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As discussed in previous Blog posts, business owners and entrepreneurs wishing to insulate themselves from personal liability for the acts taken in the name of their business can generally do so by forming a corporation ( e.g. , C-Corp. or an S-Corp.) or limited liability company (“LLC”). Such protection, however, is not absolute; there are exceptions to the rule. For instance, a creditor or other third party can “pierce the corporate veil” – i.e. , go behind the corporate fo

An interesting question sometimes arises in the tort arena in which a third-party to a transaction claims to have been injured by one of the parties. Do the parties to the transaction owe a duty to the third party? The answer depends on whether the third party can show privity or near privity with the alleged tortfeasor. In this regard, the third party must demonstrate that the parties were aware that their report, agreement or transaction documentation would be used by the t

Clients often ask if their oral agreement is enforceable. To support their claim, they point to emails and text messages as evidence of such an agreement. As this Blog has noted in the past, whether an oral agreement is enforceable and whether emails and text messages are sufficient documentary evidence to demonstrate the existence of such an agreement are dependent upon whether the evidence is admissible and irrefutable. See , e.g. , here , here , and here . In today’s post,

In November of 2018, this Blog wrote about Unique Goals International, Ltd. v. Finskiy ( here ), a case involving a fraud cause of action that was dismissed because the plaintiff failed to satisfy the justifiable reliance element of the claim. On December 26, 2019, the Appellate Division, First Department unanimously affirmed the dismissal of the fraud claim. Unique Goals Intl., Ltd. v. Finskiy , 2019 N.Y. Slip Op. 09381 (1st Dept. Dec. 26, 2019) ( here ). Background Plainti

From time to time, this Blog writes about procedural issues that arise during the course of a litigation. Today, we write about the note of issue and certificate of readiness. A note of issue is a form that is filed and served on all parties confirming that the case is ready for trial. CPLR § 3402(a). Although any party may file the note of issue after issue is joined, it is usually the plaintiff who files the form. In addition to the note of issue, the party making the fil

Whether to permit discovery of insurance coverage decisions is often hotly contested. The issue typically arises in cases in which the carrier performs an investigation into the facts and circumstances of a potential or actual claim. The fruits of such an investigation can be very illuminating. For this reason, plaintiffs request the disclosure of all documents concerning such investigations. Defendants and insurers often resist producing these materials on privilege and work

Recording a mortgage puts the world on notice of the mortgagee’s interest in the real property that is the subject of the mortgage.  “New York has a ‘race-notice’ recording statutory scheme whereby the mortgage recorded first by a mortgagee without notice of any other mortgages will maintain priority over such other mortgages.”  Alliance Funding Co. v. Taboada , 39 A.D.3d 784 (2 nd Dept. 2007).  Section 291 of New York’s Real Property Law , which governs the recording of co

In August of this year, this Blog wrote about Norddeutsche Landesbank Girozentrale v. Tilton , 2019 N.Y. Slip Op. 32470(U) (Sup. Ct., N.Y. County Aug. 20, 2019) ( here ), a case involving several elements of a fraud claim. ( Here .) As we noted at the time, Norddeutsche was a good example of why the courts refrain from dismissing fraud claims – there are issues of fact that are best left to the trier-of-fact to decide. Shortly after this decision, Defendants appealed the mot

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