In a decision dated April 20, 2009, Justice Lowe, in connection with an action by Plaintiff-lender against Defendant-developer involving an alleged breach of a loan agreement, and on cross-motions for summary judgment, as well as Plaintiff’s motion to strike Defendant’s answer and counterclaims, 1) denied Plaintiff’s motion on its breach-of-contract claim, finding that because the… Continue Reading
Monthly Archives: August 2010
Passionist Communications, Inc. v. Arnold, Sup Ct, Westchester County, May 26, 2009, Scheinkman, J, Index No.14339/07
Posted in Constructive Trust, Judgment Notwithstanding Jury Verdict, Laches, WestchesterIn a May 26, 2009 decision, Justice Scheinkman denied plaintiff’s motion to overturn a judgment notwithstanding a jury verdict, or, in the alternative for a new trial. The Court found that the defenses closing statement was accurate, that plaintiff failed to object to the closing at trial or to respond to the allegedly impermissible statements in… Continue Reading
Sanger v. Bower, Sanger & Lawrence, P.C., Sup Ct, New York County, February 24, 2009, Lowe, J, Index No. 600862/08
Posted in Contempt of Court, Justice Lowe, Richard B. III, Knowledge, New York, Ordinary Course of BusinessIn a decision dated February 24, 2009 relating to an action for dissolution of the defendant law firm, Justice Lowe rejected plaintiff’s argument that the defendant’s surrender of the firm’s insurance policy on his life to a third party bank to pay down a letter of credit violated a previously entered consensual temporary restraining order… Continue Reading
Schwarz Supply Source v. Redi Bag USA LLC., Sup Ct, Nassau County, December 22, 2008, Bucaria, J, Index No. 016733/08
Posted in Documentary Evidence, Doing Business, Foreign Corporation, Justice Bucaria, Stephen A., Nassau, Prior Action PendingIn a December 22, 2008 decision, Justice Bucaria granted defendant’s motion to dismiss on numerous grounds. The first basis for defendant’s motion was plaintiff’s status as a foreign corporation not licensed to do business in New York. The Court found that the defendant demonstrated that the plaintiff’s business activities in New York were not “casual or… Continue Reading
Metro Realty Services, LLC v. Old Country Realty Corp., Sup Ct, Nassau County, June 2, 2009, Bucaria, J, Index No. 0195449/05
Posted in Attorney Work Product, Attorney-Client Privilege, Confidentiality, Discovery, Justice Bucaria, Stephen A., Motion For Sanctions, NassauIn a decision dated June 2, 2009, Justice Bucaria, in a connection breach-of-contract and fraud action by Plaintiff-real estate broker against Defendant-property owner involving a claim for a brokerage commission, and on Plaintiff’s motion to strike Defendant’s answer and for the imposition of costs and sanctions, as well as Defendant’s cross-motion to compel Plaintiff to… Continue Reading
Zemnovich v. 2729 Coney Is. Ave., LLC, Sup Ct, Kings County, June 22, 2009, Demarest, J, Index No. 7739/08
Posted in Breach of Contract, Condition Precedent, Contract Interpretation, Justice Demarest, Carolyn E., Kings, Summary JudgmentIn a decision dated June 22, 2009, Justice Demarest, in connection with a breach-of-contract action by Plaintiff-buyer against Defendant-seller seeking the return of a deposit given under an agreement for the sale of commercial property, and on cross-motions for summary judgment, denied Defendant’s motion and granted Plaintiff’s motion, finding that the written contract reflected the… Continue Reading
Schneider v Rothstein, Sup Ct, Nassau County, July 8, 2009, Driscoll, J, Index No. 005546/08
Posted in Ambiguity, Breach of Contract, Condition Precedent, Contract Interpretation, Justice Driscoll, Timothy, Nassau, Promissory Note, Summary JudgmentIn a decision dated July 8, 2009, Justice Driscoll denied Plaintiff’s motion for summary judgment which sought damages on Defendant’s alleged failure to repay under a promissory note in connection with a loan allegedly conditioned on the sale of Defendants’ dental practice, finding that the language in the promissory note regarding the date of repayment… Continue Reading
Matter of Giampaola v. Allstate Ins. Co., Sup Ct, New York County, May 26, 2009, Kornreich, J, Index No. 104920/07
Posted in Confirming Arbitration Award, CPLR 7511, Justice Kornreich, Shirley Werner, New York, Statute of Limitations, Tolling, Vacating Arbitration AwardIn a May 26, 2009 decision, Justice Kornreich affirmed an arbitration award which denied the petitioner any relief on statute of limitations grounds. The Court found that the arbitrators’ decision was neither arbitrary nor capricious, but in fact rational, and the motion to confirm was brought within one-year of the decision being rendered, mandating confirmation of… Continue Reading
