By: Jeffrey M. Haber On June 5, 2019, the Securities and Exchange Commission (“SEC” or the “Commission”) adopted “Regulation Best Interest” or “Reg BI”. 1 In connection with adoption of the regulation, the SEC issued a 175-page release in which it offered guidance on how the Commission interprets Reg BI. 2 The regulation established a standard of conduct for broker-dealers and associated persons when they recommend securities transactions to retail customers. Reg BI is inte

By: Jeffrey M. Haber It has been more than two years since this Blog has written about the account stated cause of action ( here ). On June 21, 2022, the Appellate Division, First Department gave us the opportunity to do so again. Hess 938 St. Nicholas Judgment LLC v. 936-938 Cliffcrest Hous. Dev. Fund Corp. , 2022 N.Y. Slip Op. 03989 (1st Dept. June 21, 2022) ( here ). “An account stated is an agreement between parties to an account based upon prior transactions between them

By Jonathan H. Freiberger When an action is timely commenced but gets dismissed, CPLR 205(a) may permit a plaintiff to commence a new action within six months of the dismissal notwithstanding the expiration of the limitations period.  here,=">here</a>," and="and" the="the" introduction="introduction" to="to" this="this" article="article" is="is" taken="taken" our="our" former="former" article.="article.">   CPLR 205(a) provides: New action by plaintiff. If an action is timel

By: Jeffrey M. Haber Previously, this Blog examined the doctrines of frustration of purpose and impossibility of performance in the context of Covid-19 ( here and here ).  The doctrine of frustration of purpose is narrowly applied. 1 “In order to invoke the doctrine of frustration of purpose, the frustrated purpose must be so completely the basis of the contract that, as both parties understood, without it, the transaction would have made little sense.” 2 In other words, t

By: Jeffrey M. Haber Obtaining jurisdiction over a corporation that is incorporated and headquartered outside of the state can be difficult. A plaintiff must plead and prove that the corporation purposefully availed itself of the resources of the state for a court to exercise personal jurisdiction over the defendant. The failure to do so will result in dismissal of the action. Under CPLR § 302(a)(1), a court can exercise specific personal jurisdiction over a non-domiciliary w

By: Jeffrey M. Haber Litigation can be lengthy, costly and potentially damaging to the financial viability of a business and the financial security of an individual. Often, the parties can resolve their disputes without going to court by using alternative methods such as arbitration and mediation.  Alternative Dispute Resolution (“ADR”) is an area of law devoted to settling disputes without using the court system. ADR is often a shorter and less costly process by which busine

By: Jeffrey M. Haber It is common in commercial and business contracts for the parties to agree upon the law to be applied in the event a dispute arises between them. Typically, these choice of law provisions only apply to the substantive law of the chosen state. 1 They do not apply to the procedural laws of the jurisdiction. For application of the procedural laws, the parties must look to the forum state.  In Baker v. Greentech Capital Advisors, L.P. , 2022 NY Slip Op. 0367

By: Jeffrey M. Haber It goes without saying that lawyers do not win every motion they make. When that happens, a lawyer can appeal the order or avail himself/herself of the two options afforded by CPLR § 2221: he/she can make: (1) a motion to reargue, or (2) a motion to renew. 1 In either case, the lawyer is asking the judge who ruled against him or her to change the outcome of the original motion.  A motion to reargue is addressed to the discretion of the court. It must be

By: Jeffrey M. Haber Variable annuities are complex securities pursuant to which customers, typically seniors and vulnerable adults, enter into long-term contracts with an issuing company, such as a life insurance company. Variable annuities entitle customers to certain payments depending on the terms of the contract and the performance of an underlying portfolio of securities. Variable annuities often have surrender periods, before the end of which customers must pay a fee f