In a February 15, 2011 decision by Justice Warshawsky, the Court granted the motion of plaintiff for a default judgment against two of the defendants. Plaintiff and defendant Sand Lane Title Agency (“Sand Lane”) entered into an agreement in 2005, by which Sand Lane agreed to issue title insurance policies on behalf of plaintiff. Defendant Aleksandr Polyakov… Continue Reading
Monthly Archives: March 2011
Potentially Embarrassing Medical Information Not Enough to Warrant Sealing of Complaint: Cronin v Harris
Posted in — 22 NYCRR 216, Declaratory Judgment, Dissolution, Good Cause, Industry: legal, Injunctive Relief, Justice Driscoll, Timothy, Nassau, Order to Show Cause, Sealing Court RecordsIn a March 1, 2011, decision by Justice Driscoll, the court granted plaintiff’s motion to file his complaint under seal. Plaintiff-partner in a law practice with his father and sister brought an action for judicial dissolution of the firm and sought leave to file the complaint under seal in order to protect his father’s medical condition… Continue Reading
Based on NJ Law, Court Allows Claims to Proceed Against a Bank for Moneys Stolen By Employee: DMDB Adults Inc. and DMDB Kids Inc. v. Bank of American Corp. d/b/a Bank of America
Posted in Breach of Contract, Breach of Fiduciary Duty, Conversion, Industry: banking, Justice Kapnick, Barbara R., New York, Summary Judgment, Uniform Commercial Code UCCIn an October 7, 2010 decision by Justice Kapnick the Court granted partial summary judgment to the defendant bank on claims brought by a customer stemming from the customer’s employee’s cashing forged checks. The former employee cashed almost $1 million of checks from two different corporate bank accounts. Citing New Jersey law, the Court granted the… Continue Reading
Court Denies Motion to Compel Arbitration Due to Lack of Condition Precedent: Red Hook Meat Corp. v Bogopa-Columbia, Inc.
Posted in Compel Arbitration, Industry: real estate, Justice Demarest, Carolyn E., Kings, WaiverIn a March 15, 2011 decision by Justice Demarest, the court denied the plaintiff’s motion for an order compelling arbitration because the plaintiff failed to comply with a condition precedent. The plaintiff sought arbitration to determine whether the defendant unreasonably withheld consent to a sublease under the parties’ lease agreement. The court found that the… Continue Reading
Purchase Price for Interests in Company Subject to Valuation Is Sufficiently Certain to Form Enforceable Contract: Nigro v Owen Logistics LLC
Posted in Agreement to Agree, Breach of Contract, Conversion, CPLR 3016, CPLR 3211, Documentary Evidence, Duplicative Cause of Action, Failure to State a Claim, Fraud, Industry: Transportation, Justice Bucaria, Stephen A., Misrepresentation, Motion to Dismiss, Nassau, Specific Performance, Unjust EnrichmentIn a February 14, 2011, decision by Justice Bucaria, the court granted in part and denied in part defendants’ motion to dismiss. Plaintiff-buyer sued defendant-LLC members for breach of contract and specific performance in connection with the purchase of their interests in two logistics companies. Defendants moved to dismiss based on documentary evidence and failure to state… Continue Reading
Plaintiff Not Entitled to Possession of Real Property After Executing Reassignment of Lease and Eviction Warrant Issued: C&D Car Wash, Inc. v Mroczkowski
Posted in Industry: real estate, Justice Pines, Emily, Motion to Reargue, Preliminary Injunction, SuffolkIn a February 8, 2011 decision by Justice Pines, the court denied the plaintiff’s motion for leave to renew and reargue its denied motion for a preliminary injunction upon concluding that the plaintiff failed to demonstrate that the court overlooked or misapprehended any matter of fact or law. The gravamen of the reargument and renewal… Continue Reading
Court Reads Clear Condition Precedent to Coverage In Owner Controlled Insurance Policy: Zurich Am. Ins. Co. v Illinois Natl. Ins. Co.
