In a July 25, 2011, decision by Justice Whelan, the court granted defendant-seller’s motion for summary judgment dismissing plaintiff-buyer’s fraud action and finding for defendant on its counterclaim for breach of contract. Defendant, owner of a large tract of subdivided real estate, sold plaintiff a 20-acre lot on which plaintiff planned to construct a concrete plant. In… Continue Reading
Monthly Archives: August 2011
New York Law Applies to Insurance Dispute, Even Though Accident Happened in Pennsylvania: Aspen Ins. UK Ltd. v East Coast Preserv. Co., LLC
Posted in Choice of Law, Declaratory Judgment, Industry: insurance, Justice Schmidt, David I., Kings, NoticeIn a June 9, 2011 decision by Justice Schmidt, the court denied summary judgment to a building contractor who argued that New Jersey or Pennsylvania law applied to an insurance contract which did not contain a choice of law provision. The litigation arose from a personal injury claim filed by a worker while working on renovations… Continue Reading
Court Find Actions Not “Model” Behavior and Sustains Unfair Competition and Breach of Fiduciary Duty Claims: Men Women NY Model Mgt., Inc. v Ford Models, Inc.
Posted in Aiding and Abetting, Breach of Contract, Breach of Fiduciary Duty, Confidentiality, Industry: advertising, Justice Kapnick, Barbara R., Motion to Dismiss, New York, Tortious Interference with Business Relations, Unfair CompetitionIn an August 15, 2011 decision by Justice Kapnick, the court granted in part and denied in part the defendants’ motion to dismiss. The court upheld the plaintiff modeling agency’s claim for unfair competition which alleged that the defendants, the Ford Modeling agency and several of its employees who were former employees of the plaintiff,… Continue Reading
Small Business Must Litigate Computer Software Dispute in California, Computer Career Center, Inc. v Diamond D, Inc.
Posted in CPLR 3211, Forum Selection Clause, Justice Warshawsky, Ira B., Nassau, Uniform Commercial Code UCC, VenueIn a May 24, 2011 decision by Justice Warshawsky the court granted a motion to dismiss based on a forum selection clause in the parties’ contract which required that the action be brought in California. The dispute arose out of the purchase of computer software by a New York computer training school. After the software was installed… Continue Reading
LLC Managing Member Liable for Transferring Company’s Sole Asset Without the Knowledge or Consent of the 50% Member: Gitlin v Chirinkin
Posted in Breach of Fiduciary Duty, Debtor-Creditor, Fraudulent Transfer, Industry: real estate, Justice Bucaria, Stephen A., Limited Liability Companies, LLC Law 402, Nassau, Notice Of Pendency, Summary JudgmentIn a June 29, 2011 decision by Justice Bucaria, the court granted the plaintiff’s motion for summary judgment on the causes of action for violating NY LLC Law § 402, breach of fiduciary duty, breach of contract, fraud, unjust enrichment, and violation of the Debtor Credit Law . The court determined that the plaintiff established that… Continue Reading
Suit Among Minnesota Companies Brought Under Operating Agreement Governed by Minnesota Law Should Be Litigated in Minnesota: Noah’s Ark Processors, LLC v Parente
Posted in Breach of Contract, Breach of Fiduciary Duty, CPLR 302, CPLR 3211, CPLR 327, Forum non Conveniens, Industry: wholesale, Justice Driscoll, Timothy, Limited Liability Companies, Minimum Contacts, Motion to Dismiss, Nassau, Personal Jurisdiction, Tortious Interference with Business Relations, Trade Secrets, Unfair Competition, Unjust EnrichmentIn a May 6, 2011, decision by Justice Driscoll, the court granted defendants’ motion to dismiss based on forum non conveniens. Plaintiff meat processors/distributers sued various other processors/distributers under an LLC operating agreement and in connection with other allegations of unfair competition, misappropriation, and interference with contractual relations. Virtually every party in the lawsuit was a business… Continue Reading
Court Finds Broker Entitled to 1½% Commission on $20 Million Construction Project Under Theory of Quantum Meruit : Zere Real Estate Servs., Inc. v Parr
Posted in Expert Testimony, Industry: construction, Industry: real estate, Justice Pines, Emily, Quantum Meruit, Suffolk, TrialIn an April 19, 2011, decision by Justice Pines, the court ruled in favor of plaintiff-real estate broker against defendant general contractor after a five-day trial on a claim to recover a finder’s fee under a theory of quantum meruit. At trial, plaintiff presented evidence that she introduced defendant to an area college in connection with… Continue Reading
Court Denies Dismissal for Prior Action Pending and Consolidates Cases for Purposes of Completing Discovery and Trial: Laquila Group v Pure Earth Transp. & Disposal, Inc.
