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By: Jeffrey M. Haber In Kapitus Servicing, Inc. v. MS Health, Inc. , 221 A.D.3d 504, 505 (1st Dept. Nov. 21, 2023) ( here ), the Appellate Division, First Department addressed the issue of whether a foreign limited liability company had the capacity to sue in New York due to defects in the entity’s corporate filings. In answering the question, the Court looked at the parties involved and who was the real party in interest with regard to the allegations asserted in the action

By:  Jeffrey M. Haber In Rabinowitz v. Clarke , 2024 N.Y. Slip Op. 04627 ( st Dept. Sept. 26, 2024) ( here ), the Appellate Division, First Department addressed legal principles and causes of action that are familiar to readers of this Blog: fraud, the particularity requirement of CPLR 3016(b), the statute of limitations applicable to fraud claims, breach of contract and the duplication doctrine. We examine Rabinowitz below. Rabinowitz arose from plaintiff providing defenda

By: Jonathan H. Freiberger Partition is “the act or proceeding by which co-owners of property cause it to be divided into as many shares as there are owners, according to their interests therein, or if that cannot be equitably done, to be sold for the best obtainable price and the proceeds distributed according to the respective interests.” Chiang v. Chang , 137 A.D.2d 371, 373 (1 st Dep’t 1988) (citation and internal quotation marks omitted). Partition actions are governed

By: Jeffrey M. Haber During the Covid pandemic, conducting discovery, especially the taking of depositions, was challenging. Parties and their counsel had to adapt to the global health crisis. One adaptation was to remotely take depositions. As the courts opened and a new normalcy came into being, many parties and attorneys nevertheless continued to avail themselves of the remote deposition. In the Commercial Division of the Supreme Court of the State of New York, the option

By: Jeffrey M. Haber As a general matter, “ cross trade is a practice where buy and sell orders for the same asset are offset without recording the trade on the exchange.” An adviser that arranges for a security to be purchased from or sold to a client from its own account (which can include an affiliate of the advisor) – as opposed to purchasing or selling the security in the secondary markets – is engaging in a “principal trade.” An “agency cross trade” occurs when an advi

By: Jonathan H. Freiberger This BLOG has frequently addressed issues related to a party’s standing, in many different contexts, to commence litigation. In prior BLOG articles we have explained that in order to prosecute a lawsuit, the plaintiff must have standing to do so. Thus, we have noted that“ tanding involves a determination of whether the party seeking relief has a sufficiently cognizable stake in the outcome so as to cast the dispute in a form traditionally capable o

By: Jeffrey M. Haber In Murray v. Samsung Elecs. Am., Inc. , 2024 N.Y. Slip Op. 51257(U) (Sup. Ct. Monroe County Sept. 12, 2024) ( here ), the court was asked to consider the viability of claims for violations of General Business Law §§ 349 and 350, breach of contract, and breach of the warranty of merchantability. As discussed below, the motion court held that plaintiff failed to satisfy the elements of the claims asserted. In particular, the motion court held that plaintiff

By Jonathan H. Freiberger 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 their claims and/or defenses and otherwise prepare for trial. This BLOG has previously addressed discovery issues. See, e.g. , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">

By: Jeffrey M. Haber “Ensuring that potential whistleblowers can communicate directly with the Commission is a critical part of the SEC’s oversight mandate” On numerous occasions, we have written about the Securities and Exchange Commission’s (“SEC” or the “Commission”) whistleblower program and, in particular, the success of the program with respect to detecting and preventing violations of the federal securities laws. The success of the program depends, in large part, on th