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Stenographic services are an important part of any litigation. After all, deposition and trial testimony must be recorded, as they are part of the record. Below, this Blog examines the account stated doctrine and the statute of frauds applicable to a promise The Doctrine of Account Stated The common-law doctrine of account stated is rooted in medieval England The doctrine “is widely accepted, not only in New York, but in most jurisdictions….” Id .

One exception is the continuing wrong doctrine. Under the doctrine, “where there is a series of continuing wrongs,” the statute of limitations will be If the continuing wrong doctrine applies, it “will save all claims for recovery of damages but only to The application of the continuing wrong doctrine must “be predicated on continuing unlawful acts and Thus, the doctrine is inapplicable where there is one tortious act and “continuing consequential damages

App’x 857 (2d Cir. 2018) (summary order) (dismissing tort claims as barred by the economic loss doctrine Under the economic loss doctrine, “ plaintiff cannot seek damages by bringing a tort claim when the Supp. 3d 377, 399 (S.D.N.Y. 2017) (“ Wells Fargo I ”) (quoting Royal Park Invs. SA/NV v. District of New York that found the economic loss doctrine to apply to tort claims asserted against However, the Court dismissed the claim “because of the economic loss doctrine.” Id .

The Statute of Limitations and The Continuing Wrong Doctrine  The statute of limitations for a fraudulent In opposition, Plaintiff contended that the continuing wrong doctrine applied to toll the statute of The application of the continuing wrong doctrine must “be predicated on continuing unlawful acts and The doctrine is inapplicable where there is one tortious act and “continuing consequential damages” that The Court explained that “ lthough the continuing wrong doctrine must be narrowly applied, the Complaint

The Privity or Near Privity Doctrine In dealing with liability for the tortious acts of persons not in This principle came to be known as the “Ultramares doctrine.” In Credit Alliance , the Court revisited and elaborated upon the Ultramares doctrine. The Court went on to observe that while “these criteria permit some flexibility in the doctrine” they Finally, in William Iselin & Co. , the Court applied the Ultramares doctrine to affirm the grant of

The doctrine of “Corporation by Estoppel” can be used to prevent a defendant from avoiding its obligations Nonetheless, the Court, in applying the doctrine of “corporation by estoppel,” held that: Defendant the Supreme Court of the State of New York, Second Department, applied the “corporation by estoppel” doctrine recognized that “a corporation may be deemed to exist and possess the capacity to contract pursuant to the doctrine in effect, for summary judgment dismissing the amended complaint on ground ” and, in applying the doctrine

Haber Previously, this Blog examined the doctrine of res judicata ( here , here , here and  here ). Under the doctrine, a party may not litigate a claim where a judgment on the merits exists from a prior The rationale underlying the doctrine is that a party who has been given a full and fair opportunity Saifus Sayeed Sunny and Shirin Akhter, as husband and wife, purchased a residential property in Ozone Park The Court held that the action was barred under the res judicata doctrine.

In this instance, the de facto merger doctrine. Under the doctrine, “ corporation may be held liable for the torts of its predecessor if (1) it expressly Courts apply the de facto merger doctrine “when the acquiring corporation has not purchased another Park Corp. , 181 A.D.2d 243, 245-246 (4th Dept. 1992). After all, the point of the de facto merger doctrine is to elevate substance over form.

MIP Acquisition”), is the owner of the retail and garage portions of certain real property located on Park Defendant, 432 Park Properties Inc., together with defendants MIP Acquisition and NY Medical, hold an argument that defendants prevented the condition precedent from occurring.[5] Under New York’s prevention doctrine upon which his own liability depends, he cannot take advantage of the failure.”[6] The prevention doctrine Macklowe further shows that the prevention doctrine is narrowly applied.

