULA allowed Hudson to continue to use the eBank Discovery software program for a fee of $2,000 per month. The 2006 EULA provided for an initial term of three years with automatic one-year renewals, subject to Hudson’s power to terminate upon ninety days written notice. ASV alleged the 2006 EULA remained in effect through December 31, 2014. In January 2015, ASV sent Hudson a new EULA, which ASV intended would “supersede or supplant the 2006 EULA” (the “2015 EULA”). Under the 2015 EULA, Hudson would continue to pay a monthly license fee of $2,000 but would also pay an “additional $833 per month for license use of 310/312 custom module”, a new custom add-on module. The 2015 EULA provided for an initial term of three years with automatic two-year renewals. The 2015 EULA stated that “ y installing, copying or otherwise using the SOFTWARE PRODUCT, you agree to be bound by the terms of this EULA.” The parties did not sign the 2015 EULA. ASV alleged that Hudson manifested its acceptance of the 2015 EULA by continuing its use of ASV’s software products, as per a mode of acceptance stated in the contract. As a “courtesy,” ASV claimed to have deferred the $833 per month payments for license use of the 310/312 custom module. Sterling succeeded Hudson by reason of a merger in May 2015 and assumed Hudson’s contractual rights and obligations to ASV. By letter dated May 8, 2016, Sterling sent ASV a notice of termination of the 2006 EULA, effective August 30, 2016. ASV alleged that the termination was “ineffective and void” and the 2015 EULA did not expire until October 1, 2017. Subsequently, ASV billed Sterling “for the work performed at specific request and served Sterling with a written demand to cease use of ASV’s software and return all proprietary hardware, software, and support manuals.” ASV commenced the action for breach of contract, alleging that Sterling breached the 2015 EULA by (1) failing to make required payments for the 310/312 custom module for the period of June 1, 2015 to October 30, 2017, and (2) refusing to return ASV’s proprietary hardware, software, and support manuals despite revocation of the license. Sterling moved to dismiss the amended verified complaint, pursuant to CPLR 3211 (a) (1) and (7), on the grounds that: (1) the 2015 EULA was unsigned and, therefore, void and nonbinding in accordance with the Statute of Frauds and the written terms of the 2006 EULA; (2) Sterling properly terminated the 2006 EULA; and (3) the documentary evidence submitted in support of the motion refuted ASV’s argument of a breach. The Court granted the motion. The Court’s Decision On a motion to dismiss under CPLR 3211 (a) (7), the court must “accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory.” Leon v. Martinez , 84 N.Y.2d 83, 87-88 (1994). “ are legal conclusions, as well as factual claims which are either inherently incredible or flatly contradicted by documentary evidence” cannot survive a motion to dismiss. Summit Solomon & Feldesman v. Lacher , 212 A.D.2d 487, 487 (1st Dept. 1995) (citation omitted). To prevail on a CPLR 3211 (a) (1) motion to dismiss, the movant has the “burden of showing that the relied upon documentary evidence ‘resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff’s claim.’” Fortis Fin. Servs. v Filmat Futures USA , 290 A.D.2d 383, 383 (1st Dept. 2002) (citation omitted). “A cause of action may be dismissed under CPLR 3211 (a) (1) ‘only where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law.’” Art and Fashion Group Corp. v Cyclops Prod., Inc. , 120 A.D.3d 436, 438 (1st Dept. 2014) (citation omitted). “The documents submitted must be explicit and unambiguous” ( Dixon v. 105 West 75th St. LLC , 148 A.D.3d 623, 626 (1st Dept. 2017) (citation omitted)), and their content “essentially undeniable” ( VXI Lux Holdco S.A.R.L. v. SIC Holdings, LLC , 171 A.D.3d 189, 193 (1st Dept. 2019) (citation omitted)). Correspondence through letters and emails may be properly considered by the court as documentary evidence under CPLR 3211 (a) (1). See Tozzi v. Mack , 169 A.D.3d 547, 548 (1st Dept. 2019); Art and Fashion Group , 120 A.D.3d at 438. The Court found that Sterling National satisfied the foregoing standards. 1. Statute of Frauds Under General Obligations Law § 5-701(a) (1), “ very agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith ... if such agreement, promise, or undertaking by its terms is not to be performed within one year of the making thereof ….” A contract that is unsigned, and by its own terms, “terminable within one year only upon a breach by one of the parties” is void under the Statute of Frauds. D & N Boening, Inc. v. Kirsch Beverages, Inc. , 63 N.Y.2d 449, 456 (1984). The Court found that the Statute of Frauds barred recovery because the 2015 EULA was unsigned and not capable of performance within one year. Slip Op. at *5-*6. The Court noted that, by its terms, the 2015 EULA would remain in effect for a minimum of three years, at which point Sterling could terminate by providing ASV with ninety days written notice. Sterling had no option to terminate the 2015 EULA as a matter of right prior to October 1, 2017 – a point that ASV conceded. Id. at *5. Thus, said the Court, “Sterling had no ability to perform the 2015 EULA within a year of its creation.” Id. The Court rejected ASV’s argument that Hudson had manifested its acceptance of the 2015 EULA by acknowledging receipt of the 2015 EULA and through its subsequent performance by continuing to use the ASV software. The Court explained that “this alleged mode of acceptance insufficient to remove the 2015 EULA from the Statute of Frauds unless ‘there a note, memorandum or other writing sufficient to indicate that a contract ha been made, signed by the party against whom enforcement is sought ….’ or the parties’ partial performance ‘unequivocally referable’ to the 2015 EULA.” Id. at *6 (citing GOL § 5-701 (b) (3) (d) and Anostario v. Vicinanzo , 59 N.Y.2d 662, 664 (1983)). A. Insufficient Written Evidence of a Contract ASV argued that emails exchanged between the parties evidenced Hudson’s acceptance of the 2015 EULA. The Court found the argument unavailing. One of the emails relied upon by ASV, noted the Court, was sent “prior to any alleged acceptance of the 2015 EULA.” Slip Op. at *6. Therefore, there could be no acceptance of the 2015 EULA by this email. Id. A string of emails sent days after the alleged agreement in January 2015 was entered did “not convey Hudson’s clear agreement or acquiescence to the 2015 EULA,” noted the Court. Id. Although the law permits the courts to piece together writings (such as emails) to determine whether the Statute of Frauds applies, they must clearly evidence an agreement to be bound by the terms in the writings. Kelly v. P & G Ventures 1, LLC , 148 A.D.3d 1002, 1003 (2d Dept. 2017) (citations omitted). The Court found that the emails “merely communicated” an intention to send the 2015 EULA up the chain for review. Slip Op. at *7. The Court further found that the emails did not satisfy the requirements of the Statute of Frauds because their content did not “meet all the requirements of the governing statute.” Id. (citing Naldi v. Grunberg , 80 A.D.3d 1, 3 (1st Dept. 2010). “ t least one writing, the one establishing a contractual relationship between the parties, must bear the signature of the party to be charged ….” Id. (quoting Scheck v. Francis , 26 N.Y.2d 466, 471 (1970)). The Court held that the automated signature block of the employee at Hudson did not meet this standard because it was not made “with intent to authenticate the information therein.” Id. (quoting Scheck , 26 N.Y.2d at 471). See also Parma Tile Mosaic & Marble Co. v. Estate of Shoff , 87 N.Y.2d 524, 526-28 (1996). B. No Unequivocal Partial Performance ASV argued that an agreement, although unsigned, may be enforceable when the parties’ conduct or performance demonstrates objective evidence that the parties reached a binding agreement. See Flores v. Lower E. Side Serv. Ctr. , 4 N.Y.3d 363, 365-66 (2005) (written but unsigned agreement is enforceable where general contractor has performed work and received payment in accordance with alleged agreement); Brown Bros. Elec. Contractors, Inc. v. Beam Constr. Corp. , 41 N.Y.2d 397, 398-99 (1977) (parties’ “course of conduct” established the existence of a binding agreement). ASV asserted that Hudson, and therefore, Sterling, accepted the 2015 EULA through their subsequent performance, and that the parties conducted themselves in a manner that amounted to unequivocal performance under the 2015 EULA. Under the Statute of Frauds, “ he doctrine of part performance may be invoked only if plaintiff’s actions can be characterized as unequivocally referable to the agreement alleged.” Anostario , 59 N.Y.2d at 664. “ he actions alone must be ‘unintelligible or at least extraordinary,’ explainable only with reference to the oral agreement.” Id. (citations omitted). The Court found that “neither parties’ alleged performance unequivocally referable to the 2015 EULA because it be alternatively explained through continued adherence to the terms of the 2006 EULA.” Slip Op. at *8. ASV claimed that installing the 310/312 custom module to Sterling’s existing signature verification and check fraud software was evidence of its performance under the 2015 EULA. The Court rejected the argument because the 2006 EULA obligated ASV to provide Sterling with “updates and modifications to the Software” and offered “full product upgrades and support assuring ASV customers will always have the best available technology.” Id. at *8-*9. Further, observed the Court, “ ny customization or modification of the Software and any other services not specifically provided for in th Agreement … shall be deemed consulting services for which Licensee agrees to pay Licensor in accordance with Licensor’s then current hourly rates.” Id. at *9. Therefore, concluded the Court, “ASV’s installation of the 310/312 custom module not ‘explainable only with reference to the <2015 eula> ’ because the performance logically be referenced to the 2006 EULA.” Id. (quoting Anostario , 59 N.Y.2d at 664). 2. Explicit Intent to be Bound Only by a Written and Signed Document The Court also found that any oral agreement surrounding the 2015 EULA would be void due to “Sterling’s explicit and expressed intent to not be bound to any agreement absent a written and signed document.” Id. at *10. The Court explained that “ he 2006 EULA state that the document comprise the ‘entire agreement’ and only be ‘amended by a writing executed by both Licensee and Licensor.’” Id. Such language, said the Court, was “documentary evidence of Sterling’s clear intent not to be bound by the terms of any unsigned agreement.” Id. (citing Scheck , 26 N.Y.2d at 469-70). “Courts should give ‘considerable weight’ to explicit statements that a party does not intend or desire to be bound by oral agreements,” noted the Court. Id. (quoting R. G. Group, Inc. v Hom & Hardart Co. , 751 F.2d 69, 75 (2d Cir. 1984). Takeaway In a prior post (“Does An Agreement Really Have To Be In Writing?”), we said that “ n a perfect world, all contracts would be reduced to writing and signed by both parties, so that courts could determine the rights and obligations of the parties to the agreement.” Here . “Unfortunately, we do not live in a perfect world. Id. Therefore, it is always best for people to reduce their agreements to a writing that is signed by all involved parties. If they do not have a written agreement, it does not necessarily mean that they cannot enforce their agreement, but it does mean that there are many impediments to overcome to convince a court to enforce it. AVS highlights those impediments.

