In an October 27, 2010 decision by Justice Driscoll, petitioners moved for an Order, pursuant to CPLR Art. 75, to dismiss or, in the alternative, to stay, the underlying arbitration brought by respondent before AAA. Respondent was employed by one of the petitioners, pursuant to which the parties entered into a Deferred Compensation Plan. The Plan contained… Continue Reading
Monthly Archives: December 2010
Action Against Competitor Dismissed for Failure to Adequately Plead Business Tort Elements: Wayne Thomas Salon, Inc. v Moser
Posted in Business tort, CPLR 3211, Failure to Plead with Particularity, Failure to State a Claim, Industry: beauty, Interference with Prospective Advantage, Justice Kapnick, Barbara R., Motion to Dismiss, New York, Non-compete, Non-solicitation, Tortious Interference with Business Relations, Unfair Competition, Unjust EnrichmentIn an October 12, 2010, decision by Justice Kapnick in connection with an action between two hair salons in which plaintiff alleged various business torts relative to the resignation of a stylist from plaintiff’s salon and the subsequent hiring of that same stylist by defendant’s salon, and on defendant’s motion to dismiss for failure to… Continue Reading
Contract’s Merger Clause Bars Fraud Claims Based On Alleged Misrepresentations: Casano v New 19 W. LLC et al
Posted in Breach of Contract, Contract Interpretation, Industry: real estate, Justice Bransten, Eileen, New York, Rescission, Summary JudgmentIn an October 18, 2010 decision by Justice Bransten, the Court granted Defendant summary judgment dismissing the complaint. The parties’ dispute arose out of a contract for the sale of a condominium loft. Plaintiff refused to close on sale and brought claims for rescission and fraud, seeking the return of his deposit, claiming that he was misled… Continue Reading
Breach of Contract Claim Fails Where Conditions Precedent Not Satisfied: Brady v. VIL Realty LLC
Posted in Breach of Contract, CPLR 2215, Escrow Agreement, Industry: real estate, Justice Demarest, Carolyn E., KingsIn an October 29, 2010 decision by Justice Demarest, the court dismissed a breach of contract claim which sought specific performance of an escrow agreement contained in a real estate contract of sale. The court found that under the plain language of the contract, the plaintiff was not entitled to release of escrow funds because… Continue Reading
Pleadings Struck and Fees Awarded Due to “Willful and Contemptuous” Conduct: Carnegie Assoc., LTD. v Miller
Posted in Alternative Dispute Resolution, CPLR 3126, Justice Lowe, Richard B. III, Mediation, Motion to Strike, New York, Sanctions, Willful and ContemptuousIn an October 19, 2010, decision by Justice Lowe in connection with plaintiff-insurance consultant’s action against defendant-founding shareholder alleging disloyal and unlawful conduct, and on defendant’s motion for sanctions under CPLR 3126, the court granted defendant’s motion, finding that plaintiff’s past examples of “unnecessary and perhaps egregious delay” for which the court already had imposed… Continue Reading
Referee’s Valuation Report Confirmed: Matter of Abraham v Hanhui Lu
Posted in BCL 1118, Industry: distribution, Justice Kapnick, Barbara R., New York, ValuationIn a November 10, 2010 decision by Justice Kapnick, the court in connection with a dissolution proceeding, denied the respondent’s motion to reject certain aspects of the Special Referee’s Report which determined the valuation of the petitioner’s interest in the subject company. Turning to the well settled-law that “New York courts will look with favor… Continue Reading
Pre-Suit Demand in Derivative Action Not Met: Security Police & Fire Professionals of Am. Retirement Fund v Mack
Posted in Business Judgment Rule, Demand Futility Doctrine, Derivative Actions, Duty of Loyalty, Fiduciary Duty, Industry: financial services, Justice Kornreich, Shirley Werner, New York, Unjust Enrichment, WasteIn a December 9, 2010 decision by Justice Kornreich, the Court dismissed a derivative action brought by shareholders of Morgan Stanley, against Morgan Stanley and its executive officers and directors. The complaint sought damages for compensation that Morgan Stanley paid and planned to pay its employees from the years 2006, 2007 and 2009. Plaintiffs alleged claims of… Continue Reading
Summary Judgment on a Corporate Guaranty Granted, But Denied as to Personal Guaranty: Colarossi v. Daly
Posted in Guaranty, Industry: construction, Justice Warshawsky, Ira B., Nassau, Summary JudgmentIn an August 3, 2010 decision by Justice Warshawsky the Court granted a motion for summary judgment on a corporate guaranty, but denied summary judgment as to a personal guaranty, stemming from the purchase of a truck with a cesspool vacuum tank. In 2003, both the corporation and its principal guaranteed the monthly payments for… Continue Reading
New Commercial Division Justice in Kings County
Posted in KingsThe Commercial Division of Kings County welcomes Justice Robert J. Miller. Click here for a link to the forms and practices for Part Comm. 4 and Part 62.
Fraudulent Conveyance Claim Extinguished: BPLY, LLC v. Winder, Inc.
