While not from the Commercial Division, an August 24, 2011 decision by Justice York raises issues of a landlord’s responsibility for actions of tenants which disturb other tenants. In this case the plaintiff sued alleging that pop icon Madonna, who owned the apartment below her, was playing her music for 1.5 to 3 hours a day… Continue Reading
Monthly Archives: September 2011
Plaintiff Fails to Maintain Claims for Fraud or Recision of Contract: Hampton Transp. Ventures, Inc. v JD Transp., LLC
Posted in Breach of Contract, Breach of Fiduciary Duty, Fraud, Industry: Transportation, Joint Venture Dispute, Justice Whelan, Thomas, Limited Liability Companies, Motion to Dismiss, Suffolk, Unjust EnrichmentIn an August 8, 2011 decision by Justice Whelan, the court dismissed the majority of the plaintiff’s claims against corporate and individual parties, which arose out of two agreements in which the plaintiff purchased certain assets and liabilities of a bus transportation business and formed a separate joint venture limited liability company for the purpose… Continue Reading
Court Upholds Allegations of Officer Misconduct after Resignation Finding that Fiduciary Duties Survive the Fiduciary Relationship: First Games Publ. Network, Inc. v Afonin
Posted in Accounting, BCL 717, BCL 720, Breach of Contract, Breach of Fiduciary Duty, CPLR 214, CPLR 3016, CPLR 3211, Industry: entertainment, Industry: technology, Justice Bransten, Eileen, Motion to Dismiss, New York, Statute of LimitationsIn an August 12, 2011, decision by Justice Bransten, the court denied defendant-former officer’s motion to dismiss plaintiff-computer game developer’s action for breach of contract and breach of fiduciary duty. Plaintiff developed an internet-based computer game and hired a consulting company to help develop the software for the game. Plaintiff sought to purchase the software… Continue Reading
Allegedly Defamatory Statements Fail to Support Tortious Interference Claim: Amaranth LLC et al. v. J.P. Morgan Chase & Co. et al
Posted in Industry: financial services, Nassau, Summary Judgment, Tortious Interference with Business RelationsIn an August 3, 2011 decision by Justice Sherwood the court granted defendants summary judgment dismissing a tortious interference with a potential contract claim, the final cause of action remaining in the case. The litigation stemmed from a number of last minutes deals attempting to save a failing hedge fund. Plaintiffs alleged that comments made by defendants’… Continue Reading
Court Seals Record of Settled Case to Protect Anonymity and Foster Purpose of Settlement Agreement: Doe v Szul Jewelry, Inc.
Posted in Industry: advertising, Justice Kornreich, Shirley Werner, New York, Seal RecordsIn an August 4, 2011 decision by Justice Kornreich, the court granted the plaintiff’s motion to seal the entire record of the action which was resolved via settlement. The plaintiff commenced the action as “Jane Doe”, alleging that the defendants utilized film footage of the plaintiff shot as part of an advertisement for the defendant’s products… Continue Reading
Derivative Claims Brought on Behalf of an LLC Cannot Be Intermingled with Individual Claims: Waxman Real Estate LLC v Sacks
Posted in Breach of Contract, Breach of Fiduciary Duty, Compel Arbitration, CPLR 3016, CPLR 3211, CPLR 6301, CPLR 7503, Demand Futility Doctrine, Derivative Actions, Fraud, Industry: real estate, Justice Fried, Bernard J., Limited Liability Companies, LLCL 409, LLCL 414, Motion to Dismiss, New York, Unjust EnrichmentIn a September 7, 2011, decision by Justice Fried, the court granted in part defendant-LLC members’ motion to dismiss and denied their motion to compel arbitration. The court also denied plaintiff-investors’ cross-motion for injunctive relief under CPLR 6301, as well as for an order under LLCL 414, removing the defendants from a real estate investment company. In… Continue Reading
Impaired Right of Subrogation Entitles Insurer to Summary Judgment and Return of Advance Payment to Insured: Alpha Packaging Indus. Inc. v CNA Ins.
