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By: Jeffrey M. Haber A common theme in commercial litigation is the assertion of a breach of contract claim and a fraudulent inducement claim. A plaintiff claiming a breach of contract must show (1) the existence of a contract; (2) the plaintiff’s performance under that agreement; (3) the defendant’s breach of its obligations; and (4) damages resulting from the breach. One of the provisions parties often include in their contract is a merger clause. A merger clause is a provi

By Jonathan H. Freiberger Today’s Blog relates to extensions of time to serve a defendant under CPLR 306-b, a topic previously addressed by this Blog < HERE =">HERE</a>"> , < HERE =">HERE</a>"> and < HERE =">HERE</a>"> .  The background discussion in today’s Blog was taken from the linked prior Blogs. Under the present “commencement by filing” system, an action (or proceeding) (collectively, an “Action”) is commenced by filing (CPLR 304(a)) the initiatory paper(s) with the “

By:  Jeffrey M. Haber In many of the fraud cases that we examine, the plaintiff alleges that the defendant made an affirmative misrepresentation of fact upon which he/she relied. As we have often noted, fraud does not, however, always concern an affirmative statement. Sometimes a person can perpetrate a fraud through the omission of a material fact.  Where fraud by omission is claimed, the plaintiff must allege that the defendant had a duty to disclose the omitted fact. A du

By: Jeffrey M. Haber It is often said that a fiduciary owes the duties of care, loyalty and candor to the person with whom the fiduciary has a relationship. The duty of care requires the fiduciary to act as a reasonable and prudent person would act in a similar circumstance. The duty of loyalty requires the fiduciary to act in good faith and with the best interests of the person or entity with whom the fiduciary relationship exists. This means that the fiduciary must put the

By:  Jeffrey M. Haber Invoice fraud is a type of accounting fraud. Invoice fraud comes in many forms. For example, bill padding is a type of invoice fraud. In this type of fraud, the invoice is legitimate, but the payment request includes charges that are erroneous ( i.e. , they are inflated). Another type of invoice fraud involves duplicate charges. In this form of invoice fraud, the company will send the same invoice twice or list the same materials on more than one invoice

By Jonathan H. Freiberger This BLOG has written numerous times on issues related to contract formation.  See, e.g., < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> and < here =">here</a>"> .  Briefly stated, “ o create a binding contract, there must be a manifestation of mutual assent sufficiently definite to assure that the parties are truly in agreement with all material terms.”  Total Telcom Group Corp. v. Kendal on Hudson , 157

By: Jeffrey M. Haber In past articles, we have examined a motion under CPLR § 3213 ( see , e.g. , here , here , here , here , and here ). 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 for the payment of money only or a judgment.” The purpose of the statute “is to provide an accelerated procedure where liability for a certain sum is clearly established by the instru

By: Jeffrey M. Haber In today’s article, we examine Eva Chen Fine Jewelry, Inc. v. Recovery Racing IX, LLC , 2023 N.Y. Slip Op. 06511 (2d Dept. Dec. 20, 2023) ( here ), a case involving common law fraud, New York’s lemon law and Section 349 of New York’s General Business Law (“GBL”). In May 2014, plaintiff purchased a 2014 Maserati Ghibli from Maserati of Bergen County, an authorized Maserati dealership owned at the time by defendant Recovery Racing IX, LLC. The subject vehic

By Jonathan H. Freiberger This BLOG has written numerous times on statutes of limitation issues in mortgage foreclosure actions.  See, e.g., < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> , < here =">here</a>"> and < here =">here</a>"> . Briefly stated, and as has been stated previously in this BLOG, an action to foreclose a mortgage is governed by a six-year statute of limitations.  CPLR 213(4) .  See also ,