Monthly Archives: October 2011

Matter of Widespread Public Notice Not the Basis for Fraud or Misrepresentation: Khindri v. Getty Petroleum Mktg., Inc. and Albert Salib

By Adam Rafsky on October 25th, 2011 Posted in Burden of Proof, CPLR 3212, Fraud, Industry: real estate, Intentional Misrepresentation, Justice Pines, Emily, Misrepresentation, Negligent Misrepresentation, Search The Record, Suffolk, Summary Judgment

In an October 11, 2011 decision by Justice Pines, the court granted defendant Getty’s motion for summary judgment dismissing the complaint against it, and dismissed the complaint against non-moving defendant Salib. Pursuant to a purchase agreement, the plaintiffs were to acquire a gas station business from Salib. Plaintiffs also entered into a lease of the real… Continue Reading

Insurer Fails to Demonstrate Material Misrepresentation, Cannot Void Insurance Policy: BW Sportswear, Inc. v. Those Certain Underwriters at Lloyd’s of London, Subscribing to Certificate Number 34665

By Aaron Zerykier on October 25th, 2011 Posted in Declaratory Judgment, Industry: insurance, Insurance Coverage, Justice Oing, Jeffrey K., Misrepresentation, New York, Summary Judgment

In an August 8, 2011 decision by Justice Oing the court denied an insurer’s motion for summary judgment for a declaration that an insurance policy was void and rescinded ab initio. The litigation stemmed from an insurance claim for water damage to a clothing store. The insurer performed an investigation after the claim was submitted. Based on the… Continue Reading

Failure to Serve Notice of Default Not a Proper Ground for Dismissal under CPLR 3211: Old Rock Assoc. v BDG Yapshank, LLC

By Matthew D. Donovan on October 25th, 2011 Posted in Commercial Real Property, Condition Precedent, CPLR 3211, CPLR 3215, Deficiency Judgment, Documentary Evidence, Failure to State a Claim, Industry: real estate, Justice Whelan, Thomas, Mortgages, Suffolk

In a September 16, 2011, decision by Justice Whelan, the court denied in part and granted in part defendant’s motion to dismiss plaintiff’s mortgage-foreclosure action and demand for a deficiency judgment in connection with the purchase of certain commercial real property. Defendant argued that plaintiff failed to comply with the default provisions of the mortgage, which… Continue Reading

Nevada Wins Over New York As More Convenient Forum: Matter of Harbin Shareholders’ Litig.

By Hilary A. Frommer on October 25th, 2011 Posted in Breach of Fiduciary Duty, Class Action, Forum non Conveniens, Justice Emerson, Elizabeth, Motion to Dismiss, Shareholder Dispute, Suffolk

In an August 19, 2011 decision by Justice Emerson concerning a shareholder dispute, the court granted the defendants’ motion to dismiss the complaint alleging claims for breach of fiduciary duty and aiding and abetting breach of fiduciary duty based on forum non conveniens. Upon balancing the relevant factors, the court found that the ends of justice… Continue Reading

Court Passes on Its Inherent Power to Vacate Prior Order in Connection with Parties’ Settlement Agreement: Foster Wheeler LLC v Affiliated FM Insurance Co.

By Matthew D. Donovan on October 18th, 2011 Posted in CPLR 2221, CPLR 5015 (a) (3), Industry: insurance, Insurance Coverage, Justice Kapnick, Barbara R., Motion to Vacate, New York

In a September 23, 2011, decision by Justice Kapnick, the court denied plaintiff’s motion to vacate the court’s earlier decision and order granting summary judgment to various defendant-insurers regarding limitations to the allocation period relative to asbestos insurance coverage. Under a proposed settlement agreement between Plaintiff and the sole, remaining defendant-insurer, plaintiff, concerned with the potential… Continue Reading

RICO Claims Dismissed, Malicious Prosecution Claims Cannot Form Predicate Act: The Auto Collection et al v. Pinkow et al.

By Aaron Zerykier on October 18th, 2011 Posted in Industry: Transportation, Justice Demarest, Carolyn E., Kings, Motion to Dismiss, RICO, Summary Judgment

In an October 7, 2011 decision by Justice Demarest the court dismissed a RICO claim because after two years of discovery plaintiffs were still unable to prove the essential elements of their claim. The dispute arose from sales of luxury automobiles which were to shipped from the United States to the Soviet Union and Eastern Europe. One… Continue Reading

Court Lacks Personal Jurisdiction Over New Jersey Recruiter: KForce Inc. v Foote

By Hilary A. Frommer on October 18th, 2011 Posted in Breach of Contract, Industry: Staffing Services, Justice Fried, Bernard J., Motion to Dismiss, New York, Personal Jurisdiction, Restrictive Covenant, Trade Secrets, Unfair Competition

