All Posts

A client calls up an attorney and describes a situation in which two parties are litigating an issue that the client maintains she has interest in. She wants to be sure that her interests are not adversely affected by the outcome of that litigation. She asks the lawyer what she can do. The answer (for purposes of today’s article): intervene in the action. Intervention is a procedure by which a nonparty may join a pending litigation. In New York, intervention is governed by CP

In one of our BLOGS from last week, we addressed the remedy of specific performance in breached real estate contracts < HERE =">HERE</a>"> .  The BLOG noted that, under certain circumstances when monetary damages are insufficient to make one of the parties whole after a breach, the equitable remedy of specific performance may be available to require the breaching party to perform.  On January 20, 2021, the Appellate Division, Second Department, decided W Equities Acquisitions

On January 19, 2021, the Appellate Division, First Department issued three decisions involving claims of fraud. See United Natural Foods, Inc. v. Goldman Sachs Grp. , 2021 N.Y. Slip Op. 00276 (1st Dept. Jan. 19, 2021) ( here ); KS Trade LLC v. International Gemological Inst., Inc. , 2021 N.Y. Slip Op. 00259 (1st Dept. Jan. 19, 2021) ( here ); and Itria Ventures LLC v. Provident Bank , 2021 N.Y. Slip Op. 00257 (1st Dept. Jan. 19, 2021) ( here ). Although these cases involved d

It has long been held that “promissory statements as to what will be done in the future are not actionable.” Adams v. Clark , 239 N.Y. 403, 410 (1925). However, when the promissory statement is “made with a preconceived and undisclosed intention of not performing it,” it becomes an actionable misrepresentation of existing fact. Sabo v. Delman , 3 N.Y.2d 155 (1957). The foregoing principles have been examined by this Blog numerous times ( e.g. , here and here ). In today’s ar

The lyrics to the song “Money (That’s What I Want)”, written by Berry Gordy and Janie Bradford and covered by, inter alia , by The Beatles, seem shortsighted when contemplating available remedies in a breach of contract action.  Thus, according to the song “money don’t get everything, it’s true, what it don’t get, I can’t use, now give me money, that’s what I want.”  While money damages in an action at law may “afford a full and complete remedy” to make a plaintiff whole in t

When a person claims fraud, he/she typically claims that the alleged wrongdoer made an affirmative misrepresentation of fact. Fraud does not, however, always concern an affirmative statement. Sometimes a person can perpetrate a fraud through the omission of a material fact. For this reason, when alleging fraud, a plaintiff may allege that the defendant made “a misrepresentation or a material omission of fact which was false and known to be false.” Mandarin Trading Ltd. v. Wil

When a plaintiff initiates a lawsuit, he/she must file and serve a summons and complaint. Typically, the plaintiff will hire a process server to effect service. If the process server errs in making service (that is, service is deemed to be improper and defective), the defendant may object and assert an affirmative defense that the court lacks personal jurisdiction over him/her because service was defective. However, as discussed in today’s post, this defense can be waived if

Like attending school in your underwear, missing a scheduled Court appearance is a recurring nightmare for attorneys.  If an appearance is missed, there can be several and severe consequences.  Rule 22 NYCRR 202.27 (Defaults) provides: At any scheduled call of a calendar or at any conference, if all parties do not appear and proceed or announce their readiness to proceed immediately or subject to the engagement of counsel, the judge may note the default on the record and ent

A “recurring question” courts in New York grapple with is whether the facts alleged in a complaint give rise to sustainable claims for both breach of contract and fraudulent inducement. Cronos Grp. v. XComIP, LLC , 156 A.D.3d 54, 56 (1st Dept. 2017). Readers of this Blog know that a fraud claim, which “ar from the same facts , s identical damages and d not allege a breach of any duty collateral to or independent of the parties’ agreements<,> is subject to dismissal as red