Pugach v. HBO Pictures, Inc., Sup Ct, Queens County, Feb. 19, 2009, Kitzes, J, Index No. 17741/08
Posted in Attorney-Client Privilege, Documentary Evidence, Fraud, Justice Kitzes, Orin R., Legal Malpractice, Motion to Dismiss, QueensIn a decision dated February 19, 2009, Justice Kitzes dismissed plaintiffs’ causes of action for breach of contract and fraud, stemming from an agreement with defendant Shoot the Moon Productions in which, in consideration for $2,000, plaintiffs granted Shoot the Moon an option to purchase motion picture, television, and radio rights to their life stories…. Continue Reading
Jan Companies of NY Holdings, LLC v. 734-40 Broadway Realty LLC, Sup Ct, New York County, May 5, 2009, Schweitzer, J, Index No. 604098/07
Posted in Commercial Lease, Industry: real estate, Justice Schweitzer, Melvin L., New York, Self HelpIn a May 5, 2009 decision, Justice Schweitzer granted summary judgment to a landlord in a commercial lease dispute matter where the tenant razed the leased building, without notice to the landlord, because the building in its original state it could not accommodate the three-floor Burger King restaurant the tenant wanted to build. The Court… Continue Reading
Metro Coffee Service Corp. and Kim v. Metro Spring Coffee Inc., Yang and Yang, Sup Ct, Nassau County, Dec. 24, 2008, Austin, J, Index No. 16080/08
Posted in Attorney's Affidavit, Burden of Proof, Justice Austin, Leonard B., Nassau, Sanctions, Summary Judgment in lieu of ComplaintIn a December 24, 2008 decision, Justice Austin denied plaintiff’s motion for summary judgment in lieu of a complaint based upon a promissory note. The action was based upon a promissory note provided at the time of the sale of a business and accompanying restrictive covenants. In opposition to plaintiffs’ claims that amounts were due… Continue Reading
Taub v. Kaplan, Sup Ct, Nassau County, Jan.13, 2009, Austin, J, Index No. 12553/06
Posted in Fraud, Judgment Pursuant to Stipulation of Settlement, Justice Austin, Leonard B., Nassau, Vacate SettlementIn a decision dated January 13, 2009, Justice Austin (1) granted the plaintiffs’ motion for a judgment pursuant to a stipulation of settlement entered into and resolving five related cases involving breach of contract claims and awarded prejudgment interest under CPLR § 5001 because the unambiguous language of the settlement agreement stated that defendant PRK owed… Continue Reading
Sunset W. LLC et al. v. Sutphin Mgt. Corp. and Eshaghpour, Sup Ct, Kings County, May 22, 2009, Demarest, J, Index No. 27102/06
Posted in CPLR 5015 (a) (3), Illegal Contract Contempt, Industry: real estate, Justice Demarest, Carolyn E., Kings, Liquidated Damages, Motion to VacateIn a May 22, 2009 decision, Justice Demarest denied the defendants second motion to vacate summary judgment entered in favor of the plaintiffs. The Court denied that motion for failing to satisfy any of the prongs of CPLR 5015(a)(3), and because in reality it was an attempt to reargue a motion decided years before. The Court… Continue Reading
Malament v. Kim and Arctic Products Corp., Sup Ct, Nassau County, Dec. 23, 2008, Austin, J, Index No. 16602/08
Posted in Justice Austin, Leonard B., Nassau, Return Date, Service of Process, Summary Judgment in lieu of ComplaintIn a December 23, 2008 decision, Justice Austin denied plaintiff’s motion for summary judgment in lieu of complaint and dismissed plaintiff’s action which was based upon two promissory notes. The Court found that the plaintiff failed to provide defendant with the required time to oppose the motion in setting the return date on the motion,… Continue Reading
Trump v. Cheng, Sup Ct, New York County, Jan.6, 2009, Lowe, J, Index No. 602877/05
Posted in CPLR 2221, Motion to Reargue, RenewalIn a decision dated January 6, 2009, Justice Lowe denied the plaintiff’s motion to reargue a motion to dismiss the complaint which was granted in the defendant’s favor on the grounds that: (1) the motion was untimely pursuant to CPLR 2221 and (2) the motion failed to identify any law or fact the court overlooked… Continue Reading
Wong v. Moy, Sup Ct, NY County, Apr. 13, 2009, Kapnick, J, Index No. 601048/08
Posted in Breach of Contract, Derivative Actions, Fiduciary Duty, Fraud, Justice Kapnick, Barbara R., Motion to Dismiss, New York, Shareholder DisputeIn an April 13, 2009 decision, Justice Kapnick granted the defendant’s motion to dismiss the complaint, which alleged breach of a Shareholder’s Agreement, fraud, and fiduciary duty stemming from the plaintiff’s agreement to become a 50% partner in the defendant’s radio station business and their execution of two Shareholder’s Agreements. The court dismissed the breach of… Continue Reading