Posted in Breach of Contract, Condition Precedent, Construction Contract, Contract Interpretation, CPLR 3212, Declaratory Judgment, Estoppel, Indemnification, Industry: construction, Industry: insurance, Justice Fried, Bernard J., New York, Summary JudgmentIn a December 23, 2010, decision by Justice Fried, the court granted defendant’s motion for summary judgment and denied plaintiff’s cross-motion for the same relief. Plaintiff-subcontractor and its carrier sued defendant-general liability insurer for coverage under an “owner controlled insurance policy” (OCIP). Defendant had declined coverage due to plaintiff’s failure to obtain a written subcontract and to… Continue Reading
LLC Dissolved Pursuant to Service of 60 Days Written Notice: Matter of Fassa
Posted in Dissolution, Industry: real estate, Justice Bucaria, Stephen A., Limited Liability Companies, NassauIn a February 1, 2011 decision by Justice Bucaria, the court held that the limited liability company of which the plaintiff was a 1/3 member was dissolved on September 18, 2010, which was 60 days after the plaintiff served the other members with a 60 days written notice terminating the LLC’s operating agreement and dissolving… Continue Reading
Court Allows Fourth Amendment to Complaint Adding New Parties and New Claims: Holtkampet et al. v Parlex Assoc. et al.
Posted in Aiding and Abetting, Breach of Fiduciary Duty, Constructive Fraud, Failure to Plead with Particularity, Fraud, Industry: real estate, Justice Demarest, Carolyn E., Kings, Legal Malpractice, Motion to AmendIn a February 22, 2011 decision by Justice Demarest the Court allowed the plaintiffs to file a fourth amended complaint and a supplemental summons. The litigation stemmed from a sale of a commercial building. It was alleged that one of the defendants improperly enriched himself when the building was sold through a “wrap around mortgage.” After filing… Continue Reading
Default Judgment Denied and Complaint Dismissed Based on Defective Service of Process and Res Judicata: Goldman v Rio
Posted in Bankruptcy, Default, Industry: legal, Justice Warshawsky, Ira B., Nassau, Res Judicata, Service of ProcessIn a February 14, 2011 decision by Justice Warshawsky, the court denied the plaintiff’s motion for a default judgment on the grounds that service of process was defective. The affidavit of service showed that service of process did not comply with CPLR § 308(2), which provides that service may be effectuated by leaving the summons… Continue Reading
Court Finds Seinfeld Master of Children’s Cookbook Domain and Dismisses Slander and Misappropriation Suit: Lapine v Seinfeld
Posted in Breach of Contract, Copyright, CPLR 3211, Defamation, Implied-in-Fact Contract, Industry: entertainment, Industry: Publishing, Misappropriation, Motion to Dismiss, New York, Novelty, Preemption, SlanderAlthough not venued in the Commercial Division, in a February 23, 2011, decision by Justice Friedman, the court granted defendants’ motion to dismiss with prejudice. Plaintiff published a cookbook of healthy-food recipes for children. After defendant-publisher later released a similar cookbook written by defendant-Seinfeld’s wife, plaintiff brought suit alleging that defendant-publisher wrongfully used her idea for a… Continue Reading
Court Declines Issuing Injunction Barring Doctor from Opening Office 50 Feet from His Former Employer’s Office: Atul Chokshi Physician P.C. v Patel
Posted in Breach of Contract, Breach of Fiduciary Duty, Industry: healthcare, Justice Driscoll, Timothy, Nassau, Preliminary InjunctionIn a August 27, 2010 decision by Justice Driscoll the Court declined to grant injunctive relief which, among other things, would have barred a doctor from (i) operating a medical office within feet of his former employer’s medical practice, (ii) coming within 3000 feet of his former medical practice and (iii) soliciting patients from that… Continue Reading
Court Refrains from Entering Judgment Against Defaulting Defendants Due to Plaintiff’s Failure to Establish Viable Cause of Action: Cook v Kim