Posted in Industry: insurance, Insurance Coverage, Justice Kitzes, Orin R., Queens, Summary JudgmentIn a March 7, 2011 decision by Justice Kitzes, the court granted defendant CNA Insurance Co.’s motion for summary judgment on its counterclaim seeking the return of $60,000 advanced to the plaintiff insured and dismissed the complaint. The plaintiff brought a breach of contract action after CNA rejected the plaintiff’s insurance claim for business interruption… Continue Reading
Use of Fictitious Names for Invoicing May Support a Piercing Claim but Does Not Constitute Fraud: FSA Fortex, AB v Universal Exports, Inc.
Posted in Breach of Contract, Contract Interpretation, Fraud, Industry: manufacturing, Justice Pines, Emily, Piercing Corporate Veil, Punitive Damages, Suffolk, Summary JudgmentIn a July 26, 2011, decision by Justice Pines, the court granted in part and denied in part defendant-sellers’ motion for summary judgment dismissing plaintiff-buyer’s causes of action alleging breach of contract, piercing the corporate veil, fraud, and punitive damages. The parties entered into a contract for the provision of a variation of pulp for making… Continue Reading
Contracts Do Not Contain Condition Precedent to Accelerating Loan: Prompt Mortgage Providers of North America LLC v. Direct Realty, L.L.C. et al.
Posted in Condition Precedent, CPLR 3211, Industry: financial services, Justice Oing, Jeffrey K., New York, Summary JudgmentIn an August 8, 2011 decision by Justice Oing the court granted plaintiffs partial summary judgment on a motion for a judgment of foreclosure. The plaintiffs served a default notice and brought suit seeking the entire principal due under a note at the default rate of 24% per annum. The defendants moved to dismiss arguing that plaintiffs… Continue Reading
Counsel Cannot Represent Both LLC and Its Members Due to Conflict of Pecuniary Interests: Big Brows LLC v Devitt
Posted in Attorney Disqualification, Conflict of Interest, Industry: entertainment, Industry: hospitality, Justice Demarest, Carolyn E., Kings, Limited Liability Companies, Prima Facie TortIn an August 12, 2011, decision by Justice Demarest, the court granted defendant-LLC member’s motion to disqualify counsel for plaintiffs-LLC and its other individual members, and granted plaintiffs’ cross-motion to dismiss defendant’s counterclaim for prima facie tort. Defendant formed a company for purposes of opening a salon and bar with the individual plaintiffs as managing members. The… Continue Reading
No Sanctions for Sending Tenant Three Day Notice to Cure After Court Issues Yellowstone Injunction: Fucile v. L.C.R. Development, Ltd.
Posted in Breach of Contract, Commercial Real Property, Industry: real estate, Justice Bucaria, Stephen A., Nassau, Yellowstone InjunctionsIn an August 12, 2011 decision by Justice Bucaria the court partially granted a motion to dismiss and denied a cross motion for sanctions. The litigation stems from a commercial lease which was assigned to the current tenant. The landlord served the tenant with a notice to cure for failure to pay rent. The tenant then brought a… Continue Reading
Court Finds Insurance Broker Had Legitimate Interest in Protecting Goodwill and Upholds Breach of Contract Action Concerning Non-Compete: Group Health Solutions, Inc. v Smith
Posted in Breach of Contract, Industry: insurance, Insurance Coverage, Justice Bransten, Eileen, Motion to Dismiss, New York, Non-compete, Non-solicitation, Tortious Interference with Business RelationsIn an August 5, 2011 decision by Justice Bransten, the court denied the defendants’ motion to dismiss the breach of contract claim which alleged that defendant Smith, a former employee of the plaintiff insurance broker, breached a non-compete agreement by soliciting the plaintiff’s clients after he was terminated for cause. The court found that an employer’s… Continue Reading