In a May 31, 2011 decision by Justice Bransten, the Court denied plaintiff’s motion to sever the issue f damages. The Court had previously granted summary judgment to plaintiff on a claim its negligence claim against one of the defendants. Plaintiff then moved, pursuant to CPLR 603, to sever the issue of damages on its negligence claim… Continue Reading
Monthly Archives: June 2011
Deadlocked Shareholders Lose Bid for Dissolution and Appointment of Temporary Receiver: Babaew v Shteyman
Posted in BCL 1104-a, Breach of Fiduciary Duty, Constructive Trust, Derivative Actions, Dissolution, Industry: healthcare, Justice Bucaria, Stephen A., Nassau, Order to Show Cause, Shareholder Dispute, Temporary Receiver, TROIn a May 18, 2011 decision by Justice Bucaria, the court considered various motions brought by shareholders a nurse staffing company in a derivative action who claimed that the defendants breached fiduciary duties and misappropriated trade secrets by starting a competing business and diverting the corporation’s business. The court found that the corporation’s shareholders were deadlocked… Continue Reading
Court Confirms in Part and Denies in Part the JHO’s Recommendation for the Payment of Attorney’s Fees: 546-552 W. 146th St. LLC v Arfa
Posted in Attorneys' Fees, Confirm Referee Report, CPLR 4403, Indemnification, Industry: real estate, Interest, Justice Ramos, Charles E., Limited Liability Companies, New YorkIn a May 27, 2011 decision by Justice Ramos, the court confirmed in part and rejected in part, pursuant to CPLR § 4003, a special referee’s report recommending that defendants be indemnified for certain legal fees. After the JHO held a two-day evidentiary hearing, at which he was presented with invoices showing block billing and… Continue Reading
Plaintiff Brings Just Enough Evidence to Avoid Dismissal for Lack of Personal Jurisdiction: Atkodes et al v. Pyatetsky et al
Posted in Aiding and Abetting, Conversion, CPLR 302, CPLR 3211, Fraud, Industry: financial services, Justice Demarest, Carolyn E., Kings, Personal Jurisdiction, Unjust EnrichmentIn a June 9, 2011 decision by Justice Demarest the court denied a motion to dismiss based on lack of personal jurisdiction. In coming to that determination the court held that under New York law a plaintiff must only demonstrate a “sufficient start” to finding personal jurisdiction, by demonstrating that facts may exist which would support… Continue Reading
Church and Reverend Denied Reversal of Foreclosure Sale: Flushing Savings Bank v. 509 Rogers LLC
Posted in Foreclosure, Industry: real estate, Justice Hinds-Radix, Sylvia O., Kings, NoticeIn a May 23, 2011 decision by Justice Hinds-Radix the court denied an attempt by tenants of a property to vacate a judgment of foreclosure and sale of a property. The tenants, a church and its reverend, argued that the judgment and sale should be vacated based on excusable default and lack of knowledge of the… Continue Reading
Claim for Real Estate Broker’s Commission Survives Motion to Dismiss: Eastern Consol. Props., Inc. v. Extell Dev. Co.
Posted in Breach of Contract, Brokerage Commission, CPLR 3211, Documentary Evidence, Industry: real estate, Justice Fried, Bernard J., Motion to Dismiss, New York, Quantum Meruit, Unjust EnrichmentIn a March 24, 2011 decision by Justice Fried, the Court decided defendant’s motion to dismiss plaintiff’s complaint seeking recovery of real estate brokerage commission. Specifically, defendant claimed that the breach of contract claim should be dismissed pursuant to CPLR 3211(a)(1) based on documentary evidence, and that the unjust enrichment and quantum meruit claims were duplicative… Continue Reading
Court Enforces Three-Year, Fifteen-Mile Restrictive Covenant on Surgeons’ Medical Practice: Peconic Surgical Group, P.C. v Cervone
Posted in Breach of Contract, Breach of Fiduciary Duty, CPLR 6312, Industry: healthcare, Justice Emerson, Elizabeth, Material Breach, Preliminary Injunction, Restrictive Covenant, Suffolk, Temporary Restraining Order, Unclean HandsIn a June 1, 2011, decision by Justice Emerson, the court granted plaintiff-surgical group’s motion for a preliminary injunction with temporary restraining order enforcing a restrictive covenant in a physician’s employment agreement with defendant-doctors. Noting that “the interests of the employer have enjoyed solicitous consideration by the courts when the restrictive covenant is in an employment… Continue Reading
Legal Malpractice Claims for Failing to Enter Default Judgment Survive Motion to Dismiss: Smith v. Kaplan Belsky Ross Bartell, LLP
Posted in Justice Bucaria, Stephen A., Legal Malpractice, Motion for Leave to Amend, Motion to Compel Discovery, Motion to Dismiss, NassauIn a May18, 2011 decision by Justice Bucaria, the Court considered various motions and cross-motions in a legal malpractice action. The case arose out of an earlier case plaintiffs brought against an accounting firm for negligent misrepresentation. Defendant accounting firm defaulted, but plaintiffs’ law firm (defendants in the current action) failed to enter a default judgment for… Continue Reading
Oral Promise of Personal Liability Insufficient to Warrant Default Judgment on Breach of Contract Claim By General Contractor: Born to Build, LLC v Saleh
Posted in Breach of Contract, Default, Default Judgment, Fraud, Industry: construction, Justice Warshawsky, Ira B., Limited Liability Companies, Nassau, Order to Show Cause, Piercing Corporate Veil, Statute of FraudsIn a May 18, 2011 decision by Justice Warshawsky, the court granted the plaintiff’s motion to enter a default judgment against a defendant on two construction contracts which the defendant breached by failing to pay general contracting fees. However, the court denied the motion as to a third contract on the grounds that the contract… Continue Reading
Car Manufacturer’s Dealer Incentives Violate NY’s Franchised Motor Dealer Act: Audi of Smithtown, Inc. v Volkswagen Group of Am., Inc.
