In a May 2, 2011 decision by Justice Oing the Court dismissed a number of the “standard” affirmative defenses pled in a mechanic’s lien/breach of contract action. The defendants’ affirmative defense that “complaint fails to state a cause of action” was allowed to survive as “mere surplusage.” The defendants’ affirmative defense that “the plaintiff was paid… Continue Reading
Monthly Archives: May 2011
Failure to Attach Rule 19-a Statement Does Not Doom Motion: North River Restaurant LLC v Paratore et al.
Posted in CPLR 3212, Fraud, Industry: entertainment, Justice Bransten, Eileen, Misrepresentation, Motion to Amend, New York, Summary Judgment, Unjust EnrichmentIn a March 28, 2011 decision by Justice Bransten the Court denied plaintiff’s motion to amend and partially granted defendants’ motion for summary judgment. The case arose from a leasing dispute over a restaurant. Defendant Paratore originally operated a restaurant in New York City. After his restaurant went out of business plaintiffs sought to open a new restaurant… Continue Reading
Court Enjoins Christie’s from Selling 17th Century Painting Where Ownership is Disputed: Kozar v Christie’s, Inc.
Posted in CPLR 7109, Industry: Art, Justice Scheinkman, Alan D., Order to Show Cause, Ordinary Course of Business, Preliminary Injunction, Uniform Commercial Code UCC, WestchesterIn a May 18, 2011 decision by Justice Scheinkman, the court granted the plaintiffs’ application for a preliminary injunction under CPLR § 7109 which sought to enjoin Christie’s, Inc. from selling at auction an original 17th century painting which the plaintiffs claimed belonged to and was stolen from them. The plaintiffs argued that the defendants… Continue Reading
Court Grants Motion to Strike Phrase “Sham Small Group Companies” from Pleading as Gratuitous and Designed to Inflame: AJS Agency, Inc. v Empire HealthChoice, HMO, Inc.
Posted in Breach of Contract, Conspiracy to Commit Fraud, Counterclaims, CPLR 3019, CPLR 3024, CPLR 3211, Fraud, Impleader, Industry: insurance, Justice Driscoll, Timothy, Motion to Dismiss, Motion to Strike Scandalous and Prejudicial Matter, Nassau, Third-Party ActionIn a March 29, 2011, decision by Justice Driscoll, the court granted in part and denied in part plaintiffs’ motion to dismiss defendant’s third-party summons and counterclaims. Plaintiffs-insurance brokers sued defendant-insurer for wrongful termination under insurance producer agreements between them. Defendant counterclaimed and impleaded a number of additional third-party defendants by way of summons, alleging that plaintiffs… Continue Reading
Pending Appeal of Similar Action Leads to Dismissal Under CPLR 3211(a)(4): American Express Travel Related Services Co., Inc. v Zalmen Reiss Assoc.
Posted in Another Action Pending, Breach of Contract, CPLR 3211, Industry: financial services, Justice Demarest, Carolyn E., Kings, Motion to Dismiss, Pending Appeal, Sanctions, Termination of ActionIn a May 17, 2011 decision by Justice Demarest, the court granted the defendant’s motion to dismiss pursuant to CPLR § 3211(a)(4) on the grounds that there was another action pending between the parties. Prior to the commencement of the instant action, American Express SE brought suit against the defendant for breach of contract, alleging… Continue Reading
Summary Judgment Granted Against Guarantors of Corporate Obligations: Capitol One, N.A. v Alarm Warehouse LLC et al.
