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Monthly Archives: February 2011

Claims by Joint Venturers Not Listed in LLC Operating Agreement Allowed to Proceed, Shapsis et al. v Kogan et al.

By Aaron Zerykier on Posted in Breach of Contract, Breach of Fiduciary Duty, CPLR 3211, Industry: real estate, Joint Venture Dispute, Justice Demarest, Carolyn E., Kings, Motion to Dismiss, Res Judicata

In a January 7, 2011 decision by Justice Demarest the court allowed claims by alleged joint venturers who were not parties to an LLC operating agreement to proceed. The litigation stemmed from a venture formed for the development of a commercial building. Two of the plaintiffs were not signatories to the operating agreement for the LLC which… Continue Reading

Claim for Rescission of Patent Assignment Agreement Fails Due to Reliance on Parol Evidence and Belief Agreement Was a License: Ark Patent Int’l, LLC v Tarksol Int’l, LLC

By Hilary A. Frommer on Posted in Assignment, Industry: pharmaceutical, Justice Fisher, Kenneth R., Licensing, Monroe, Rescission, Summary Judgment

In a December 11, 2009 decision by Justice Fischer, the court found that the defendants established prima facie that a patent Exclusive License Agreement constituted an assignment, and not a license, based on: (a) provisions defining the transfer as a “sale, assignment, and transfer in full … for any and all current and future rights… Continue Reading

Court Dismisses Conversion and Civil Conspiracy Claims on Pre-Answer Motion: Bahiri v Madison Realty Capital Advisors, LLC

By Matthew D. Donovan on Posted in Breach of Contract, Business tort, Civil Conspiracy, Conversion, CPLR 3211, Duplicative Cause of Action, Fraudulent Transfer, Industry: real estate, Justice Fried, Bernard J., Motion to Dismiss, New York

In a December 23, 2010, decision by Justice Fried, the court granted defendants’ motion to dismiss plaintiff’s conversion and civil conspiracy claims based on failure to state a cause of action. Plaintiff, a withdrawing member of defendant-LLC, alleged that defendants failed fully to redeem his membership interest and breached the related redemption agreement and promissory note… Continue Reading

Agreement to Agree Bars Breach of Contract Claim: Anschel v Neurology Assoc. of Stony Brook

By Hilary A. Frommer on Posted in Breach of Contract, Employment Agreement, Estoppel, Industry: healthcare, Justice Pines, Emily, Suffolk, Summary Judgment

In a December 14, 2010 decision by Justice Pines, the court granted the defendant’s motion for summary judgment and dismissed the complaint in its entirety upon finding that the defendant established prima facie that the employment letter agreement from the defendant to the plaintiff setting forth the plaintiff’s starting salary and addressing the possibility of… Continue Reading

Court Allows Amendment of Complaint Even Though It Changes the Named Plaintiff and Adds New Causes of Action: Glaze Inc. v Coach Choice Apparel, Inc.

By Aaron Zerykier on Posted in Breach of Contract, Industry: wholesale, Justice Sherwood, O. Peter, Limited Liability Companies, Motion to Amend, New York

In a July 1, 2010 decision by Justice Sherwood, the Court granted plaintiff’s motion to amend the complaint to change the name of a party and to add additional allegations and also granted one of the defendants’ motions to dismiss. The original plaintiff in the action was a wholesaler of novelty items. The defendants were the purchaser… Continue Reading

Court Denies Preliminary Injunction to Block Competitor’s Use of Domain Names: Goldstar Props. Of NY, LLC v Blackstone Props. Of NY, LLC

By Hilary A. Frommer on Posted in General Business Law 349, Industry: real estate, Justice Sherwood, O. Peter, New York, Preliminary Injunction, Unfair Competition

In an April 12, 2010 decision by Justice Sherwood, the court denied the plaintiffs’ motion for a preliminary injunction to block their competitor from using certain internet domain names. The plaintiffs alleged that the defendants’ registration of several domain names that were similar to plaintiffs’ business names, violated General Business Law § 349, New York Civil… Continue Reading

Court Determines Arbitration Award Not Sufficiently Final and Definite and Sends Valuation Dispute Back to Arbitrator: Johnson v Caputo

By Matthew D. Donovan on Posted in Arbitration, Arbitration Award, Confirming Arbitration Award, Industry: real estate, Justice Sherwood, O. Peter, New York, Valuation, Valuation Date

