By: Jeffrey M. Haber Tasty Minstrel Games LLC (“TMG”) is a company, located in Utah, that produces board games. 1 The best-known game released by TMG is Yokohama, a board game that takes place in the Meiji era of Japanese history.  Another game that TMG produces is “Ponzi Scheme”. In Ponzi Scheme, players try to trick each other into funding fraudulent investments with the promise of extremely high returns. Like a real Ponzi scheme, the scheme works as long as new investors

By Jonathan H. Freiberger As discussed previously in this Blog < here =">here</a>"> , the first question asked by a potential client when consulting about a new litigation matter is “can we sue them for our legal fees.”  Clients are often dismayed to learn that attorney’s fees are not generally recoverable in litigation under the “American Rule,” because “ n the United States, the prevailing litigant is ordinarily not entitled to collect a reasonable attorney fee from the los

By: Jeffrey Haber In prior articles, we have talked about the importance of saying what you mean in a contract. ( E.g. , here and here .) When contracts are clear and unambiguous, the meaning ascribed to the words used therein will be enforced because they reflect the intent of the parties. Such was the case in Padron v. Granite Broadway Dev. LLC , 2022 N.Y. Slip Op. 05798 (1st Dept. Oct. 18, 2022). In Padron , plaintiff claimed that he sustained injuries when he slipped and

By: Jeffrey M. Haber The voluntary payment doctrine bars recovery of payments voluntarily made with full knowledge of the facts, and in the absence of fraud or material mistake of fact or law. 1 Notably, there is a presumption that payments are voluntary. 2 Thus, to rebut the presumption, the plaintiff must show that he/she protested the payment. In order for a protest to be effective, it must be in writing and (with some exceptions, as discussed below) made at the time of

By Jonathan H. Freiberger Municipalities generally require home improvement contractors to be licensed to perform work.  “Where a home improvement contractor is not properly licensed in the municipality where the work is performed at the time the work is performed, the contractor forfeits the right to recover for the work performed, both under the contract and on a quantum meruit basis.”  Brightside Home Improvements, Inc. v. Northeast Home Improvement Services , 208 A.D.3d 4

By: Jeffrey M. Haber Since the early 20th century, a plaintiff alleging fraud in New York can recover only the actual pecuniary loss sustained as a result of a misrepresentation or omission, i.e. , the plaintiff’s out-of-pocket damages. 1 The damages recoverable under the out-of-pocket rule are intended to compensate plaintiffs for what they lost because of the fraud, not for what they might have gained. 2 The out-of-pocket rule was at issue in Danco Enters., LLC v. Livexliv

By Jonathan H. Freiberger Section 3101 of the CPLR provides that, in general, “there should be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof” by, inter alia , a party and its representatives.  “Material and necessary” is “to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues an

By: Jeffrey M. Haber In past articles, we have noted the importance of identifying the statements claimed to be false and misleading. In this regard, we talked about the need to plead the who, what, where, when and how of the alleged fraud. In other words, the plaintiff must allege the first paragraph of any newspaper story. The reason for such pleading is to satisfy the particularity requirement of CPLR § 3016(b).  Under CPLR § 3016(b), a plaintiff alleging fraud must provid

By Jonathan H. Freiberger For any number of reasons, a party asserting a claim or claims in a litigation may decide that it no loner wishes to pursue them.  In such a case, CPLR 3217 outlines the manner in which claims, depending on the stage of litigation, may be discontinued.  Among others, an action can be discontinued without a court order: “by serving upon all parties to the action a notice of discontinuance at any time before a responsive pleading is served or, if no r