Posted in Declaratory Judgment, Industry: financial services, Justice Pines, Emily, Suffolk, Summary JudgmentIn a May 26, 2011 decision by Justice Pines the Court granted summary judgment to two automobile dealers who successfully argued that an automotive manufacturer’s incentive program was treating newer franchisors better than older franchisors. The Court’s review of two different incentive programs offered through the manufacturer’s captive financial arm provides insight into the relationship between… Continue Reading
Lawyer Who Spent 3.8 Hours Editing a Brief in Support of a Motion to Dismiss Cross-Claims on Behalf of One Defendant Disqualified from Representing Another Defendant in the Same Case: Rodeo Family Enters., LLC v Matte
Posted in Attorney Disqualification, Justice Warshawsky, Ira B., Nassau, Rules Of Professional ConductIn a May, 6, 2011, decision by Justice Warshawsky, the court granted one defendant’s motion to disqualify counsel for another defendant among whom cross-claims were pending. The lawyer in question, who worked on a motion to dismiss some of the cross-claims on behalf of the former defendant, later joined a firm who sought to represent the… Continue Reading
Majority Shareholder Liable for Breach of Fiduciary Duty for Failing to Disclose Sale of Corporation’s Sole Asset to Minority Shareholder: Berger v Pavlounis
Posted in BCL 909, Breach of Fiduciary Duty, Fiduciary Duty, Industry: real estate, Justice Bransten, Eileen, New York, Shareholder Dispute, Summary JudgmentIn an April 14, 2011 decision by Justice Bransten, the court granted the plaintiff’s motion for partial summary judgment on an individual claim asserted in a shareholder derivative action brought by a minority shareholder against a judicially dissolved corporation’s majority shareholder. Because the defendants failed to submit a responsive Rule 19-A Statement, the court deemed all… Continue Reading
Enhanced Expert Witness Disclosure Pilot Program Launched in the Nassau County Commercial Division
Posted in Expert WitnessThe Nassau County Commercial Division is launching a pilot program addressing expert witness disclosures. Participation in the program will be optional. The new disclosures will be pursuant to a “So Ordered” stipulation that the parties are expected to address during the Preliminary Conference. The enhanced disclosures closely follow the Federal Rules of Civil Procedure. For example, pursuant to… Continue Reading
Failure to Join Corporation as Indispensable Party Warrants Dismissal of BCL § 619 Petition: Lindkvist v Honest Ballot Assoc.
Posted in BCL 619, CPLR 3211, Industry: real estate, Joinder Of Indespensible Party, Motion to Dismiss, New York, Order to Show Cause, Shareholder Dispute, Statute of LimitationsIn a decision dated May 24, 2011 by Justice Sherwood, the court dismissed a petition brought by shareholders of a residential housing cooperative pursuant to BCL § 619 challenging the election of directors. The court found that dismissal was warranted under CPLR § 3211(a)(10) because the petitioners failed to notify or join the corporation which was… Continue Reading
Hospital’s Motion For Preliminary Injunction to Enjoin Picketing By Union Denied: Brookdale Univ. Hosp. and Medical Center v. 1199 SEIU United Healthcare Workers East
Posted in CPLR 6301, Industry: healthcare, Justice Hinds-Radix, Sylvia O., Kings, Labor Law Sec. 807, Labor Strike, Picketing, Preliminary InjunctionIn a May 27, 2011 decision by Justice Hinds-Radix, the Court denied the plaintiff hospital’s motion for a preliminary injunction and dismissed the action. The action arose out of a labor dispute between the hospital and its 3,200 employees represented by defendant 1199 United Healthcare Workers East union. The dispute centers around the hospital’s cancellation of the… Continue Reading