In a June 28, 2010, decision by Justice Sherwood, the court denied respondent’s motion to confirm an arbitration award in connection with a dispute over the valuation of a condominium apartment. The arbitrator determined in his award that the final buyout amount would be subject to and offset by, among other things, certain credits related to… Continue Reading

Yellowstone Appropriate Where Commercial Tenant Would Otherwise Lose a Valuable Leasehold, Canal Furniture Corp. v Harrison

By Aaron Zerykier on Posted in Forum, Industry: real estate, Justice Kitzes, Orin R., Queens, Yellowstone Injunctions

In a December 21, 2010 decision by Justice Kitzes the court granted a commercial tenant a Yellowstone Injunction, and transferred the case to New York County because it was improperly commenced in Queens County. The litigation stemmed from the commercial tenancy. The tenant exercised its right to purchase the property and shortly thereafter the landlord started issuing… Continue Reading

Complaint in Action for Goods Sold and Delivered Dismissed Against Individual, Since Piercing Corporate Veil Not Established: Lecce Penn Co., S.P.A. v. Adrenaline Marketing & Promotions, Inc.

By James M. Wicks on Posted in Fraud, Goods Sold and Delivered, Justice Pines, Emily, Piercing Corporate Veil, Quantum Meruit, Suffolk, Summary Judgment, Unjust Enrichment

In a July 27, 2010 decision by Justice Pines, plaintiff sued corporate and individual defendants for recovery of amounts due for goods sold and delivered to defendant in the amount of $317,294.87. The Complaint alleged claims for goods sold and delivered, fraudulent inducement, unjust enrichment, quantum meruit and punitive damages. Individual defendant Adam Cohen answered and… Continue Reading

Receiver Allowed to Sell Corporation’s Property At Private Sale: Matter of Darvish v Haslacha, Inc.

By Hilary A. Frommer on Posted in BCL 1206, CPLR 2221, Justice Schweitzer, Melvin L., New York, Receiver

In a January 19, 2011 decision by Justice Schweitzer, the court granted the motion by the court appointed permanent receiver of the dissolved corporation to sell the corporation’s real property at a negotiated private sale, pursuant to BCL §1206(b)(2). Although the court had directed the receiver to sell the property at a public auction, the court… Continue Reading

Claims By Insured Against Insurance Broker for Late Notice to Carrier Survive Summary Judgment: Sorbara Constr. Corp. v. Romeo

By James M. Wicks on Posted in Breach of Contract, Breach of Fiduciary Duty, Contribution, CPLR 1401, Equitable Estoppel, Good faith and fair dealing, Industry: construction, Industry: insurance, Justice Warshawsky, Ira B., Nassau, Statute of Limitations, Summary Judgment

In a December 8, 2010 decision by Justice Warshawsky, the Court considered the parties’ motions for summary judgment in an action brought by a contractor against its retail insurance broker. The action was brought against the broker based upon an excess carrier’s disclaimer of coverage because of late notice.   Although defendants did not dispute they had… Continue Reading

Jim Beam Wins Liability Against Cuervo: Jim Beam Brands Co. v Tequila Cuervo La Rojena S.A. De C.V.

By Hilary A. Frommer on Posted in Breach of Contract, Industry: food and beverage, Justice Lowe, Richard B. III, Material Breach, New York, Summary Judgment

In a January 27, 2011 decision by Justice Lowe, the court found that defendant Tequila Cuervo was liable for breaching a 1997 agreement with Jim Beam which resolved a dispute pending before the U.S. Patent and Trademark Office concerning Tequila Cuervo’s unauthorized use of Jim Beam’s trademarked “crow” design. The court granted summary judgment on… Continue Reading

Court Refuses to Pierce Corporate Veil and Disposes of Various Business Torts and Quasi-Contract Claims as Duplicative of Claim for Breach of Contract: J.E.K.A., Inc. v Maggie & Faith Flowers, Inc.

