How Do You Actually Breach a Contract?
While many business litigation cases commonly include a breach of contract claim, what does it actually entail? Here is a quick excerpt from one of my briefs explaining what a breach actually is:
Entries by Scott Lanin
Failure to Plead Fraud with Specificity
CPLR §3016(b) requires fraud claims to be pleaded with specificity. The required elements of a cause of action for fraud are: “a material misrepresentation of a fact, knowledge of its falsity, an intent to induce reliance, justifiable reliance by the plaintiff and damages.” Eurycleia Partners, LP v. Seward & Kissel, LLP, 12 N.Y.3d 553, 559 (2009). […]
Time Barred Claims – When Is It Too Late to Sue Under GBL §349?
A court may dismiss a claim if parties assert the claim beyond the statutory time limit. CPLR §3211(a)(5) authorizes the Court to dismiss a cause of action on the ground that “a relevant statute of limitations has expired.” I recently briefed this in the context of a GBL §349 claim for consumer deception where the claim was asserted more than 3 […]
Contract Interpretation and the Parole Evidence Rule
When a contract is disputed as to its intent or terms, parties cannot simply throw every piece of evidence they may have collected to persuade the court of the contract’s true meaning. Courts use the Four Corners approach and the Parole Evidence Rule to determine contradictory intent from within the four corners of the document […]
The Limited Liability Company’s Operating Agreement in New York
The Operating Agreement is the document that controls the operations of an LLC. It is similar to corporate bylaws or a shareholder’s agreement or a partnership agreement. Unlike the articles of organization which is a public document, the operating agreement is not open to public scrutiny. But what does the agreement actually contain?
Removing the Lis Pendens
Though it may sound like it, removing the lis pendens is not in the game Operation. A Lis Pendens, is simply a public notice of a pending lawsuit. I recently handled a dispute over a driveway easement and filed a lis pendens against the easement. Here are the legal standards:
Feeling Contempt Toward Contempt
Being held “in contempt of court” is one of those tropes Hollywood loves to use, but in reality, it can occur for much less than throwing a tantrum during trial. If a party does not obey or breaches a court mandated order, he may be held in contempt. Here are the standards that apply:
Did You Actually Settle?
If the validity of a settlement is in dispute, one test is to check whether the settlement was made in court or in writing, and whether the court conducted an allocution.
Confidentiality Language in Deeds will preclude Summary Judgment in Easement Disputes
Branching off from last month’s discussion of Summary Judgment (if you missed that click HERE), different causes of action will bring about different standards for what truly is triable question of fact. Disputes over easements, for example, look at multiple factors in determining issues of fact. Here is an section from my brief in a […]
Cram Down a Reverse Mortgage
Bankr SD Fla: Debtor Could Cram Down a Reverse Mortgage that Became Due Prepetition. The Code’s Anti-Modificaiton Provision in 1322 did not preclude doing so. Debtor who inherited home from her mother and was not on the note had standing to move the court to bifurcate the reverse mortgage claim into a secured and unsecured […]