In a September 28, 2010, decision by Justice Driscoll in connection with a foreclosure action by plaintiff-mortgagee, a North Carolina bank, against defendant-mortgagor, a New York limited liability company, and on defendant’s motion to dismiss on grounds that plaintiff was a foreign corporation not licensed to do business in New York and failed properly to… Continue Reading
Monthly Archives: January 2011
Piercing the Corporate Veil Claims Survive Summary Judgment: Utility Audit Group v. Flanagan
Posted in Breach of Contract, Implied Warranty, Industry: real estate, Justice Bucaria, Stephen A., Nassau, Piercing Corporate Veil, Summary JudgmentIn a December 17, 2010 decision by Justice Bucaria, the Court granted in part and denied in part cross-motions for summary judgment. Plaintiff Utility Audit Group (“UAG”) is in the business of consulting with commercial tenants with regard to alleged overcharges by their landlords. Individual defendants were owners of Apple Mac & R Corp., later dissolved by… Continue Reading
Fraud Claim Fails In Light of Express Terms of Marital Divorce Settlement Agreement: TPR Inv. Assoc., Inc. v Fischer
Posted in Fraud, Industry: financial services, Justice Ramos, Charles E., Malpractice, New York, Summary JudgmentIn a December 9, 2010 decision by Justice Ramos, the court dismissed the plaintiff’s fraud claim against the defendant law firm because: (1) the plaintiff could not establish her justifiable reliance on alleged misrepresentations that her ex-husband’s net worth statement was complete in light of a martial divorce settlement agreement which expressly carved out the… Continue Reading
Yellowstone Injunction Not Available Where Party Served with Statutory Prerequisite to Summary Nonpayment Proceeding Rather Than Notice to Cure: Gerald Gardner Wright, P.C.. & Assoc. v Champion Prop. Mgt., LLC
Posted in Commercial Real Property, Contempt, Contempt of Court, Default, Industry: real estate, Justice Driscoll, Timothy, Motion to Amend, Nassau, Necessary Joinder of Parties, Yellowstone InjunctionsIn a November 23, 2010 decision by Justice Driscoll the Court denied plaintiff’s motion for a Yellowstone Injunction and motion for a default judgment. The Court also granted Plaintiff’s motion for civil contempt, to the extent of holding a hearing on the issue and granted Plaintiff’s motion to amend to add a necessary party. The parties dispute… Continue Reading
Default Judgment Stands in Light of Proper Service and No Meritorious Defense to CPLR 3213 Motion: Brooklyn Fed. Sav. Bank v 140 W. Assoc., LLC, Sup Ct, Kings County, December 17, 2010, Demarest, J, Index No 28267/09
Posted in Default, Industry: financial services, Justice Demarest, Carolyn E., Kings, Personal Jurisdiction, Service of ProcessIn a December 17, 2010 decision by Justice Demarest, the court denied the defendants’ motion to vacate a default judgment it after the defendants’ failure to comply with the court’s order to serve and file an opposition to the plaintiff’s motion for summary judgment in lieu of a complaint by a date certain. The court rejected… Continue Reading
Court Grants Motion for Summary Judgment in Lieu of Complaint Based on Guaranty: GSO RE Onshore LLC v Sapir
Posted in CPLR 308, CPLR 318, CPLR 3211, CPLR 3213, Guaranty, In lieu of Complaint, Industry: construction, Justice Fried, Bernard J., Motion to Dismiss, Motion to Supplement the Record, New York, Personal Jurisdiction, Service of Process, Summary Judgment, Summary Judgment in lieu of Complaint, WaiverIn a November 24, 2010, decision by Justice Fried in connection with an action by plaintiff-lender against defendant-guarantor to recover under a personal guaranty after a default on a construction loan, the court granted plaintiff’s motion for summary judgment in lieu of complaint and denied defendant’s cross-motion to dismiss for lack of personal jurisdiction. The court… Continue Reading
Claim Against Homeowners’ Insurers for Additional Living Expenses for Constructive Eviction Denied: Granirer v. The Bakery, Inc.
Posted in Declaratory Judgment, Insurance Coverage, Justice Kapnick, Barbara R., New York, SettlementIn a September 20, 2010 decision by Justice Kapnick, plaintiffs had moved for an order declaring that their homeowners’ policies obligated the insurance carriers to reimburse for alternate housing and increased living expenses incurred by reason of their constructive eviction. The parties had resolved, in 2006, the dispute though a settlement agreement providing for reimbursement. The Agreement… Continue Reading
Failure to Oppose Summary Judgment With Evidence Dooms Reargument Motion: Archstone v Tocci Bldg. Corp. of N.J., Inc.