By Matthew D. Donovan on Posted in Actual Confusion, Breach of Contract, Business tort, Duplicative Causes of Action, General Business Law 360, Implied Covenant of Good Faith and Fair Dealing, Industry: retail, Justice Emerson, Elizabeth, Legal Malpractice, Piercing Corporate Veil, Restrictive Covenant, Suffolk, Summary Judgment, Tortious Interference with Business Relations, Trade Secrets, Trademark Dilution, Trademark Infringement, Unfair Competition, Unjust Enrichment

In a November 16, 2010, decision by Justice Emerson in connection with an action by plaintiff-buyer against defendant-sellers relative to the sale of a flower shop alleging breach of contract and various business torts, and on the parties cross-motions for summary judgment, the court 1) granted defendants’ motion dismissing the claim for breach of contract… Continue Reading

Court Allows the Use of Statistical Sampling to Prove Liability and Damages, MBIA Ins. Corp. v. Countrywide

By Aaron Zerykier on Posted in Breach of Contract, Damages, Fraud, Industry: banking, Justice Bransten, Eileen, New York

In a December 22, 2010 decision by Justice Bransten the court allowed the plaintiff to use statistical sampling to present evidence on liability and damages on its causes of action sounding in fraud and breach of contract. The litigation stemmed from mortgage backed securities sold by Countrywide and its affiliates.  Defendants first argued that the motion,… Continue Reading

Jersey Shore’s JWoww Gets Injunction Barring Use of Photos and Videos Taken of Her: Lippolis v. Farley

By James M. Wicks on Posted in Arbitration, Civil Rights Law Sec. 50, 51, Justice Brown, Jeffrey S., Nassau, Preliminary Injunction

Although not venued in the Commercial Division, in a decision by Justice Brown, the Court granted defendant Jennie “JWoww” Farley’s motion for a preliminary injunction.   Plaintiff brought an action against JWoww for breach of contract, claiming he took photographs of her throughout their relationship for both personal pleasure and professional use.   Plaintiff took nude and… Continue Reading

Special Referee’s Report Concluding Documents Not Privileged or Work Product Upheld: Archstone v. Tocci Bldg.Corp. of N.J., Inc.

By James M. Wicks on Posted in Attorney Work Product, Attorney-Client Privilege, Industry: construction, Justice Warshawsky, Ira B., Nassau, Special Referee

In a December 20, 2010 decision by Justice Warshawsky, the Court reviewed the decision of Special Referee, Michael Cardello III, in a construction litigation. Special Referee Cardello concluded that two documents, inadvertently produced by plaintiffs, were not protected either by attorney client or work product doctrine.  The documents at issue are the handwritten notes of an… Continue Reading

Court Finds No Authority to Order Either Party to Pay Expenses Related to Producing Expert Witnesses for Deposition but Indicates Preference that Party Seeking Discovery Bear the Burden: Maniscalco v Couri

By Matthew D. Donovan on Posted in Costs / Fees / Expenses, CPLR 3101, CPLR 3116, Deposition, Discovery, Examination Before Trial, Expert Reports, Expert Witness, Industry: public relations, Justice Bransten, Eileen, New York

In a December 1, 2010, decision by Justice Bransten in connection with an action to recover damages stemming from an alleged breach of contract and various business torts, and on plaintiff’s motion to compel defendants to pay fees related to the production of plaintiff’s expert witness for a deposition, the court denied the motion finding… Continue Reading

Plaintiff Fails to Establish Right to Default Judgment: Lius Group Intl. Endwell, LLC v HFK Intl., Inc.

By Hilary A. Frommer on Posted in Default

In a September 16, 2010 decision by Justice Driscoll, the court denied the plaintiff’s motion for reargument of its failed motion for a default judgment. In denying the plaintiff’s initial application, the court determined that the plaintiff failed to establish prima facie causes of action for fraud, breach of contract, and piercing the corporate veil,… Continue Reading

Lack of Employment Contract Dooms Commission Claim and Requires Return of Commission Overpayments: Clifford v Remco Maintenance, LLC et al

By Aaron Zerykier on Posted in Breach of Contract, CPLR 3212, Industry: construction, Justice Kitzes, Orin R., Queens, Summary Judgment

In a December 1, 2010 decision by Justice Kitzes, the Court, on summary judgment, dismissed all of plaintiff’s claims and granted defendant summary judgment on its claim against the plaintiff for overpayment of commissions.  Plaintiff brought his claims for allegedly unpaid commissions. Plaintiff, however, did not have a written employment agreement with his employer. Nor did he… Continue Reading