Posted in CPLR 3213, Industry: banking, Justice Pines, Emily, Suffolk, Summary Judgment in lieu of ComplaintIn an April 29, 2011 decision by Justice Pines the Court granted summary judgment in lieu of a complaint against personal guarantors of corporate obligations. The case stemmed from two loans made by North Fork Bank to a business. The business defaulted on the loans and the successor-bank, Capitol One, brought suit to collect. The individual defendants opposed… Continue Reading
Court Grants Preliminary Injunction and Declares the Enforceability of a Restrictive Covenant to be an Arbitrable Issue: National Arbitration and Medication, Inc. v Olsen
Posted in Arbitration, Compel Arbitration, Industry: wholesale, Justice Driscoll, Timothy, Nassau, Order to Show Cause, Preliminary Injunction, Restrictive Covenant, TROIn an April 5, 2011 decision by Justice Driscoll, the court granted the petitioner’s motion brought by order to show cause for a preliminary injunction, extended a TRO previously entered which enjoined the respondent from, inter alia, providing ADR services within 50 square miles of petitioner’s NY office, and ordered the parties to arbitrate the… Continue Reading
Court Grants Summary Judgment in Lieu of Complaint on Personal Guarantee Based on Texas Default Judgment: Steves & Sons, Inc. v Pottish
Posted in Breach of Contract, Conversion, Default, Forum Selection Clause, Guaranty, Industry: legal, Justice Emerson, Elizabeth, Personal Jurisdiction, Suffolk, Summary Judgment in lieu of ComplaintIn a May 11, 2011, decision by Justice Emerson, the court granted plaintiff-manufacturer’s motion for summary judgment in lieu of complaint against defendant-wholesaler in connection with a personal guarantee executed by defendant in favor of plaintiff. Defendant guaranteed his wholesale company’s purchase of doors manufactured by plaintiff in Texas under a sales credit agreement. After defendant became… Continue Reading
Shorter Period of Limitations in Contract Unreasonable Where Internal Dispute Procedure Deprived Plaintiff of Course of Action: Structural Contr. Servs., Inc. v URS Corp. – NY
Posted in Account Stated, Alternative Dispute Resolution, Arbitration, Breach of Contract, Condition Precedent, CPLR 3211, CPLR 3212, Industry: construction, Justice Scheinkman, Alan D., Motion to Dismiss, Summary Judgment, WestchesterIn an April 4, 2011, decision by Justice Scheinkman, the court considered cross motions to dismiss and for summary judgment in connection with a waterproofing job at the former Shea and Yankee Stadiums. The parties, plaintiff-contractor and defendant-subcontractor, agreed to a shorter, six-month statute-of-limitations period within which to assert contract-related claims. The court found that the shorter… Continue Reading
Sanctions Awarded Against Counsel Who Refused to Submit Opposition to Motion to Dismiss: Toikach v. Basmanov
Posted in CPLR 3025, CPLR 3211, Justice Demarest, Carolyn E., Kings, Motion to DismissIn a February 25, 2011 decision by Justice Demarest the Court awarded sanctions against a lawyer who refused to submit opposition to a motion to dismiss, arguing that his service of an amended answer with counterclaims mooted the motion. The motion in question was the plaintiff’s second motion to dismiss. Plaintiff’s first motion to dismiss was… Continue Reading
Court Vacates Notice of Pendency on Property Owned By Real Estate Venture: Ostad v Nehmadi
Posted in Industry: real estate, Justice Fried, Bernard J., New York, Notice Of Pendency, PartnershipIn an April 8, 2011 decision by Justice Fried, the court granted the defendants’ motion pursuant to CPLR § 6501 to vacate a notice of pendency. The plaintiff formed an “Enterprise” with the defendants to engage in real estate ventures and specifically alleged in the complaint that the title to the real property was held on… Continue Reading
Notice of Pendency Remains in Effect in Action by Bank to Cancel a Previously Issued Satisfaction of Mortgage: Citimortgage, Inc. v. McNeil
Posted in Industry: real estate, Justice Hinds-Radix, Sylvia O., Kings, Mortgages, Notice Of PendencyIn a January 25, 2011 decision by Justice Hinds-Radix, the Court denied non-party Geneva Alston’s motion to cancel a notice of pendency recorded by plaintiff, and to permanently discharge a mortgage recorded against the real property. The case arises out of defendant McNeil’s purported transfer of a residential parcel of property located in Brooklyn. Upon the… Continue Reading
Commercial Landlord Has No Duty to Mitigate Damages: 231-239 W. 39th St. Assoc. v. Ulu Inc. and Ulu
Posted in Commercial Lease, Good faith and fair dealing, Industry: real estate, Justice Oing, Jeffrey K., New York, Personal Jurisdiction, Unjust EnrichmentIn a March 4, 2011 decision by Justice Oing the Court granted a commercial landlord summary judgment on its claim for rent against the guarantor of a lease. The tenant vacated the premises owing rent. The landlord re-let the premises (even though it did not have an obligation to do so) and sought from the principal/guarantor the… Continue Reading
Service of Process on Israeli Defendants Proper Under the Hague Convention: Sbarro, Inc. v Tukdan Holdings, Ltd.