Readers of this Blog know that, as a general matter, New York courts will not permit a fraudulent inducement claim to survive a motion to dismiss when the claim arises from a breach of contract. Indeed, courts routinely dismiss a fraudulent inducement 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 fraudulent inducement 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). See also McKernin v. Fanny Farmer Candy Shops, Inc. , 176 A.D.2d 233, 234 (2d Dept. 1991). What constitutes “a legal duty independent of a contract” is not a question easily answered.  Cronos Group Ltd. v. XComIP, LLC , 156 A.D.3d 54, 56 (1st Dept. 2017) (referring to the question as a “recurring” one). In trying to answer the question, the courts make the distinction between a misrepresentation of intention and a misrepresentation of present fact. Id . at 63. See also Demetre v. HMS Holdings Corp. , 127 A.D.3d 493, 494 (1st Dept. 2015) (common law fraud is duplicative of breach of contract where the only misrepresentation alleged concerns an “intent to perform the contractual obligations at the time they were made.”). The former will result in dismissal, while the latter will not. Gosmile, Inc. v. Levine , 81 A.D.3d 77 (1st Dept. 2010). In Did-it.com, LLC v. Halo Group, Inc. , 2019 N.Y. Slip Op. 05644 (July 17, 2019) ( here ), the Appellate Division, Second Department, reversed the dismissal of a fraudulent inducement claim, holding that the claim contained “misrepresentations of present fact that were collateral to the” contract before it and, therefore, “was not duplicative of the breach of contract cause of action.” Slip Op. at *1 and *2.   Did-it.com arose from the sale of the Halo Group, Inc.’s (“Halo”) assets to Did-it.com, LLC (“Did-it”). In May 2017, Did-it and Halo entered into an asset purchase agreement (the, “APA”), pursuant to which plaintiff agreed to purchase all of Halo’s assets. The APA contained a number of representations and warranties, including that: 1) the 2016 financial statements provided by Halo to Did-it were accurate and complete; and 2) there were no adverse changes or events subsequent to the preparation of Halo’s 2016 financial statements that would result in, inter alia , a loss of customers or a reduction in revenues. Did-it claimed that these, and other representations, induced it to pay $1.5 million to purchase Halo’s assets. According to the complaint, following the closing of the transaction (“Closing”), Did-it learned that the assets (“Assets”) it had purchased from Halo were worth significantly less than what was represented, bargained for, and otherwise agreed upon. The client accounts purchased from Halo generated approximately $5,000 in revenues for Did-it during the first month after the Closing, although Halo’s 2016 financials reflected average monthly revenues in excess of $300,000. Did-it also learned after the Closing that all but one of Halo’s customers listed in defendants’ disclosures had ceased doing business with the company. Defendants also failed to turn over all of the Assets to Did-it as required under the APA. In June 2017, plaintiff commenced the action. In an amended complaint, plaintiff asserted six causes of action, including the first cause of action, alleging fraudulent inducement, and the third cause of action, alleging breach of contract. Prior to answering, defendants moved pursuant to CPLR 3211(a) to dismiss the amended complaint. The Supreme Court, inter alia , granted that branch of the motion which was to dismiss the first cause of action. Plaintiff appealed. In seeking dismissal, defendants argued, among other things, that Did-it failed to allege any facts to support its claim that defendants misrepresented the company’s finances, and failed to allege any facts that the financial statements were false and exaggerated or that a material adverse change occurred that Halo failed to disclose. Defendants maintained that Did-it merely made conclusory allegations that were contradicted by the actual facts and the express terms of the APA. Defendants also contended that Did-it’s fraud claim was duplicative of its breach of contract claim because it was based on representations in the APA; namely, that the 2016 financial statements were accurate and complete and there were no adverse changes or events subsequent to the preparation of the financial statements that would result in, inter alia , a loss of customers or a reduction of revenues. Thus, the false statements alleged in the amended complaint were not, and could not be, collateral or extraneous to the parties’ agreement. Plaintiff opposed the motion arguing, inter alia , that it stated a viable claim for fraudulent inducement by alleging that defendants made misrepresentations pursuant to the APA by providing 2016 financial statements that reflected a healthy business, providing a warranty that the financial statements were accurate and not misleading, and providing a warranty that no adverse changes had occurred since the financials were prepared. Plaintiff argued that these allegations constituted misrepresentations of present fact that were collateral to the APA. As noted, the Supreme Court dismissed the first cause of action, finding that the fraudulent inducement claim was duplicative of the breach of contract claim. The court held that the representations cited by plaintiff were “material terms of the APA” and, therefore, “duplicative of express representations made in the APA” that plaintiff claimed defendants had breached. On appeal, the Second Department reversed. In so holding, the Court found that plaintiff “allege misrepresentations of present fact that were collateral to the APA” and that those “misrepresentations induced the plaintiff to enter into the APA.” Slip Op. at *2. Consequently, said the Court, the Supreme Court “should have denied that branch of the defendants’ motion which was to dismiss the first cause of action.” Id . Takeaway Unfortunately, the Court did not provide an explanation for its holding. The absence of such an explanation leaves one trying to determine why the fraudulent inducement claim differed from the breach of the contract claim. In the fraud scenario, plaintiff must prove that the financial statements were not accurate. In the contract scenario, plaintiff must prove that the representation and warranty concerning the financial statements were breached – that is, that the financial statements were not accurate. Under either claim, therefore, the accuracy of the financial statements is at issue. Perhaps the foundational underpinning of the Court’s ruling is based on the principle that “ warranty is not a promise of performance, but a statement of present fact.” First Bank of Ams. v. Motor Car Funding , 257 A.D.2d 287, 292 (1st Dept. 1999). If so, then it stands to reason that defendants’ representation and warranty concerning the financial statements was collateral to the APA. Regardless of the reason for the decision, Did-it.com stands for the proposition that a fraudulent inducement claim and a breach of contract claim can stand side-by-side when the alleged false statement is collateral to the contract at issue and induces the plaintiff to enter into the agreement.

But what is the law of the case doctrine? And, when does it apply? The law of the case doctrine is part of a larger group of related concepts – i.e. , res judicata (claim Like res judicata and collateral estoppel, the law of the case doctrine contemplates that the parties By contrast, the law of the case doctrine is not found in any statute. The doctrine does not, however, apply upon “a showing of subsequent evidence or change of law.”

In commercial matters, choice of law contract provisions and doctrines, such as the internal affairs doctrine, typically identify the law that should apply to the parties’ dispute. Royal Park Invs. SA/NV v. Morgan Stanley , 165 A.D.3d 460, 461 (1st Dept. 2018). Defendants are TMO VI LLC, Icon Intermediate Holdings, LLC, TMO LLC, Icon Parking 3, LLC, Icon Parking Holdings, LLC, Icon Parking Management, LLC, Icon Parking Services, LLC, and Icon Parking Systems, LLC