The Commercial Division of Kings County welcomes Justice Sylvia O. Hinds-Radix. Click here for part and chambers information for Justice Hinds-Radix. The New York County Commercial Division welcomes Justice Jeffrey K. Oing. Click here for the practices and procedures in Part 48. Justice Thomas Whelan joins the Suffolk County Commercial Division. Click here for information for Part 33.
Monthly Archives: April 2011
Court Interprets Agreement as One to Pay Finder’s Fee Rather than Assignment Fee and Rejects Argument Based on Lack of Assignable Interest: Blatt v Ashkenazi
Posted in Assignment, Breach of Contract, Finder's Fee, Industry: real estate, Justice Bucaria, Stephen A., Nassau, Oral Agreement, Statute of Frauds, Summary Judgment, Unjust EnrichmentIn a December 2, 2010, decision by Justice Bucaria, the court decided the parties’ cross-motions for summary judgment in connection with a commercial real estate deal. Plaintiff-real estate broker sued defendant-buyers for breach of an agreement to pay a finder’s fee. Arguing that he agreed to pay an assignment fee rather than a finder’s fee, the individual… Continue Reading
Restaurateurs Liable for Damages to Contractor Convinced to Accept an Ownership Interest in Lieu of Payment Owed: Deriggi v Brady, et al
Posted in Breach of Contract, Fraud, Good faith and fair dealing, Industry: hospitality, Justice Kornreich, Shirley Werner, New YorkIn an April 7, 2011 decision by Justice Kornreich the Court partially granted plaintiff’s motion for summary judgment. Plaintiff performed construction and related work for a restaurant. The defendants convinced plaintiff to accept an ownership interest in the restaurant in lieu of the money he was owed for the work. The defendants also convinced plaintiff to make cash… Continue Reading
Subcontractor’s Claims Under Lien Law Can Proceed as a Class Action: Access Plumbing Corp. v. 1184 Brighton Dev., LLC
Posted in Breach of Contract, Class Action, Construction Contract, Industry: construction, Justice Demarest, Carolyn E., Kings, Lien Law, Mechanic's Lien, Motion for Leave to Amend, Service of ProcessIn an April 14, 2011 decision by Justice Demarest, the Court considered plaintiff’s motion to amend the complaint brought under the Lien Law by a subcontractor who performed plumbing work on a multi-unit condominium building in Brooklyn. Plaintiff moved to amend the complaint and to request the court to waive the numerosity requirement under CPLR 901… Continue Reading
Court Denies Default Motion On Fraud Claim But Suggests Piercing Claim As Alternative: Kin & Ann Realty Inc. v Renzulli
Posted in Breach of Contract, Breach of Fiduciary Duty, Consumer Protection, Conversion, CPLR 3215, Deceptive Business Practices, Duplicative Cause of Action, Fraud, General Business Law 349, Industry: construction, Justice Warshawsky, Ira B., Misrepresentation, Nassau, Piercing Corporate Veil, Restitution, Unjust EnrichmentIn a March 16, 2010, decision by Justice Warshawsky, the court granted in part and denied in part plaintiff-owner’s motion for default after defendant-contractor failed to answer the complaint. Plaintiff’s action arose out of a contract to construct a building on its property, under which defendant allegedly failed to perform its obligations. Because plaintiff had submitted a… Continue Reading
Court Extends Judicial Comity to Decision by Canadian Court and Dismisses Complaint by Carl Ichan; Ichan v Lions Gate Entertainment Corp.
Posted in Breach of Contract, Comity, Foreign Jurisdiction, Industry: entertainment, Justice Sherwood, O. Peter, Motion to Dismiss, New York, Res Judicata, Shareholder Dispute, Tortious Interference with Business RelationsIn a March 30, 2011 decision by Justice Sherwood, the Court extended judicial comity to a decision by a British Columbia court dismissing a complaint by Carl Icahn against the Lions Gate Entertainment Corp. that asserted claims of shareholder oppression and breach of fiduciary duty, and dismissed the complaint brought in New York County which… Continue Reading
Religious Corporation Law May Bar Action to Foreclose on Promissory Note, Daniel Perla Assoc., LP v Cathedral Church of St. Lucy
Posted in Breach of Promissory Note, Justice Driscoll, Timothy, Nassau, Summary Judgment in lieu of ComplaintIn a March 21, 2011 decision by Justice Driscoll the Court denied plaintiff’s motion for summary judgment in lieu of complaint and granted defendant’s cross motion to transfer the litigation from Nassau County to Kings County. The action arose out of a mortgage and promissory note encumbering church property. The church failed to make payments. Plaintiff (and his… Continue Reading
Motion to Dismiss Claim Based on Breach of Recapitalization Agreement Denied: Bryanston Group, Inc. v. Empire Resorts, Inc.