Posted in Default, Hague Convention, Justice Emerson, Elizabeth, Motion to Dismiss, Service of Process, SuffolkIn an April 28, 2011 decision by Justice Emerson, the court denied the defendants’ motion to dismiss the complaint for defective service of process on the grounds that the service was proper under the Hague Convention. The plaintiff personally served the defendants, an Israeli corporation and an Israeli resident, by mailing copies of the summons… Continue Reading
Court Dismisses CPLR 3213 Motion for Lack of Subject Matter Jurisdiction Based on Plaintiff’s Failure to Serve and File Summons: Giaquinto v Long Island Rubbish Removal E. Corp.
Posted in CPLR 2001, CPLR 3211, CPLR 3213, Justice Emerson, Elizabeth, Motion to Dismiss, Subject Matter Jurisdiction, Suffolk, Summary Judgment, Summary Judgment in lieu of Complaint, Waivable DefectIn a May 2, 2011, decision by Justice Emerson, the court dismissed defendant’s motion for summary judgment in lieu of complaint for lack of subject matter jurisdiction. Defendant moved under CPLR 3213 but failed to serve and file the summons with its accompanying motion papers. Because it is the service and filing of the summons that invokes… Continue Reading
Court Upholds Law on Brokers’ Limited Duties Toward Insurers Finding No Special Relationship Between the Parties: Consolidated Bus Transit, Inc. v The Treiber Group
Posted in Breach of Fiduciary Duty, CPLR 3211, CPLR 3212, Fraud, Fraudulent Concealment, Industry: insurance, Justice Schmidt, David I., Kings, Misrepresentation, Motion to Dismiss, Negligence, Special Facts Doctrine, Summary JudgmentIn an April 22, 2011 decision by Justice Schmidt, the court granted defendant-insurance brokers’ motion for summary judgment dismissing plaintiff-employers’ complaint. Defendants placed plaintiffs into a worker’s compensation self-insurance program that ultimately became insolvent, resulting in plaintiffs being assessed by the Worker’s Compensation Board more than $2.5 million as a participant in the program. Plaintiffs sued asserting… Continue Reading
Party Held in Contempt for Litigation Brought by Wife: L&R Exploration Venture v Grynberg
Posted in Agent, Arbitration, Confirming Arbitration Award, Contempt, Contempt of Court, Industry: Energy, Joint Venture Dispute, Justice Sherwood, O. Peter, Knowledge, New York, Permanent Injunction, Personal JurisdictionIn an April 19, 2011 decision by Justice Sherwood, the court held respondent Grynberg in contempt of court for violating the court’s prior order of April 1, 2005 enjoining him or anyone acting on his behalf from initiating or prosecuting an action in any court relating to the joint venture agreement between the parties. Grynberg… Continue Reading
Motion to Quash Third Party Subpoenas Denied: Gilani v Kumar
Posted in CPLR 2304, CPLR 3101, Derivative Actions, Discovery, Justice Driscoll, Timothy, Nassau, Shareholder Dispute, Subpoena duces tecumIn a March 29, 2011 decision by Justice Driscoll, the court denied the defendants’ motion to quash amended subpoenas duces tecum served by the plaintiff on non-party HSBC Bank seeking the disclosure of personal and corporate bank records for the defendant corporation, of which the plaintiff was a minority shareholder, and the individual defendant, who was… Continue Reading