Joshua B. Subin

Subin Secures Appellate Victory: Key Claims Reinstated for Clients in Real Estate Fraud Case

McCarthy Fingar represents clients on cases involving problems in real estate transactions.  In Stuart Yellin, et al. v. Revival Property Group, LLC, et al., real estate brokers acted as a dual agent on a real estate transaction, representing both the firm’s clients, as the buyer, and the sellers in the sale of certain real property located in Nassau County. Shortly after the purchase of the property and contrary to the brokers’ representations, the firm’s clients discovered, among other things, that the property was remodeled without proper permits, causing significant structural defects, including potential fraud in the transactions. Acting for its clients, McCarthy Fingar commenced an action in the Supreme Court, Nassau County, against the real estate brokers, claiming fraudulent misrepresentation, negligent misrepresentation, gross negligence and breach of fiduciary duty. Several important claims were dismissed by the lower court, and McCarthy Fingar appealed that decision to the Appellate Division of the Supreme Court, Second Judicial Department (“Second Department”). The Second Department reversed the lower court’s dismissal of several crucial claims, including fraudulent misrepresentation, negligent misrepresentation, gross negligence, and breach of fiduciary duty, against defendants Brode Ellison Group at Douglas Elliman Real Estate and Mark Brode. The Second Department also reversed the lower court’s denial of the plaintiffs’ motion for leave to amend their complaint, further empowering the plaintiffs to strengthen their case. The case will now proceed in the lower court with the reinstated causes of action.

The case was argued by Joshua S. Subin, a partner in the firm’s Commercial Litigation, Municipal Law & Land Use,  Appellate Practice and Real Estate Transactions groups.  “This is a vital outcome for our clients and a significant affirmation of fundamental procedural protections in New York law,” said Joshua S. Subin, counsel at McCarthy Fingar. “The Appellate Division’s decision rightly reinstates our clients’ claims, allowing them to pursue justice for alleged fraudulent conduct and breaches of professional duty. It also serves as an important reminder that CPLR 3211(a) motions to dismiss must be evaluated strictly against the pleaded facts, and courts must provide explicit notice before converting such motions to summary judgment.”

Subin Speaks on Ethics Issues

Joshua B. Subin, a member of our Municipal Law & Land Use and Commercial Litigation groups, spoke on “The No Contact Rule and Its Exceptions” for the Ethics Committee of the Westchester County Bar Association.

Subin Settles Major Religious Land Use & Institutionalized Persons Act

Joshua B. Subin, a member of our Municipal Law & Land Use and Commercial Litigation groups, along with co-counsel Leo Dorfman (Sokoloff & Stern) working, on behalf of the Village of Briarcliff Manor, obtained a preliminary settlement of a major Religious Land Use & Institutionalized Persons Act suit, making way for potential redevelopment of the former Pace University Site located in the Village. In a press release, the Village advised that it has reached an agreement with Yeshivath Viznith Dkhal Torath Chaim and Khal Torath Chiam “to suspend litigation and explore alternative uses of the property located at 235 Elm Road. Developers are pursuing the purchase of the property for residential use, and the Village has agreed to study our current zoning, review potential site plans, and consider the associated impacts and benefits such redevelopment might offer our Village.” The settlement and the Village’s decision were also reported by various new organizations.

Subin Speaks on Attorney Ethics and Technology Issues

Joshua B. Subin, a member of our Municipal Law & Land Use and Commercial Litigation groups, spoke on “Attorney Ethics and Technology-Mediated Lawyering: What’s “Local” in Remote Practice of Law?” for the Westchester County Bar Association. This CLE provided an overview of the unauthorized practice of law in the context of the remote practice of law and the use of artificial intelligence.

Subin Joins Firm as Counsel

We are pleased to announce that Joshua B. Subin has joined our firm as counsel. Joshua is a former Assistant Town Attorney with the Town of Cortlandt and is a member of our Municipal Law & Land Use and Commercial Litigation groups. Joshua practices in the areas of New York municipal law, zoning, planning, litigation and environmental law. He counsels municipal entities in Westchester County, including Boards of Trustees, Planning Boards, Zoning Boards of Appeal. Joshua also represents private clients on zoning and planning approvals on real estate development throughout Westchester, Putnam and Rockland Counties. He is also a respected commercial litigator and represents private clients in litigation matters, including, but not limited to, commercial, contract, land use and zoning and real property disputes.

Stuart Yellin, et al. v. Revival Property Group, LLC, et al., ___ A.D.3d ___ (2d Dep’t 2025)

Joshua B. Subin

Real Estate Brokers – Dual Agency of Representing Buyer and Seller  –  Real Estate Transactions

McCarthy Fingar represents clients in litigation on real estate transactions. Here, real estate brokers acted as a dual agent on a real estate transaction in which they represented both the firm’s clients, as the buyer, and the sellers in the sale of certain property located in Nassau County. Shortly after the purchase of the property and contrary to the brokers’ representations, the firm’s clients discovered, among other things, that the property was remodeled without proper permits, causing significant structural defects, including potential fraud in the transactions. Acting for its clients, McCarthy Fingar commenced an action in the Supreme Court, Nassau County, against the real estate brokers, claiming fraudulent misrepresentation, negligent misrepresentation, gross negligence and breach of fiduciary duty. Several important claims were dismissed by the lower court, and McCarthy Fingar appealed that decision to the Appellate Division of the Supreme Court, Second Judicial Department (“Second Department”).

The Second Department reversed the lower court’s dismissal of several crucial claims, including fraudulent misrepresentation, negligent misrepresentation, gross negligence, and breach of fiduciary duty, against defendants Brode Ellison Group at Douglas Elliman Real Estate and Mark Brode. The appeal, argued by McCarthy Fingar partner, Joshua S. Subin, focused on the proper application of CPLR 3211(a) dismissal standards and the lower court’s error in effectively converting a motion to dismiss into a motion for summary judgment without providing the parties with the requisite notice under CPLR 3211(c). In its decision, the Second Department found that the lower court erred by treating the defendants’ CPLR 3211(a) motion as one for summary judgment without providing proper notice. While the Second Department proceeded to review the dismissal motion under the correct CPLR 3211(a) standards “in the interest of judicial economy,” its determination underscored the critical distinction between these two different procedural motions.

Applying the CPLR 3211(a) standards – which require accepting the facts alleged in the complaint as true, affording the plaintiffs the benefit of every possible favorable inference, and determining only whether the facts fit within any cognizable legal theory – the Second Department concluded that the plaintiffs’ complaint sufficiently stated causes of action. The Second Department found that the defendants’ documentary proof failed to “utterly refute” the plaintiffs’ factual allegations, particularly regarding claims of a fraudulent house-flipping scheme and a real estate broker’s breach of fiduciary duty due to alleged dual agency and lack of proper disclosure.

The Second Department also reversed the lower court’s denial of the plaintiffs’ motion for leave to amend their complaint, further empowering the plaintiffs to strengthen their case.

The case will now proceed in the lower court with the reinstated causes of action.