Posted in Breach of Contract, Documentary Evidence, Industry: Gaming and Casino, Justice Kornreich, Shirley Werner, New York, Preliminary Injunction, Recapitalization AgreementIn a March 28, 2011 decision by Justice Kornreich, the Court denied defendant’s motion to dismiss a breach of contract complaint. The action arose out of a recapitalization agreement between defendant Empire Resorts (“Empire”), and two of its preferred shareholders, plaintiffs Bryanston Group, Inc. and Stanley Tollman. Plaintiffs claimed that Empire breached the recapitalization agreement and sought… Continue Reading
Cannot Use Judgment in Lieu of Complaint When Note Is Part of a Larger Transaction: Delmastro v Rescue Carting Corp. and Diesso
Posted in CPLR 3213, Industry: construction, Judgment in Lieu of Complaint, Justice Pines, Emily, SuffolkIn a March 22, 2011 decision by Justice Pines the Court denied a motion under CPLR 3213 for summary judgment in lieu of complaint and allowed the defendant to submit an answer. The plaintiff moved for judgment based on a note and guaranty which were provided as part of a sale of a business. The loans payments… Continue Reading
Law Firm Loses Bid to Maintain a Special Turnover Proceeding against Adversary Firm: Scher Law Firm v Flemming Zulack Williamson Zauderer LLP
Posted in Another Action Pending, CPLR 5225, Debtor-Creditor, Fraud, Fraudulent Transfer, Justice Demarest, Carolyn E., Kings, Motion to DismissIn a March 22, 2011 decision by Justice Demarest, the court dismissed a special turnover proceeding commenced by one law firm against another pursuant to CPLR § 5225(b), on the grounds that the action was duplicative of other actions pending by the same plaintiffs who were represented by the petitioner firm, against the same parties,… Continue Reading
Out of State Depositions Not Necessary for Prosecution of Derivative Action Not Permitted and Complaint Dismissed: Lubel v Shiloach
Posted in CPLR 3108, Depositions, Derivative Actions, Industry: retail, Justice Bucaria, Stephen A., Motion to Dismiss, Nassau, Preliminary InjunctionIn a March 2, 2011 decision by Justice Bucaria, the court denied the plaintiff’s motion pursuant to CPLR § 3108 to conduct an out of state deposition of a Maryland limited liability company which, the plaintiff alleged, had entered into an agreement with the defendants to compete against the company which the plaintiff and defendants… Continue Reading
Beach Club Cabana Not Covered Under Homeowner’s Insurance As “Premises Occasionally Rented to an Insured”: Raner v Security Mutual Insurance Co.
Posted in Industry: insurance, Insurance Coverage, Justice Sherwood, O. Peter, New YorkIn a February 14, 2011 decision by Justice Sherwood the Court granted summary judgment to an insurance carrier dismissing claims brought by a person injured at a beach club cabana rented by the insurance carrier’s customer. The plaintiff was injured at the cabana in September 2005. The plaintiff initially brought an action against the renter of… Continue Reading
Injunctive Relief Regarding Collateral Granted Where Default Under Loan Agreement Not Disputed: East W. Bank v Jung Sun Laundry Group Corp.
Posted in Breach of Contract, Breach of Promissory Note, CPLR 6301, CPLR 6311, CPLR 6312, CPLR 7102, Dissolution, Industry: banking, Justice Kitzes, Orin R., NY UCC 9-609, Order of Seizure, Preliminary Injunction, Queens, Standing, Undertaking, Uniform Commercial Code UCCIn a December 15, 2010, decision by Justice Kitzes, the court granted Plaintiff’s request for a preliminary injunction in connection with an application for an order of seizure. Plaintiff-lender sought injunctive relief prohibiting Defendant-borrower from transferring any of the collateral under the parties’ loan agreements until judgment is obtained and the loan paid in full. The collateral… Continue Reading
Conditional Order of Discovery Enforce, Reply to Counterclaims Stricken and Liability in Favor of Defendant Entered: 23KT Gold Collectibles, LTD. v. Daily News, LP
Posted in Breach of Contract, Conditional Order, CPLR 3103, CPLR 3122, Disclosure, Discovery, Justice Fried, Bernard J., New York, Protective OrderIn a March 24, 2011 decision by Justice Fried, the Court considered defendant’s motion to strike plaintiffs’ reply to counterclaims, based upon plaintiffs’ failure to comply with a conditional order of discovery. Plaintiffs, in turn, filed a cross-motion, pursuant to CPLR 3103, for a protective order. The case arose out of a contractual dispute between plaintiffs… Continue Reading
Court Denies Plaintiff Leave to Bring Claims Against Former and Current Counsel: 360 W. 11th St. LLC v ACG Credit Co. II, LLC
Posted in Industry: legal, Judiciary Law § 487, Justice Bransten, Eileen, Motion to Amend, New YorkIn an August 2, 2010 decision by Justice Bransten, the court denied the plaintiff’s motion pursuant to CPLR § 3025 for leave to amend the complaint a second time to add new parties and causes of action. The plaintiff sought to add a claim under the New York Judiciary Law § 487 against the defendants’ prior… Continue Reading