It is not uncommon for plaintiffs to assert breach of contract and fraud in the same action. It is also not uncommon for the fraud claim to be dismissed as duplicative of the contract claim. Indeed, the reporters are brimming with cases in which the fraud claim is dismissed because it is nothing more than a breach of contract claim dressed up in the language of fraud. The cases we examine today, East Coast Int’l Tire Group, Inc. v. New York Tire Factory, Inc. , 2020 N.Y. Slip Op. 03769 (2d Dept. July 8, 2020) ( here ), and Rosenthal & Rosenthal of California, Inc. v. Malka , 2020 N.Y. Slip Op. 32165(U) (Sup. Ct., N.Y. County June 30, 2020) ( here ), are no different. Quick Primer of the Law “A cause of action for fraud does not arise when the only fraud charged relates to a breach of contract.” Krantz v. Chateau Stores of Can. Ltd. , 256 A.D.2d 186, 187 (1st Dept. 1998) (citations omitted).  “To plead a viable cause of action for fraud arising out of a contractual relationship, the plaintiff must allege a breach of duty which is collateral or extraneous to the contract between the parties.” Id. (citations and quotation marks omitted). One way to satisfy this requirement is to allege a present intent to deceive. In doing so, however, the plaintiff cannot allege “a mere misrepresentation of an intention to perform under the contract.” WIT Holding Corp. v. Klein , 282 A.D.2d 527, 528 (2d Dept. 2001) (citation omitted); see also Gorman v. Fowkes , 97 A.D.3d 726, 727 (2d Dept. 2012). Another way to satisfy the requirement is to allege a misrepresentation of material fact, which is collateral to the contract and serves as an inducement for the contract. Id. at 528 (citation omitted).  East Coast Int’l Tire Group, Inc. v. New York Tire Factory, Inc. East Coast International Tire involved an alleged failure to pay for goods. Plaintiff commenced the action against New York Tire Factory, Inc. (“Tire Factory”), and its president, Richard A. Entel (“Entel), alleging that Tire Factory had purchased a substantial number of tires from plaintiff, and failed to pay the agreed-upon price. In its first cause of action, plaintiff alleged breach of contract by Tire Factory. In its third cause of action, plaintiff alleged that Entel falsely represented that Tire Factory had sufficient funds to pay for the tires, and that he later issued checks on behalf of Tire Factory for which he subsequently stopped payment. After an apparent bankruptcy stay, plaintiff moved to restore the action to the court’s calendar. Defendants cross-moved, inter alia , pursuant to CPLR § 3211(a)(7) and CPLR § 3016(b), to dismiss the third cause of action. The motion court, among other things, granted defendants’ cross-motion to dismiss the fraud cause of action. Plaintiff appealed. The Appellate Division, Second Department affirmed, holding that “the third cause of action did not allege any misrepresentation of present fact which induced the plaintiff to enter into the contract …, but only a misrepresentation of a future intent or ability to perform under the contract.” Slip Op. at *1-*2 (citations omitted). Plaintiff alleged that “Entel used his domination and control over to defraud the Plaintiff, by accepting delivery of the goods in question and by refusing to pay for them, thereby causing Plaintiff to sustain injury and monetary damages.” ( See Compl. ¶ 36.) Rosenthal & Rosenthal of California, Inc. v. Malka Rosenthal arose from a factoring agreement (the “Agreement”) between plaintiff and non-party Halston Operating Company, LLC (“HOC”) pursuant to which HOC assigned its receivables to plaintiff in exchange for cash.  HOC promised that the assigned receivables were “bona fide, existing and enforceable obligations of Customers arising out of sales or services … ,  free and clear of all security interests, liens, claims and Disputes whatsoever other than Permitted Liens.” HOC further warranted that “to knowledge the Customer will accept the Inventory and/or such services without any offset or counterclaim.”  