Posted in Consolidation, CPLR 3211, CPLR 602, Industry: construction, Justice Demarest, Carolyn E., Kings, Prior Action PendingIn an August 1, 2011, decision by Justice Demarest, the court denied defendant-subcontractor’s motion to dismiss based on a prior pending action and granted plaintiff-contractor’s cross-motion to consolidate. Plaintiff, an excavation contractor, hired defendant to dispose of material resulting from its excavation of a construction site. Plaintiff terminated defendant “for cause” and sued for breach of contract… Continue Reading
Fraudulent Conveyance Claims Brought Under Debtor and Creditor Law Satisfied the Statutory Requirements and Survived Motion to Dismiss: K.B.K. Huntington Corp. v James Anthony Cleaners
Posted in Debtor-Creditor, Fraudulent Conveyance, Industry: real estate, Justice Warshawsky, Ira B., Motion to Dismiss, Nassau, Piercing Corporate VeilIn a May 16, 2011 decision by Justice Warshawsky, the court denied the defendants’ motion to dismiss the complaint pursuant to CPLR § 3211(a)(7), upon finding that the plaintiff adequately pled causes of action pursuant to the Debtor and Creditor Law. The crux of the plaintiff’s complaint, which sought to recover monies from a previously… Continue Reading
Venue of Action Transferred to New York County – Location of Real Property At Issue in the Litigation: Alpert v Alpert, et al.
Posted in Industry: real estate, Justice Driscoll, Timothy, Nassau, VenueIn a May 3, 2011 decision by Justice Driscoll the court granted defendants’ motion to transfer the action to New York County. The litigation concerned the ownership of a significant number of real properties. A number of family members purchased the various interests in real property beginning in about 1930. The original investors agreed that upon their deaths… Continue Reading
Terminated Employee Cannot State Claim Against Employer for Failure to Pay Discretionary Bonus: Barber v Deutsche Bank Securities, Inc.
Posted in Breach of Contract, Good faith and fair dealing, Industry: financial services, Justice Schweitzer, Melvin L., Motion to Dismiss, New YorkIn a July 14, 2011 decision by Justice Schweitzer, the court granted the defendants’ motion to dismiss the complaint which alleged that after the plaintiff agreed to a temporary two-year assignment in defendant Deutsche Bank Securities, Inc.’s Honk Kong office based on an oral promise that he would receive comparable compensation, his employment was terminated… Continue Reading
Court Revisits Foreclosure Action and Grants Summary Judgment for Unlicensed Foreign Bank: Greystone Bank v 15 Hoover St., LLC
Posted in Banking Law, CPLR 3212, Foreclosure, Guaranty, Industry: banking, Industry: real estate, Justice Driscoll, Timothy, Mortgages, Nassau, Stay Of Proceedings, Summary JudgmentIn a June 22, 2011, decision by Justice Driscoll, the court granted plaintiff-mortgagee’s motion for summary judgment for foreclosure on and possession of the property in question, as well as for foreclosure on plaintiff’s security interests in personal property and recovery of rental proceeds as provided by the mortgage documents. Finding that the mortgage documents and… Continue Reading
Court Finds Corporation Liable for Breaching Employment Agreement But Not its Sole Shareholder: Kleinman v Blue Ridge Foods, LLC
Posted in Breach of Contract, Employment Agreement, Industry: hospitality, Justice Hinds-Radix, Sylvia O., Kings, Labor Law, Piercing Corporate Veil, Summary JudgmentIn a July 7, 2011 decision by Justice Hinds-Radix, the court granted the plaintiff’s motion for summary judgment on his cause of action for breach of an employment agreement and claim under Labor Law § 198, and concluded the plaintiff was entitled to a declaratory judgment that his employment was terminated without cause, upon finding… Continue Reading
Issues of Fact Preclude Summary Judgment on Claims for Breaching Auto Dealer Agreement: Legend Autorama, Ltd. et al v. Audi of Amer., Inc. et al.
