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By: Jeffrey M. Haber In Seitz v. Marcum LLP , 2024 N.Y. Slip Op. 51141(U) (Sup. Ct., N.Y. County Aug. 30, 2024) ( here ), Justice Robert R. Reed of the New York County Commercial Division addressed the doctrine of in pari delicto , which “bars a party that has been injured as a result of its own intentional wrongdoing from recovering for those injuries from another party whose equal or lesser fault contributed to the loss.” The doctrine is available to a defendant as an aff

By: Jeffrey M. Haber In Hydraulic IP Holdings, LLC v. Tan , 2024 N.Y. Slip Op. 32930(U) (Sup. Ct., N.Y. County Aug. 16, 2024 ( here ), the court was asked to hold certain successor entities liable for the unsatisfied judgment (“Judgment”) issued by the motion court in plaintiff’s favor and against non-party Grace Apparel LLC (“Grace”). As discussed below, the motion court declined to grant summary judgment in either party’s favor, holding there were issues of fact as to whe

By: Jeffrey M. Haber Often, in the pre-action investigation of a client’s claims, it becomes evident that discovery would materially aid the client in framing his/her complaint or in learning the identities of the persons against whom the complaint should be brought. Obtaining pre-action discovery from the court, however, is not easy. As discussed below, the plaintiff must demonstrate the existence of a meritorious cause of action against the proposed defendant and the materi

By: Jeffrey M. Haber In DirecTV, LLC v. Nexstar Broadcasting, Inc. , 2024 N.Y. Slip Op. 04225 (1st Dept. Aug. 15, 2024) ( here ), the Appellate Division, First Department considered the viability of a fraudulent inducement claim and whether the plaintiff satisfied the elements of the claim. As discussed below, the Court held that the motion court “should have granted summary judgment in plaintiff’s favor on” this claim. DirecTV arose out of a retransmission consent agreement

By: Jonathan H. Freiberger Sometimes this BLOG takes an in-depth look at recently decided cases from New York’s appellate courts; other times it simply reports on cases with an interesting holding. Today’s BLOG reflects the latter. Bank of New York Mellon v. Levinson , is a mortgage foreclosure action decided by the Appellate Division, Second Department, on August 14, 2024. The defendant/borrower in Bank of New York , borrowed $1.2 million from the lender and secured his repa

By:  Jeffrey Haber A multi-level marketing program is a relative of pyramid scheme. “ pyramid scheme is an illegal investment scam based on a hierarchical setup.”  In the classic pyramid scheme, “participants attempt to make money solely by recruiting new participants, usually where: he promoter promises a high return in a short period of time; o genuine product or service is actually sold; and he primary emphasis is on recruiting new participants.” Promoters of a pyramid sc

By: Jeffrey M. Haber As readers of this Blog know, New York has a “long and strong public policy favoring arbitration … as a means of conserving the time and resources of the courts and the contracting parties.” For this reason, “New York courts interfere as little as possible with the freedom of consenting parties to submit disputes to arbitration.” The foregoing principle was at issue in McWhinney-St. Louis v. Cliftonlarsonallen LLP , 2024 N.Y. Slip Op 32747(U) (Sup. Ct.,

By Jonathan H. Freiberger As noted in prior BLOG articles, specific performance is an equitable remedy used to compel a party to perform under a contract. McGinnis v. Cowhey , 24 A.D.3d 629 (2 nd Dep’t 2005). The remedy is frequently used to enforce rights under a real estate contract, where monetary damages are typically insufficient to make the non-breaching party whole due to the uniqueness of real property. EMF General Contracting Corp. v. Bisbee , 6 A.D.3d 45 (1 st Dep

By: Jeffrey M. Haber 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 of emotional distress action on collateral estoppel grounds. As discussed below, the Court found that, among other things, the claims at issue were not identical to those in the prior litigation and were not otherwise actively lit