In early 2017, HOC and a related entity defaulted on a loan given by Bank Hapoalim, B.M. (the “Bank”). Plaintiff alleged that to restructure the debt and generate a payment stream, defendant, among other things, structured a new supply arrangement of product to retailers. Under the arrangement, HOC assumed risks originally borne by the retailers by guaranteeing “minimum gross margins” for the sale of its products. Apart from giving retailers “guaranteed minimum margins and return rights,” the restructuring also increased royalty payments that were “timed to the payments” in connection with repaying the debt. Plaintiff alleged that the new structure was “driven solely by a desire” for defendant “to enhance his financial interests” in other related entities by agreeing “to do their bidding” by satisfying the Bank debt. Plaintiff alleged that the new structure breached the Agreement because customers could claim deductions if the minimum profit margins were not met even after the receivables had been assigned to plaintiff.  According to plaintiff, a related entity developed “a new secret plan” under which HOC would keep borrowing from plaintiff by falsely representing there were no claims or offsets on the receivables. Defendant allegedly colluded in the “scheme” by “arrang for customers to defer their chargebacks” to ensure that plaintiff would remain “in the dark about the extent of the margin guarantees” and customer claims while advancing further funds for the misleadingly valued receivables. Plaintiff alleged that defendant falsely told plaintiff that there were no deductions on the receivables. Plaintiff asserted that defendant directed a non-party, Hudson’s Bay, to defer a claim for a $2 million deduction to perpetuate the “scheme” against plaintiff. In late 2018, defendant advised plaintiff he had resigned from HOC and that HOC had entered into an assignment for the benefit of creditors. Plaintiff attempted to liquidate the collateral but faced “disaster ” “customer dilutions in the range of 75% from one … major customer” ( i.e. , Hudson’s) and other offsets resulting in “millions of dollars” in losses. In sum, plaintiff alleged it incurred more than $10 million in damages as a result of HOC’s wrongdoing. Defendant moved to dismiss the complaint. With regard to the fraud the claim, the Court granted the motion. Defendant argued that plaintiff’s fraud claim was simply a “repackaged claim that HOC breached the Agreement.” Slip Op. at *8. The Court agreed, finding that “Plaintiff not allege facts suggesting that Defendant had an independent duty to provide information regarding HOC’s financial position or to ensure HOCs performance under the Agreement.” Accordingly, the Court dismissed the fraud claim because plaintiff failed to allege “a breach of duty collateral or extraneous to the contract between the parties.” Krantz , 256 A.D.2d at 187.  Takeaway New York courts do not allow a fraud claim to survive a motion to dismiss when the claim arises from an alleged breach of contract or failure to perform an obligation under the contract. Indeed, courts routinely dismiss a fraud claim where “ he existence of a valid and enforceable written contract govern a particular subject matter” and the recovery sought arises out of the same facts and circumstances. Clark-Fitzpatrick v. Long Is. , 70 N.Y.2d 382 (1987). However, where “a legal duty independent of the contract itself has been violated<,> ” or where the misrepresentation is “collateral or extraneous to the terms of the parties’ agreement,” a fraud claim can stand side-by-side with “a simple breach of contract” claim. Dormitory Auth. v. Samson Constr. Co. , 30 N.Y.3d 704 (2018) (citation omitted). Today’s examination of East Coast International Tire and Rosenthal highlights the difficulty plaintiffs often have identifying a legal duty independent of the contract at issue. As discussed above, in both cases, the plaintiffs were unable to satisfy this standard.

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

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

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

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

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

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

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