Posted in Aiding and Abetting, Breach of Contract, Breach of Fiduciary Duty, Good faith and fair dealing, Industry: franchising, Justice Emerson, Elizabeth, Suffolk, Summary Judgment, Tortious Interference with Business RelationsIn a July 14, 2011 decision by Justice Emerson the court granted partial summary judgment dismissing claims against an automotive executive but finding that issues of fact precluded dismissal against an automotive manufacturer. In 2007 the automotive manufacturer created a new automotive dealership in Suffolk County, that bordered the market area assigned to two existing automotive… Continue Reading
Website Showing Unlicensed Products Cannot Support Common Law Unfair Competition Claim: Versadial Inc. Donaldson
Posted in Industry: manufacturing, Justice Bucaria, Stephen A., Nassau, Tortious Interference with Business Relations, Unfair CompetitionIn a June 24, 2011 decision by Justice Bucaria the court partially granted a motion to dismiss. The lawsuit involved the licensing of patents for dispensing items such as lipstick, sunscreen and certain pharmaceutical products. Plaintiff sublicensed the patents but ran out of money and didn’t pay the royalty fees. Defendants’ position was that the non-payment of the… Continue Reading
Action Against Swimming Pool Installer For Defective Installation is Dismissed: Rush v. Swimming Pools by Jack Anthony, Inc.
Posted in Attorneys' Fees, Breach of Contract, Industry: construction, Justice Warshawsky, Ira B., Nassau, Negligence, Unlicensed Contractor, WarrantyIn an April 25, 2011 decision by Justice Warshawsky, the Court granted defendant’s motion to dismiss all six claims asserted, thus dismissing the action. Plaintiffs had contracted with defendant to install a vinyl swimming pool at plaintiffs’ Water Mill home. Ultimately, the pool was constructed, and plaintiffs complained of various defects. Specifically, plaintiffs complained that the… Continue Reading
Attorney Affirmation in Opposition Utterly Fails To Raise an Issue of Fact or Otherwise Defeat Summary Judgment: General Elec. Capital Corp. v Miron Lbr. Co. Inc.
Posted in Attorneys' Fees, Breach of Contract, Breach Of Guaranty, Contract Of Adhesion, CPLR 3212, Guaranty, Justice Ramos, Charles E., Motion to Strike, New York, Summary Judgment, UsuryIn a July 8, 2011, decision by Justice Ramos, the court granted plaintiff-lender’s motion for summary judgment on its claims for breach of contract and guaranty, as well as dismissed defendant-borrower’s counterclaim and affirmative defenses. Notably, the court began its analysis with a footnote admonishing both parties for violating a practice rule providing that “Memos of… Continue Reading
Court Rejects MBIA’s Claim for Fraudulent Inducement Where it Failed to Conduct its Own Due Diligence: MBIA Ins. Corp. v Credit Suisse Sec. (USA) LLC
Posted in Breach of Contract, Fraud, Industry: insurance, Justice Kornreich, Shirley Werner, Lost Profits, Motion to Dismiss, New York, Punitive DamagesIn a June 1, 2011 decision by Justice Kornreich, the court granted in part and denied in part, the defendants’ motion to dismiss the complaint which arose out of an insurance policy MBIA issued to guarantee payments to a trust that consisted of residential second mortgages and mortgage-backed securities. Plaintiff MBIA alleged that it issued the… Continue Reading