In a November 8, 2010 decision by Justice Pines, the court granted the plaintiffs’ motion for summary judgment which sought an order directing the defendant to pay the balance on a written charitable pledge the defendant made in connection with the plaintiffs’ hospital expansion and modernization project. The court rejected the defendant’s argument that no consideration… Continue Reading
Monthly Archives: November 2010
ConnectU, Inc. v Quinn Emanuel Urquhart Oliver & Hedges, LLP, Sup Ct, New York County, November 3, 2010, Lowe, J., Index No. 602082/08
Posted in Arbitration, Arbitration Award, Assignment, Justice Lowe, Richard B. III, New York, Unlicensed ContractorIn a November 3, 2010 decision by Justice Richard B. Lowe, the Court granted the motion of Respondent Quinn Emanuel Urquhart Oliver & Hedges, LLP ("Quinn Emanuel"), pursuant to the Federal Arbitration Act, 9 U.S.C. §9, Rule 11, and Article 75 of the Civil Procedure Law and Rules, to confirm an arbitration award issued by… Continue Reading
Essex Ins. Co. v Barillaro, et al., Sup Ct Queens County, July 21, 2010, Kitzes, J, Index No. 558/07
Posted in Declaratory Judgment, Industry: insurance, Insurance Coverage, Summary JudgmentIn an October 22, 2010 decision by Justice Kitzes, the court granted an insurance company summary judgment declaring that it did not have to provide a defense or indemnification to a contractor who subcontracted certain of the work. In 2005 an employee of a plumbing contractor allegedly was injured on the construction project. Over one year… Continue Reading
Lafarge Bldg. Materials, Inc. v. Pozament Corporation, Sup Ct, Albany County, August 24, 2010, Platkin, J., Index No. 3333/04
Posted in Albany, Anticipatory Repudiation, Breach of Contract, Condition Precedent, Contract Damages, Contract Interpretation, Estoppel, Exclusivity, Industry: manufacturing, Interference with Prospective Advantage, Justice Platkin, Richard, Material Breach, Oral Modification, Summary Judgment, WaiverIn an August 24, 2010, decision by Justice Platkin in connection with a breach-of-contract action between plaintiff-cement manufacturer and defendant-fly ash supplier, and on the parties’ cross-motions for summary judgment on the issue of plaintiff’s performance under the parties’ service agreement, the court granted plaintiff’s motion and dismissed defendant’s counterclaim, finding that plaintiff had performed… Continue Reading
Matter of Cusimano v Strianese Family Ltd. Partnership, Sup Ct Nassau County, October 5, 2010, Warshawsky, J, Index No. 8522/2010
Posted in Arbitration, Discovery, Justice Warshawsky, Ira B., NassauIn an October 5, 2010 decision by Justice Warshawsky, the court granted the petitioner’s motion pursuant to CPLR § 3102(c) to compel the depositions of intervening parties in an ongoing arbitration. The court had previously granted the petitioner’s parents, who claimed a 50% ownership in subject partnership, to intervene in dissolution proceedings and arbitrate the entire proceeding. The… Continue Reading
CP Energy Group, Inc. v Windy Point Partners, LLC, Sup Ct, NY County, October 5, 2010, Fried, J, Index No. 650026/10
Posted in Another Action Pending, Breach of Contract, Contract Interpretation, CPLR 3211, CPLR 327, Forum non Conveniens, Forum Selection Clause, Industry: real estate, Justice Fried, Bernard J., Motion to Dismiss, New York, Personal Jurisdiction, Service of Suit ClauseIn an October 5, 2010, decision by Justice Fried in connection with plaintiff-consultant’s action for breach of contract against defendant-property owners under a consulting agreement to find a buyer for defendants’ property, and on defendants’ motion to dismiss the complaint under CPLR 3211 [a] [4] and CPLR 327, the court denied defendants’ motion, finding that… Continue Reading
Axios Prod., Inc v Time Mach Software, Inc, Sup Ct, Suffolk Count, October 4, 2010, Emerson, J, Index No 13825/10
Posted in Breach of Contract, CPLR 3211, Foreign Corporation, Industry: technology, Justice Emerson, Elizabeth, Licensing, Motion to Dismiss, Permanent Injunction, Service of Process, SuffolkIn an October 4, 2010 decision by Justice Emerson, the Court granted a preliminary injunction to a software distributor enjoining the termination of a software licensing agreement. The software in question was developed by an Israeli’s company and licensed to a New York company for marketing, licensing and distribution. The parties entered into an initial agreement a… Continue Reading
Bohigan v Pearson, Sup Ct, New York County, October 15, 2010, Schweitzer, J., Index No. 650149/10
Posted in Breach of Fiduciary Duty, CPLR 3211, Demand Futility Doctrine, Derivative Actions, Industry: financial services, Justice Schweitzer, Melvin L., Motion to Dismiss, New York, Unjust EnrichmentIn an October 15, 2010, decision by Justice Schweitzer in connection with a shareholder derivative action brought by plaintiff-shareholder on behalf of an asset-management company against its board of directors alleging an improper accounting of the company’s investments, and on defendants’ motion to dismiss for failure to state a cause of action and failure to… Continue Reading
Silverman v Shaoul, Sup Ct NY County, Nov, 3, 2010, Bransten, J, Index No. 603231/08
Posted in Electronic Discovery, Justice Bransten, Eileen, Motion to Compel Discovery, New YorkIn a November 3, 2010 decision by Justice Bransten, the Court denied the defendants’ motion to compel the plaintiffs to pay for the costs of the defendants’ production of electronic discovery. The Court rejected the defendants’ argument that the plaintiff’s failure to respond to correspondence concerning discovery cost estimates constituted the plaintiff’s agreement to pay… Continue Reading
