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CPLR

Freiberger Haber LLP

The Second Department Reminds Litigants To Follow Requisite Procedures Before Seeking Discovery Sanctions

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Discovery (or disclosure) in litigation, which is governed in New York State practice by Article 31 of the CPLR, is the mechanism by which litigants obtain facts and information from other parties and non-parties to support...more

Farrell Fritz, P.C.

From “Dissipation” to Denial: Why Threats of Lost Funds Are Not Enough for an Injunction

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Under CPLR 7502(c), a court in “the county in which an arbitration is pending…[is permitted to] entertain an application…for a preliminary injunction in connection with an arbitration that is pending or that is to be...more

Freiberger Haber LLP

Collateral Estoppel Held Not To Bar Later-Filed Malpractice Action

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In Villaver v. Paglinawan, 2024 N.Y. Slip Op. 04159 (2d Dept. Aug. 7, 2024) (here), the Appellate Division, Second Department reversed the dismissal of a legal malpractice, breach of fiduciary duty, and intentional infliction...more

Freiberger Haber LLP

Problems Related to “Short” Return Dates on Notices of Motion for Summary Judgment in Lieu of Complaint Pursuant to CPLR 3213

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CPLR 3213, which is a procedural device permitting a plaintiff, under certain circumstances, to obtain summary relief at the very beginning of a lawsuit, provides, in pertinent part: When an action is based upon an...more

Freiberger Haber LLP

The Relation-Back Doctrine Under CPLR 203(c) and (f)

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It is well-settled that leave to amend a pleading is to be freely granted. Leave may be denied, however, if the proposed amendment is palpably insufficient or patently devoid of merit, or if it would cause undue prejudice to...more

Farrell Fritz, P.C.

Obtaining Discovery Across International Borders: Convenience Is Not the Standard

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Sections 3102 and 3108 of the CPLR outline methods for conducting discovery, including discovery “outside” or “without” the state.  But what about demands for discovery and inspection of documents located outside the country?...more

Cadwalader, Wickersham & Taft LLP

Stay Just a Little Bit Longer: Not Jackson Browne but the Statute of Limitations

The Second Department recently held  in Trento 67, LLC v. OneWest Bank, N.A., et. al  that the FHA COVID-19 moratorium constituted a stay of foreclosures for federally-backed mortgages, and thus tolled the statute of...more

Freiberger Haber LLP

Renewal Judgments Under CPLR 5014 in the Face of Defective Service of Process

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By Jonathan H. Freiberger Today’s article relates to renewal judgments under CPLR 5014 in the face of potentially defective service of process. This BLOG has previously addressed CPLR 5014...more

Epstein Becker & Green

“Unsworn” Attorney Affirmations: Overlooked Side Effect of Changes to CPLR 2106

By now, most New York practitioners are aware (or at least have heard) of the recent changes to CPLR 2106, which was amended as of January 1, 2024 to allow “any person” to submit an affirmation “in lieu of and with the same...more

Farrell Fritz, P.C.

Oral Joint Ventures: The Wild West of Business Associations

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The lion’s share of cases we write about on New York Business Divorce involve consummated business relationships where the warring parties have clearly chosen the particular entity form governing their relations, whether it...more

Freiberger Haber LLP

Fraud Notes: Two Cases and The Examination of Scienter

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To state a cause of action for fraud, a plaintiff must allege “a material misrepresentation of a fact, knowledge of its falsity, an intent to induce reliance, justifiable reliance by the plaintiff and damages.” The...more

Farrell Fritz, P.C.

Limo Company Shareholders Can’t Hitch a Ride in Derivative Litigation

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Closely-held business entities come in all shapes and sizes. By definition, under Partnership Law § 10, it takes “two or more” owners to form a general partnership. But corporations and LLCs have no such impediment, ranging...more

Freiberger Haber LLP

Personal Jurisdiction and the Vacatur of Defaults

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By Jonathan H. Freiberger There are two “components and constitutional predicates of personal jurisdiction.”  Keane v. Kamin, 94 N.Y.2d 263, 265 (1999). “One component involves service of process, which implicates due process...more

Cadwalader, Wickersham & Taft LLP

Ex Parte Appointment of a Receiver Confirmed

The New York County Supreme Court recently held that in the event of foreclosure, a receiver can be appointed, regardless of necessity, when the parties have contracted for such appointment. 24 West 57 APF LLC (“Defendant”)...more

Farrell Fritz, P.C.

Affirmation in Lieu of an Affidavit, Now “with the Same Force and Effect”

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As of January 1, 2024, the amended CPLR 2106 concerning affirmations provides that - [t]he statement of any person wherever made, subscribed and affirmed by that person to be true under the penalties of perjury, may be...more

Farrell Fritz, P.C.

Injunction Junction, What’s Your Function?

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Commercial litigants often seek the provisional and equitable remedy of a preliminary injunction under Article 63 of the CPLR to protect the client’s rights that are difficult to monetize and quantify. The relief sought...more

Farrell Fritz, P.C.

Don’t Forget the Details: How Conclusory Pleadings Can Thwart Nonparty Disclosure

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Nonparty subpoenas are a useful discovery tool in commercial disputes. Particularly when the dispute involves access to or control over funds on deposit with a financial institution, the institution’s account statements, and...more

Farrell Fritz, P.C.

Altering a Confession of Judgment? Think Again!

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A confession of judgment has often been viewed as an important tool in settling a litigation or finalizing a transaction.  In 2019, the New York State Legislature made some significant amendments to the Confession of Judgment...more

Farrell Fritz, P.C.

No Deceit, No Defeat: Commercial Division Enforces Broad General Release

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A recent decision from Justice Fidel Gomez of the Bronx County Commercial Division, 1125 Morris Ave. Realty LLC v Title Issues Agency LLC, reminds us to closely review the language of general releases as New York courts...more

Epstein Becker & Green

New York’s Highest Court Clarifies Law On “Relation Back” and Statute of Limitations

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The statute of limitations is a powerful threshold defense for defendants in civil litigation.  Article 2 of New York’s Civil Practice Law and Rules (“CPLR”) and other New York statutory provisions set forth deadlines by...more

Farrell Fritz, P.C.

Parallel Business and Matrimonial Divorce Proceedings

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Parallel business divorce proceedings in the same or different courts alleging overlapping or duplicative claims are common. When it occurs, judges must often determine whether to dispose of one so the other may proceed...more

Freiberger Haber LLP

Settlement Agreement Found To Be an Instrument for The Payment of Money Only Sufficient to Grant Summary Judgment In Lieu of...

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In past articles, we have examined a motion under CPLR § 3213... CPLR § 3213 is a procedural mechanism that allows a party to make a motion for summary judgment before filing a complaint in actions based upon “an instrument...more

White and Williams LLP

New York Civil Practice Will Allow Unnotarized Affirmations Instead Of Affidavits

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Notarized affidavits will not be required for court submissions starting in the new year. As of January 1, 2024, New York CPLR Rule 2106 is amended to permit that an affirmed statement can be used in a New York action...more

Freiberger Haber LLP

Pleading With Particularity: Defamation Causes of Action

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As readers of this Blog know, we often write about the pleading requirements under the Civil Practice Law and Rules (“CPLR”). In that regard, many of our articles involve cases in which CPLR 3016(b) is at issue – the...more

Freiberger Haber LLP

Second Department Dismisses Action for Specific Performance Because Contractual Conditions Were Not Satisfied

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Many times, remedies for the breach of a contract other than monetary damages are necessary to make a plaintiff whole...more

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