A common fact pattern for accounting fraud involves a public company recognizing revenues before they are realized or realizable and earned. Senior executives who engage in such fraud often do so to meet or beat analysts’ revenue and earnings estimates. Case after case shows that the pressure to satisfy Wall Street (that is, meet or beat analysts’ estimates) is strong. When a public company and its senior executives issue materially false and misleading statements about the c

This Blog, in “ The New York Court of Appeals Addresses the Issue of When a Mechanic’s Lien Can Be Placed on a Landlord’s Property By A Contractor Performing Work For A Tenant ,” quoting John P. Kane Co. v. Kinney , 12 Bedell 69 (1903), explained the purpose of a mechanic’s lien as follows: The object and purpose of mechanics’ lien law was to protect a person who, with the consent of the of the owner of real property, enhanced its value by furnishing materials or performing

It is not uncommon for parties settling an action to negotiate a confidentiality provision that prohibits them from disclosing the terms of their agreement. While there may be reasons for requiring non-disclosure (a topic for another day), courts often grapple with the circumstances under which disclosure is warranted. In Appleyard v. Tigges , 2019 N.Y. Slip Op. 29373 (Sup. Ct., Bronx County Dec. 6, 2019) ( here ), the Court declined to order the disclosure of a confidential

Judgments from sister states are enforceable in New York (and other sister states as well) by virtue of the “Full Faith and Credit” clause (article IV, section 1) of the Unites States Constitution (the “Clause”), which provides: Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and

In Benjamin v. Yeroushalmi , 2019 N.Y. Slip Op. 08647 (2d Dept. Dec. 4, 2019) ( here ), the Appellate Division, Second Department considered an appeal involving an action to recover damages for breach of contract, breach of fiduciary duty and fraudulent inducement. The action involved the acquisition and development of real properly located in Mineola and Brooklyn, New York. Beginning in 2007, the plaintiffs, Jim Benjamin (“Jim”), a real estate developer and investor, and his

Decision day in the Appellate Division, First Department involved several cases in which the Court addressed allegations of fraud or fraudulent inducement. Many of the cases focused on the elements of the claim, while others focused on the absence of particularity and the duplication of claims doctrine. We look at some of those cases in today’s post. Lerner v. Newmark & Co. Real Estate, Inc. In Lerner v. Newmark & Co. Real Estate, Inc. , 2019 N.Y. Slip Op. 08611 (1st Dept. D

It is not uncommon for a nonparty to a litigation to ask their attorney whether they must comply with a subpoena duly served upon them. As the court in Manswell v. Baptiste , 2019 N.Y. Slip Op. 29360 (Civ. Ct., Kings County, Nov. 20, 2019) ( here ), made clear, non-compliance is not an option. A subpoena is a document that commands a person to testify at a trial or deposition and/or to produce documents specifically demanded. A subpoena duces tecum differs from a subpoena ad

Statutes of limitations, which are a critical part of litigation, are designed to prevent litigants from sitting on their rights. A brief primer on New York’s Statute of Limitations, is contained within this Blog’s post, “ Second Department Finds No Issue of Fact as to Whether Defendant Should be Estopped From Asserting a Statute of Limitations Defense. ” Article 2 of New York’s CPLR addresses Statute of Limitations issues. The CPLR contains several provisions that toll or

Allegations of fraudulent inducement come in many contexts. Today, this Blog looks at a fraudulent inducement claim in the context of a merger. Kainz v. Bernstein , No. 19 Civ. 2499 (LLS) (S.D. N.Y. Nov. 13, 2019) ( here ). As this Blog has noted, one of the more challenging elements of a fraudulent inducement cause of action for a plaintiff to satisfy is the justifiable reliance element. To satisfy this element, a plaintiff must demonstrate that he/she exercised the means of

Economic duress, like duress, generally, provides an injured party with grounds to void a contract. Proof of the existence of economic duress requires a showing that one party to a contract has threatened to breach the agreement by withholding performance unless the other party agrees to some further demand. A party cannot be guilty of economic duress, however, for refusing to do that which it is not legally required to do or for threatening to do that which it is legally aut

Referees are frequently appointed by New York courts. The fees to which an appointed referee is entitled are generally governed by Rule 8003 of the New York Civil Practice Law and Rules (“CPLR”). CPLR 8003(a) presently provides that: A referee is entitled, for each day spent in the business of the reference, to three hundred fifty dollars unless a different compensation is fixed by the court or by the consent in writing of all parties not in default for failure to appear or

Referees are frequently appointed by New York courts. The fees to which an appointed referee is entitled are generally governed by Rule 8003 of the New York Civil Practice Law and Rules.

A partnership is an association of two or more persons to carry on as co-owners of a business for profit. Partnership Law § 10(1). Typically, a partnership is memorialized in some type of writing, such as a partnership agreement. When, as in Giffuni v. Towler , 2019 N.Y. Slip Op. 51824(U) (Sup. Ct., Suffolk County Nov. 15, 2019) ( here ), there is no written partnership agreement between the parties, the court must determine whether a partnership-in-fact existed from the cond

On November 15, 2019, the Appellate Division, Fourth Department, issued a decision involving the impact, if any, of a bankruptcy discharge on a subsequent foreclosure proceeding – an issue, the Court observed, it had not previously addressed. In Wilmington Sav. Fund Socy., FSB v. Fernandez , 2019 N.Y. Slip Op. 08290 (4th Dept. Nov. 15, 2019) ( here ), the Court held that, absent terms in the mortgage to the contrary, a discharge in bankruptcy does not automatically accelerate

Arbitration is an alternative form of dispute resolution where the parties voluntarily agree that a neutral, private person will resolve any legal disputes between them, instead of a judge or jury in a court of law. Rent-A-Ctr., W, Inc. v. Jackson , 561 U.S. 63, 67 (2010) (noting that “arbitration is a matter of contract”). In business and commercial transactions, arbitration is the preferred means of resolving disputes. It is encouraged and recognized as the public policy of

Retaliation is the primary concern among those who decide to blow the whistle on wrongdoing. It represents a significant impediment to obtaining the primary goals of whistleblowing: accountability and transparency of government and corporate activities. According to a 2010 government survey of federal employees, “approximately one-third of the individuals who felt they had been identified as a source of a report of wrongdoing also perceived either threats or acts of reprisal

Last week, two Appellate Division courts affirmed the dismissal of fraud claims because the parties asserting the claims failed to demonstrate justifiable reliance, and assert their claim within the statute of limitations. Atlas MF Mezzanine Borrower, LLC v. Macquarie Tex. Loan Holder LLC , 2019 N.Y. Slip Op. 08009 (1st Dept. Nov. 7, 2019) ( here ), and Beacon Estates, LLC v. Ingrassia , 2019 N.Y. Slip Op. 08042 (4 th Dept. Nov. 8, 2019) ( here ). In today’s post, this Blog l

This Blog, in “ Contract Must be Enforced According to Its Clear and Concise Terms Says Second Department ,” analyzed Gristede’s Operating Corp. v. Scarsdale Shopping Ctr. Assoc., LLC, 2019 N.Y. Slip Op. 07771 (2 nd Dep’t October 30, 2019), in which the Second Department found that, inter alia , clear and unambiguous contracts will be interpreted according their terms. The same analysis applies with respect to notice/termination provisions of construction contracts. Thus,