In a September 21, 2011 decision by Justice Fried, the court granted defendant Kam’s motion to dismiss the complaint on the grounds that the court lacked personal jurisdiction. Kam was employed by the plaintiff staffing firm as a recruiter. Almost one year after Kam resigned his position and began working for a different staffing firm, defendant… Continue Reading

Too Late To Amend For Actual Partial Eviction: Todd Rotwein, D.P.M., P.C., v Nader Enterprises

By Adam Rafsky on October 18th, 2011 Posted in CPLR 3025, Industry: real estate, Justice Driscoll, Timothy, Motion to Amend, Nassau

In a September 22, 2011 decision by Judge Driscoll, the court denied plaintiff’s motion to amend its complain to add a cause of action for actual partial eviction. Plaintiff, a tenant in the defendant LLC’s property located in Hempstead, initiated the action for a breach of lease based on, inter alia, failing to provide heat… Continue Reading

Specific Provision in an Integrated Agreement Not an Instrument for the Payment of Money Only for Purposes of CPLR 3213: Lawrence v Kennedy

By Matthew D. Donovan on October 11th, 2011 Posted in Accounting, Breach of Contract, CPLR 3211, Justice Bucaria, Stephen A., Nassau, Summary Judgment in lieu of Complaint

In a September 22, 2011, decision by Justice Bucaria, the court denied plaintiff’s motion for summary judgment in lieu of complaint under CPLR 3213, as well as granted in part and denied in part defendants’ motion to dismiss. Plaintiff, the founding member and later “of counsel” employee of a law firm, sued the firm and its… Continue Reading

Claims to Recover from Bank for Checks Deposited Into the Wrong Bank Account Untimely: Golden First Mtge. Corp. v Smith et al.

By Aaron Zerykier on October 11th, 2011 Posted in Breach of Fiduciary Duty, Conversion, CPLR 3211, Fraud, Industry: financial services, Justice Driscoll, Timothy, Nassau, Uniform Commercial Code UCC

In a September 15, 2011 decision by Justice Driscoll the court granted a motion to dismiss various claims brought against a bank sounding in conversion (both common law and under the UCC), fraud and breach of fiduciary duties. Plaintiff is a mortgage brokerage company. One of its employees deposited over 200 checks into a bank account in… Continue Reading

Court Orders Parties to Arbitrate Based on Broad Arbitration Clause in Shareholders Agreement: Box Export & Import, Inc. v Karakus

By Hilary A. Frommer on October 11th, 2011 Posted in Arbitration, Breach of Fiduciary Duty, Conversion, Justice Demarest, Carolyn E., Kings, Motion to Dismiss, Shareholder Dispute, Stay Arbitration

In a September 15, 2011 decision by Justice Demarest, the court granted the defendant’s motion to stay the action pending arbitration upon finding that the plaintiff’s claims for breach of fiduciary duty, conversion, unjust enrichment, violations of the BCL, and claims concerning stock ownership were arbitrable under the broad arbitration clause set forth in the… Continue Reading

Foreclosure Stayed, Hearing Ordered, Plaintiff Must Prove Proper Service of Process: Citibank NA v Jerome

By Aaron Zerykier on October 4th, 2011 Posted in Debtor-Creditor, Industry: banking, Industry: financial services, Industry: real estate, Justice Pines, Emily, Motion to Vacate, Personal Jurisdiction, Suffolk

In an August 18, 2011 decision by Justice Pines the court ordered a hearing to determine whether the defendant was properly served in this mortgage foreclosure action. The defendant made two prior unsuccessful motions to vacate the judgment against him (the first was denied because he failed to properly serve plaintiff and the second was denied… Continue Reading

Defendants Not Preliminarily Enjoined from Using Partnership Assets to Pay Litigation Costs: Katz v Beil

By Hilary A. Frommer on October 4th, 2011 Posted in Attorneys' Fees, Breach of Fiduciary Duty, Industry: sports, Justice Driscoll, Timothy, Nassau, Partnership, Preliminary Injunction

In an August 15, 2011 decision by Justice Driscoll, the court denied the plaintiff’s motion for a preliminary injunction to preclude the defendants from using the assets belonging to a general partnership, of which the parties were all partners, to pay the legal fees the defendants incurred in the litigation. The partnership owned a gold… Continue Reading

Court Finds Condition Precedent to Attachment of Excess Liability under Strict Reading of Policies: JP Morgan Chase v Indian Harbor Ins. Co.

By Matthew D. Donovan on October 4th, 2011 Posted in Breach of Contract, CPLR 3212, Indemnification, Industry: banking, Industry: insurance, Insurance Coverage, Justice Kapnick, Barbara R., New York

In a May 26, 2011, decision by Justice Kapnick, the court granted defendant-excess insurers’ consolidated motions for summary judgment dismissing plaintiff-bank’s claims for indemnification under professional-liability and directors-and-officer’s policies sold by defendants. Applying Illinois law as required by the various policies, the court rejected plaintiff’s essential argument that, as a general rule, liability under excess policies… Continue Reading