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By: Jeffrey M. Haber “A boiler room is a place or operation—usually a call center—where high-pressure salespeople call lists of potential investors (‘sucker lists’) to peddle speculative, sometimes fraudulent, securities. Sucker lists identify victims of previous scams.” 1 The term “boiler room” originates from the practice of running high-pressure sales operations in the basement or boiler room of a building. 2 A broker using boiler-room tactics provides only upbeat, positi

By Jonathan H. Freiberger It is common for contracts to require that one party procure, for its own protection and for the protection of the other party, specific types of insurance coverage and the dollar amounts of such coverage.  Insurance procurement provisions are typically found in, among others, construction contracts and real property leases.  Such insurance procurement provisions are material parts of the contracts in which they appear. On March 15, 2022, the Appella

By: Jeffrey M. Haber Under New York law, an action based upon fraud must be commenced within six years of the date the cause of action accrued, or within two years of the time the plaintiff discovered or could have discovered the fraud with reasonable diligence, whichever is greater. 1 The cause of action accrues when “every element of the claim, including injury, can truthfully be alleged”, 2 “even though the injured party may be ignorant of the existence of the wrong or i

By: Jeffrey M. Haber A recurring theme in fraud jurisprudence is the dismissal of fraud claims that duplicate breach of contract claims. As we have noted, a fraud claim will not survive a dismissal motion when there is “a valid and enforceable written contract govern a particular subject matter” and the recovery sought arises out of the same facts and circumstances. 1 There are exceptions to this rule, such as where “a legal duty independent of the contract itself has been

By Jonathan H. Freiberger In general terms, venue is the place where the trial of an action will take place.  Venue issues in New York practice are governed by Article 5 of the CPLR . [Eds. Note: this BLOG has previously written about Article 5 of the CPLR < here =">here</a>"> and < here =">here</a>"> .]  As indicated in our prior articles, the plaintiff, as the party bringing the proceeding, generally gets to choose, in the first instance, venue.  Plaintiffs, however, do no

By: Jeffrey M. Haber In April 2021, this Blog examined the doctrines of frustration of purpose and impossibility of performance in the context of Covid-19 ( here ). In particular, we examined 1877 Webster Ave. Inc. v. Tremont Ctr., LLC , 2021 N.Y. Slip Op. 21113 (Sup. Ct., Bronx County Mar. 29, 2021), a case involving a commercial lease for space that was to be used as a night club and “for no other purpose”. The plaintiff commenced the action seeking a declaration that the p

By: Jeffrey M. Haber A common theme in commercial litigation is the assertion of a breach of contract claim and a fraudulent inducement claim. As readers of this Blog know, where both claims are asserted, more times than not, the fraud claim is dismissed under the duplication of claims doctrine. Stated simply, the doctrine provides that a fraud claim cannot stand side-by-side with a breach of contract claim when there is “a valid and enforceable written contract govern a pa

By Jonathan H. Freiberger As indicated in our previous articles regarding RPAPL 881, Real property owners or lessees (“Owners”) often find that their real property is in need of improvement and/or repair (the “Work”).  [Eds. Note:  this Blog has discussed RPAPL 881 < here =">here</a>"> and < here =">here</a>"> .]  Sometimes, the Work requires access to adjoining property (a “Neighbor”).  In many instances, a Neighbor graciously permits access to the Owner’s contractors so th

By: Jeffrey M. Haber Arbitration is an alternative dispute resolution mechanism that enables parties to resolve disputes without going to court. Arbitration is similar to a trial without the formalities. It is an adversarial proceeding where the parties can call witnesses and present evidence to a neutral arbitrator or panel of arbitrators. The rules of discovery and evidence are relaxed to make it a shorter and more cost-efficient process. Often, the parties select the arbit