Posted in CPLR 3211, Expert Reports, Industry: construction, Justice Warshawsky, Ira B., Motion to Reargue, NassauIn at September 23, 2010 decision by Justice Warshawsky the Court granted leave to reargue and adhered to its prior determination granting one of the third-party defendants dismissal of the claims against it. The litigation was brought because water infiltration discovered after the completion of a large apartment complex. The general contractor brought third party claims against… Continue Reading
Stipulation of Settlement Vacated for Failure to Record Power of Attorney: Webb v Smith
Posted in EPTL 13-2.3, Industry: real estate, Justice Kapnick, Barbara R., Motion to Reargue, New YorkIn an October 12, 2010 decision by Justice Kapnick, the court granted a motion to reargue a motion to confirm a Special Referee’s report. Following a two-day hearing, the Special Referee found that a valid power of attorney existed and recommended that the court reinstate a previously vacated stipulation of settlement which ended litigation grounded… Continue Reading
Affiant’s Health Issues at the Time of Original Dismissal Motion Justify Submission of Evidence of Lack of Standing on Later Renewal Motion: Koenig v Koenig
Posted in BCL 1104, BCL 626, Breach of Fiduciary Duty, CPLR 1206, CPLR 2221, CPLR 3211, Deadlock, Demand Futility Doctrine, Derivative Actions, Dissolution, Industry: technology, Justice Driscoll, Timothy, Motion to Dismiss, Motion to Reargue, Motion to Renew, Nassau, ReceivershipIn a September 17, 2010, decision by Justice Driscoll in connection with a post-dissolution derivative action on behalf of a microscope-servicing company, and on defendant’s motion for leave to renew his motion to dismiss for lack of standing based on an affidavit from the company’s receiver affirming that plaintiff failed to make a demand on… Continue Reading
Complaint Dismissed For Lack of Personal Jurisdiction and Failure to Adequately Plead Claims: MediaXposure Ltd. (Cayman) v Omnireliant Holdings, Inc.
Posted in Aiding and Abetting, Breach of Fiduciary Duty, CPLR 3211, Industry: retail, Justice Fried, Bernard J., New York, Personal JurisdictionIn an October 25, 2010 decision by Justice Fried the Court granted dismissal of claims against defendants for lack of personal jurisdiction and failure adequately plead causes of action for adding and abetting a breach of fiduciary duty and unjust enrichment. The litigation stemmed from the alleged looting of a dissolved British company in the infomercial… Continue Reading
Court Applies English Common Law Regarding Derivative Claims and Dismisses Complaint for Lack of Standing: CMIA Partners Equity Ltd. v O’Neill
Posted in Breach of Fiduciary Duty, Corporate Waste, CPLR 3211, CPLR 4511, Derivative Actions, Foreign Corporation, Foreign Law, Fraud, Fraud on the Minority, Industry: financial services, Judicial Notice, Justice Kornreich, Shirley Werner, New York, StandingIn a November 22, 2010, decision by Justice Kornreich in connection with a derivative action on behalf of an investment fund by plaintiff-shareholders against the fund’s board of directors for wrongfully commencing a lawsuit that allegedly caused the fund to incur substantial legal fees and exposed it to potential liabilities, and on defendant-directors’ motion to… Continue Reading
Attorney’s Knowledge of Relevant Facts Does Not Justify Disqualification: Carltun on the Park, Ltd. v Weitzman
Posted in Attorney Disqualification, Industry: hospitality, Justice Warshawsky, Ira B., NassauIn a November 29, 2010 decision by Justice Warshawsky, the court denied the defendants’ motion to disqualify the plaintiff’s counsel. Although it was uncontroverted that the plaintiff’s attorney, who had represented the plaintiff for 15 years, would likely be called as a witness at trial and possessed relevant information concerning the underlying transaction at issue,… Continue Reading
Defective Summons with Notice Leads to Sua Sponte Dismissal: Blumendale Rd. Judgement Recovery v. Wise
Posted in CPLR 305, Default Judgment, Industry: Transportation, Justice Demarest, Carolyn E., Kings, Summons with NoticeIn an October 13, 2010 decision by Justice Demarest, the Court dismissed, sua sponte, eleven out of twelve actions brought by plaintiff by way of Summons with Notice. The twelve actions were brought to collect on debts owed for truck leases. Plaintiff moved for default judgments on all twelve. The Court, in examining the Summonses with Notice, concluded… Continue Reading
Claim Over Employment Contract Proceeds Based On Possible Modification And Waiver: Gates v Long Is. Women’s Health Care Assoc., P.C.
Posted in Breach of Contract, Contract Interpretation, CPLR 3211, Good faith and fair dealing, Industry: healthcare, Insurance Coverage, Justice Driscoll, Timothy, Motion to Amend, Motion to Dismiss, NassauIn an October 8, 2010 decision by Justice Driscoll the Court denied a motion to dismiss and granted a motion to amend. Plaintiff, a medical doctor, was a former employee of Defendants. Pursuant to Plaintiff’s employment contract during the term of her employment she was to maintain “occurrence” medical malpractice insurance, and Defendants were to pay for… Continue Reading