Posted in Breach of Contract, CPLR 3215, Default, Justice Driscoll, Timothy, NassauIn a December 22, 2010, decision by Justice Driscoll, the court denied plaintiff’s motion for a default judgment. Plaintiff invested nearly $600,000 in various real estate business ventures under three separate agreements with defendants. Plaintiff later commenced a foreclosure action and separately alleged multiple causes of action in law and equity against the individual defendants, including breach… Continue Reading
Fraud Claim Based on Falsely Notarized Document Dismissed: Saleh Holdings Group, Inc. v Chernov
Posted in CPLR 3016, Fraud, Guaranty, Industry: financial services, Justice Fried, Bernard J., Motion to Dismiss, New YorkIn a January 31, 2011 decision by Justice Fried, the court dismissed the plaintiff’s claims for fraud and aiding and abetting fraud which were based on allegations that the defendant notarized a signature on a guaranty knowing that the purported signatory did not sign the document because: (1) the plaintiff failed to satisfy the pleading… Continue Reading
Judgment Granted Against Former Employee Who Admitted to Theft in Criminal Proceeding and Against Family Who Benefited from Theft: Visual Arts Foundation, Inc. v. Egnasko
Posted in Aiding and Abetting, Faithless Servant, Fiduciary Duty, Fraud, Industry: not-for-profit, Justice Sherwood, O. Peter, New YorkIn a February 8, 2011 decision by Justice Sherwood the court granted summary judgment to a foundation who sued a former employee, and his wife and father, based on the employee’s admitted theft. In opposition to the motion the employee argued that the foundation was guilty of unclean hands because it knew about his theft and… Continue Reading
Arbeeny v Kennedy Executive Search, Inc.
Posted in Accounting, CPLR 308-b, CPLR 3211, Hague Convention, Industry: staffing, Justice Bransten, Eileen, Motion for Leave to Amend, New YorkIn a January 14, 2011 decision by Justice Bransten, the Court was faced with a series of motions to dismiss for lack of personal jurisdiction, as well as for failure to timely serve the complaint pursuant to CPLR 306-b. Plaintiff also moved for leave to amend and for an accounting. The complaint alleges that defendants… Continue Reading
Appointment of Receiver at Beginning of Case Unwarranted Upon Insufficient Showing of Necessity to Conserve Funds: Kerin v Premium Pursuit Consulting Corp., LLC
Posted in Accounting, Breach of Contract, Breach of Fiduciary Duty, Industry: insurance, Joint Venture Dispute, Justice Driscoll, Timothy, Legal Malpractice, Limited Liability Companies, Nassau, Order to Show Cause, Receiver, Tortious Interference with Business RelationsIn a December 10, 2010 decision by Justice Driscoll the court vacated a temporary restraining order and denied a preliminary injunction seeking the appointment of a receiver. The litigation stemmed from a joint venture between the parties for a business that assisted in lowering employers’ workman’s compensation premiums. Plaintiff accused his partners of secretly transferring all of… Continue Reading
Evidence of Corporate Informalities and Fraudulent Transfer Bars Summary Judgment on Shareholder’s Entitlement to Stock Certificate and Transferability of Shares: Tulino v Tulino
Posted in BCL 508, Breach of Fiduciary Duty, Corporate Formalities, CPLR 3025, CPLR 3124, CPLR 3211, CPLR 3212, Derivative Actions, Discovery, Failure to State a Claim, Industry: real estate, Justice Bucaria, Stephen A., Lack of Capacity, Motion for Leave to Amend Pleadings, Motion to Compel Discovery, Motion to Dismiss, Nassau, Restraint on Alienation, Shareholder Dispute, Summary JudgmentIn a December 2, 2010, decision by Justice Bucaria, the court denied defendant-50% shareholder’s motion to dismiss but granted his motion to compel discovery. The court also denied plaintiff-50% shareholder’s motion for summary judgment but granted him leave to amend the complaint. Plaintiff entered into an agreement with a third party to sell his interest in defendant-corporation,… Continue Reading
2.3% Shareholder Lacks Standing to Seek Dissolution Under BCL §1104-a: Klauss v MacDonald
Posted in BCL 1104-a, Dissolution, Justice Pines, Emily, SuffolkIn a February 9, 2011 decision by Justice Pines, the court dismissed the petitioner’s cause of action for dissolution pursuant to BCL §1104-a on the grounds that the petitioner failed to satisfy his burden and establish that he was a 20% shareholder, as required in order to commence a special proceeding for dissolution. The court… Continue Reading