Posted in Bankruptcy, CPLR 3211, Debtor-Creditor, Fraudulent Conveyance, Fraudulent Transfer, Justice Ramos, Charles E., New YorkIn a December 1, 2010 decision by Justice Ramos, the Court granted defendant’s motion to dismiss the fraudulent conveyance claim asserted by plaintiff. In BPLY, Inc., plaintiff, a fashion sales agent for defendants, claimed that the individual defendants (principals of the defendant entity), engaged in a series of fraudulent conveyances. The defendant entities filed voluntary bankruptcy petitions… Continue Reading
Twenty Year Old “Letter Agreement” is an Enforceable Contract, Not an Agreement to Agree: Martin v Southern Container Corp.,
Posted in Breach of Contract, Contract Interpretation, Good faith and fair dealing, Industry: manufacturing, Justice Pines, Emily, Motion to Amend, Suffolk, Summary Judgment, Unjust EnrichmentIn an October 19, 2010 decision by Justice Pines the court partially granted defendants’ motion for summary judgment. The parties’ dispute arose from a twenty year old “letter agreement” which outlined plaintiff’s employment terms with defendant. Plaintiff alleged that defendant breached the contract by not assigning him all of his father’s accounts when his father retired and… Continue Reading
Failure to Show Viable Cause of Action Bars Default Judgment: Long Is. Med. & Gastroenterology Assoc., P.C. v Lligam Assoc., Inc.
Posted in Breach of Contract, CPLR 3215, Damages, Default, Gross Negligence, Industry: healthcare, Industry: staffing, Justice Driscoll, Timothy, Nassau, Piercing Corporate VeilIn an October 26, 2010, decision by Justice Driscoll in connection with plaintiff-medical services provider’s action against defendant-staffing agency for breach of contract and gross negligence, and on plaintiff’s motion for a default judgment under CPLR 3215, the court denied the motion without prejudice, finding that plaintiff’s failure to provide the court with the underlying… Continue Reading
Claim to Set Aside Property Conveyance Fails For Lack of Notice: Del Pozo v Impressive Homes
Posted in Industry: real estate, Justice Kitzes, Orin R., Notice Of Pendency, Queens, Summary JudgmentIn a September 28, 2010 decision by Justice Kitzes, the Court granted the defendants’ motion for summary judgment and dismissed the complaint which sought specific performance of a real estate contract and to set aside a conveyance of real property. The plaintiff argued that he filed a Notice of Pendency on March 2004, but admitted… Continue Reading
Trystate Mech., Inc. v Tefco, LLC, Sup Ct, Kings County, October 6, 2010, Demarest, J, Index No. 7343/10
Posted in Justice Demarest, Carolyn E., Kings, Motion to Dismiss, Successor LiabilityIn an October 6, 2010 decision, Justice Demarest denied the defendant’s motion to dismiss the complaint which asserted that it could not be liable to the plaintiff under the theory of successor liability. The plaintiff had initially contracted with Chapeau Inc. whereby Chapeau agreed to provide electrical power and thermal energy through Cogen Systems at two… Continue Reading
Givati v Air Techniques, Inc., Sup Ct, Nassau County, Oct. 27, 2010, Driscoll, J, Index No. 000234/09
Posted in Breach of Contract, Industry: technology, Justice Driscoll, Timothy, Motion to Dismiss, Nassau, Order to Show Cause, Subject Matter JurisdictionIn an October 27, 2010, decision by Justice Driscoll in connection with plaintiff-consultant’s action against defendant-manufacturer for breach of contract, and on defendant’s motion to dismiss brought on by order to show cause on the ground that the court lacked jurisdiction to decide the case, the court denied defendant’s order to show cause, finding that… Continue Reading
Elizabeth Arden, Inc. and FD Management, Inc. v Abelman, Frayne & Schwab, et al., Sup Ct New York County, October 22, 2010, Fried, J, Index No. 603778/05
Posted in Industry: legal, Justice Fried, Bernard J., Malpractice, New YorkIn an October 22, 2010 decision by Justice Fried the court dismissed a number of malpractice claims arising from plaintiff’s failure to timely pay a patent renewal fee. Plaintiff alleged that this failure was due to the legal malpractice of its attorneys. Of note, this failure occurred over the course of a number of years and while… Continue Reading
Klenosky v. David Lerner Assoc., Inc., Sup Ct, Nassau County, October 28, 2010, Bucaria, J., Index No. 007367/08
Posted in Breach of Contract, Collusion, CPLR 3211, Forgery, Fraud, Industry: financial services, Industry: insurance, Justice Bucaria, Stephen A., Misrepresentation, Nassau, Statute of Limitations, Summary JudgmentIn an October 28, 2010 decision by Justice Bucaria, the Court considered motions to dismiss the complaint for failure to state a claim and statute of limitations. The case arises out of plaintiff’s exchange of a whole life insurance policy issued by United States Life Insurance Company for a Flexible Premium Variable Universal Life insurance policy issued… Continue Reading