Freifeld v Native Am. Energy Group, Inc., Sup Ct Nassau County, September 13, 2010, Bucaria, J, Index No. 005503/10
Posted in Forum Selection Clause, Justice Bucaria, Stephen A., Nassau, Shareholder DisputeIn a September 13, 2010 decision by Justice Bucaria, the court declined the defendant’s motion to transfer the venue of the action from Nassau to New York County based on a forum selection clause contained in the parties’ memorandum of understand. While a forum selection clause providing for the location of a trial is prima… Continue Reading
Union Carbide Corp. v Affiliated FM Ins. Co., Sup Ct, New York County, September 9, 2010, Ramos, J, Index No. 600804/04
Posted in Breach of Contract, Collateral Estoppel, Industry: insurance, Industry: manufacturing, Insurance Coverage, Justice Ramos, Charles E., Known-loss Doctrine, New York, Summary JudgmentIn a September 9, 2010, decision by Justice Ramos in connection with an insurance-coverage dispute between plaintiff-asbestos provider and defendant-insurers, and on cross-motions for summary judgment regarding a loss-of-fortuity exclusion in the related insurance policy, the court, “on weighing the public policy that . . . contracts for insurance based upon a known loss should… Continue Reading
Greenberg v Falco Constr. Corp., Sup Ct, Kings County, September 29, 2010, Demarest , J, Index No. 4267/10
Posted in Accounting, Aiding and Abetting, Breach of Fiduciary Duty, CPLR 3211, Derivative Actions, Fraud, Industry: construction, Industry: real estate, Justice Demarest, Carolyn E., Kings, Limited Liability Companies, Motion to Dismiss, Punitive Damages, Shareholder DisputeIn a September 29, 2010 decision by Justice Demarest, the Court granted a number of motions to dismiss, with leave to replead. The actions stem from a number of closely held corporations owned by two sisters and their mother. One of the sisters alleged that the other sister and her mother were improperly controlling the corporations and… Continue Reading
Star Indus., Inc. v Innovative Beverages, Inc., Sup Ct Nassau County, September 28, 2010, Driscoll, J., Index No. 013306/03
Posted in Contempt, Incarceration, Information Subpoenas, Justice Driscoll, Timothy, Nassau, Restraining Notices, Sanctions, Special RefereeIn a September 28, 2010 decision by Justice Driscoll, the court imposed a fine of $25,000 on non-party respondents for their contumacious conduct in violation of the court’s prior contempt order. In the prior contempt order, Special Referee Thomas Dana found respondents liable for numerous counts of contempt of court based on their failure to answer… Continue Reading
Oakwood Care Ctr., Inc. v Oakwood Operating Co., LLC, Sup Ct, Suffolk County, September 20, 2010, Emerson, J, Index No. 15823/07
Posted in Breach of Contract, Contract Interpretation, Industry: healthcare, Justice Emerson, Elizabeth, Quantum Meruit, Suffolk, Summary JudgmentIn an September 20, 2010, decision by Justice Emerson in connection with plaintiff-seller’s action for breach of an asset-purchase agreement relative to a skilled nursing facility against defendant-buyer, and on defendant’s motion for summary judgment on its counterclaim for reimbursement of certain Medicaid start-up costs, the court denied defendant’s motion finding that the express language… Continue Reading
UFC Aerospace Corp v Barnes, Sup Ct Suffolk County, October 12, 2010, Pines, J, Index No. 18565/10
Posted in Accounting, Breach of Contract, Choice of Law, CPLR 3211, Defamation, Forum non Conveniens, Justice Pines, Emily, Motion to Dismiss, Personal Jurisdiction, Restrictive Covenant, Suffolk, Tortious Interference with Business Relations, Unfair CompetitionIn an October 12, 2010 decision by Justice Pines the Court denied a motion to dismiss for lack of personal jurisdiction or in the alternative to dismiss for forum non conveniens. The dispute arose after an employee of a New York corporation, who worked in Texas, allegedly breached his employment contract and solicited his former employer’s… Continue Reading
MBIA Ins. Corp. v Royal Bank of Can., Sup Ct, Westchester County, Aug. 19, 2010, Scheinkman, J., Index No. 12238/09
Posted in Choice of Law, Contract Interpretation, CPLR 3016, CPLR 3211, Credit Swap, Documentary Evidence, Fraud, Insurance Coverage, Justice Scheinkman, Alan D., WestchesterIn an August 19, 2010 decision by Justice Scheinkman, plaintiff MBIA wrote credit default swap protection for RBC on a super-senior risk of pools of securities. In this action, MBIA claimed that it misunderstood the substantial risks it was insuring and which ultimately came to pass, that MBIA claims was produced by fraud on the part… Continue Reading
Matter of Gordon v Skylink Aviation, Inc., Sup Ct New York County, September 7, 2010, Kapnick, J, Index No. 111401/08
Posted in Attorney Disqualification, Justice Kapnick, Barbara R., New YorkIn a September 7, 2010 decision, Justice Kapnick denied a motion brought pursuant to a special proceeding under Article 75 to disqualify counsel from representing the respondents in an on-going arbitration against Gordon, the movant and complainant in the arbitration. In the arbitration, Gordon alleged that the respondents breached a shareholders agreement and committed fraud…. Continue Reading