Interasian Resources Group, LLC v. Shakedown Street – NYC, LLC, et al., 2009 NY Slip Op 31080(U)New York County, April 20, 2009 Sup Ct, Kapnick, J, Index No. 105682/08
Posted in Constructive Fraud, Debtor-Creditor, Factoring, Fraudulent Transfer, Industry: manufacturing, Justice Kapnick, Barbara R., Successor LiabilityIn an April 20, 2009 decision, Justice Kapnick addressed motions to dismiss claims made under the New York Debtor and Creditor law based upon an allegedly fraudulent conveyance of one of the defendant’s assets to other defendants in order to avoid the defendant’s obligations to plaintiff. The Court held that the constructive fraud and actual… Continue Reading
Yarrow LLC v. Laszlo Bodak Engineering, P.C. 2009 NY Slip Op 50836(U), 23 Misc 3d 1119[A], Sup Ct New York County, April 20, 2009, Kapnic, J, Index No. 602017/08
Posted in CPLR 3031, Impleader, Indemnification, Industry: engineering, Justice Kapnick, Barbara R., New YorkIn an April 20, 2009 decision, Justice Kapnick addressed the procedures to be followed when parties to a contract state that any disputes under the contract are to be determined pursuant to the New York Simplified Procedure for Court Determination of Disputes which allows a court to streamline discovery and other pre-trial practice and move… Continue Reading
Century-Maxim Construction Corp. v. One Bryant Park LLC et al., NY Slip Op 50858(U), 23 Misc 3d 1120[A] [April 7, 2009, 2009 Sup Ct Westchester County]
Posted in Account Stated, Attorneys' Fees, Breach of Contract, Documentary Evidence, Good faith and fair dealing, Industry: construction, Justice Scheinkman, Alan D., Motion to Dismiss, Rescission, WestchesterIn an April 7, 2009 decision, Justice Scheinkman partially granted defendants’ motion to dismiss a complaint arising out of a contract for concrete for a 520story skyscraper in New York City. The concrete contractor sued for damages on multiple bases, including breach of contract; quantum meruit; account stated rescission; and attorneys fees. The Court partially… Continue Reading
Claremont Realty LLC v. River Oaks Capital Management, Inc., 2008 NY Slip Op 33194(U) [Sup Ct Nassau County]
Posted in Breach of Contract, Justice Bucaria, Stephen A., Nassau, Preliminary InjunctionIn a November 14, 2008 decision, Judge Bucaria granted a request for a preliminary injunction to enjoin defendants using, drawing down, or depleting a letter of credit from plaintiff on the grounds that defendants breached a contract and engaged in fraud. (1) The plaintiff demonstrated a likelihood of success on the merits of its breach… Continue Reading
125 Urban Joint Venture Partners, LLC v. Hope Community, Inc., 2008 NY Slip Op 33177(U) [Sup Ct New York County 2008]
Posted in Breach of Fiduciary Duty, Choice of Law, Exclusivity, Justice Ramos, Charles E., New York, Preliminary InjunctionIndustry: Real Estate In a November 3, 2008 decision, Judge Ramos denied a motion for a preliminary injunction brought to enjoin the defendants from competing with the plaintiffs to acquire development rights on the grounds that the defendants breached fiduciary duties owed to the plaintiffs. The court first determined that either Delaware or New York… Continue Reading
Comverse Technology, Inc. v. Alexander and Sorkin, Supreme Court, New York County Index No. 600142/08 (Nov. 3, 2008)
Posted in Justice Ramos, Charles E., Motion to Dismiss, New YorkIn a November 3, 2008 decision, Justice Ramos denied a motion to dismiss an unjust enrichment claim based upon the statute of limitations. The plaintiff brought claims against its former CEO and Chair of its Board of Directors (Alexander) and a former director, corporate secretary and General Counsel (Sorkin) based upon an alleged stock option… Continue Reading
Sorbara Construction Corp. v. Thatch Ripley Co., 2009 NY Slip Op 30527(U)
Posted in Breach of Contract, Justice Platkin, Richard, New YorkOn Plaintiff-general contractor’s claims for money damages and foreclosure on its mechanic lien, and on Defendant-owners’ motion to strike Plaintiff’s demand for trial by jury by reason of its joining equitable and legal claims, the Supreme Court, New York County, Lowe, J. denied Defendants’ motion, finding that the dispute as a whole was legal in… Continue Reading
Tener Consulting Servs., LLC v FSA Main St., LLC, 2009 NY Slip Op 50857(U) [Sup Ct Westchester County, 2009]
Posted in Justice Scheinkman, Alan D., WestchesterIndustry: In an April 2009 decision, Justice Scheinkman granted the defendant’s motion to change venue on the grounds that no party resided in Westchester County when the action was commenced. Finding that the only legal residence of a limited liability company for venue purposes is the county where the LLC’s principal office is located as… Continue Reading