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By Jonathan H. Freiberger The New York City Council promulgated rules to, inter alia , protect consumers from debt collection agencies ( see Title 20, Chapter 2, Subchapter 30 of the New York City Administrative Code (the “Code”). Indeed, the Code’s “legislative declaration” ( §20-488 ) recognizes that some debt collection agencies are “unscrupulous” and employ “abusive tactics”.   The Code, at §20-489(a) , defines “debt collection agency” as: a person engaged in business th

By   Jeffrey M. Haber Generally, whether a claim is subject to arbitration is a decision for the court, not the arbitrator. 1 Notwithstanding, the U.S. Supreme Court has held that “parties can agree to arbitrate ‘gateway’ questions of ‘arbitrability.’” 2 Such “delegation clauses” are enforceable where “there is ‘clea and unmistakabl ’ evidence” that the parties intended to arbitrate arbitrability issues. 3 “When deciding whether the parties agreed to arbitrate a certain m

By Jeffrey M. Haber To state a claim for fraud, a plaintiff must satisfy each element of the claim; namely, “a material misrepresentation of fact, knowledge of its falsity, an intent to induce reliance, justifiable reliance by the plaintiff and damages.” 1 The failure to satisfy each element will result in dismissal of the claim. Such was the case in Dreamco Dev. Corp. v. Empire State Dev. Corp. , 2021 N.Y. Slip Op. 04792 (4th Dept. Aug. 26, 2021) ( here ), where plaintiff f

By Jonathan H. Freiberger Last week this Blog examined WFE Ventures, Inc. v. GBD Lake Placid, LLC , decided on August 12, 2021, by the Appellate Division, Third Department, which addressed numerous construction litigation issues < here =">here</a>"> .  Last week’s article focused on issues related to flood damage resulting from an underlying construction project; this week we will address other issues presented in the Court’s Memorandum and Order.  Knowledge of the facts as s

By Jeffrey M. Haber An investment adviser is a fiduciary, and as such is held to the highest standard of conduct and must act in the best interest of his/her client. 1 This means, among other things, that an investment adviser has an affirmative duty of utmost good faith and full and fair disclosure of all material facts. 2 An investment adviser’s fiduciary duties are made enforceable under Section 206 of the Investment Advisers Act of 1940 – the Act’s anti-fraud provisions.

By Jeffrey M. Haber When a party releases another from claims or the threat of claims, he/she is giving up the right to sue the other in connection with the subject of the release. 1 A release effectively eliminates all claims against another that are possessed by the party giving the release. It does not matter whether the releasor knew of the claims at the time that he/she gave the release, so long as “the parties so intend and the agreement is ‘fairly and knowingly made.’

By Jonathan H. Freiberger On August 12, 2021, the Appellate Division, Third Department, decided WFE Ventures, Inc. v. GBD Lake Placid, LLC , a multi-faceted construction litigation.  Today’s article, however, will focus on flood damage resulting from the underlying construction project. In WFE , the defendant owner (“Owner”) built a Marriot hotel in Lake Placid.  Owner hired an architectural firm (“Architect”) to obtain site plan (“Plan”) approval (“Approval”) from the applic

By  Jeffrey M. Haber Cybersecurity disclosures are important for a number of constituencies. For example, consumers have a right to know if their data has been compromised at the company in which they do (or have done) business. Investors have a right to know if the company in which they have invested, or will invest, is the victim of a data breach and how such a breach has impacted (or will impact) the company’s business and operations.  As cybersecurity breaches become more

By Jeffrey M. Haber A confession of judgment is an agreement whereby a defendant or debtor agrees to the entry of judgment against him/her in an amount certain. It is a procedural device whereby the plaintiff or creditor can bypass the commencement of a lawsuit to obtain the amount “confessed.”  Confessions of judgment are used in a variety of circumstances. For example, parties to a litigation may use a confession of judgment as part of a settlement whereby the defendant agr