In a November 14, 2011 decision by Justice Oing, the court denied both the plaintiff’s and the defendant’s motions for summary judgment. Quoizel, in the business of manufacturing lighting and home décor accessories, brought suit against Hartford, its commercial liability insurance provider, after a sprinkler system leak damaged its South Carolina warehouse and inventory therein…. Continue Reading
Monthly Archives: November 2011
$400,000 Note is Not the Same as $400,000 Payment, Strict Compliance Required to Exercise Option: Sag Harbor Land, LLC v Sag Development Partners, LLC
Posted in Breach of Promissory Note, Fraud, Industry: financial services, Industry: real estate, Justice Emerson, Elizabeth, Promissory Note, Suffolk, Summary JudgmentIn a September 8, 2011 decision by Justice Emerson the court granted a mortgage holder summary judgment on its foreclosure claim and for the appointment of a referee. The claim arose from a $16 million real estate purchase, $8 million of which was originally contingent upon the purchaser receiving certain environmental and other approvals. The purchaser had… Continue Reading
Progress of Related Action and Jurisdictional Issues Bar Consolidation in Nassau County: Varkonyi v TS Multi-Strategy Fund, LP
Posted in Consolidation, CPLR 602, Industry: financial services, Justice Driscoll, Timothy, Limited Liability Partnerships, Nassau, Subject Matter Jurisdiction, VenueIn a September 30, 2011, decision by Justice Driscoll, the court denied plaintiffs’ motion for an order consolidating the instant action and a related New York County action in Nassau County and directed them to make the motion in New York County instead. Plaintiffs and the receiver for the defendant-partnership agreed that the two actions should… Continue Reading
Immunity Doctrines Bar Suits By Carl Ichan: Icahn v Raynor
Posted in Immunity, Industry: financial services, Justice Bransten, Eileen, Motion to Dismiss, New York, Noerr-Pennington Doctrine, Prior Action Pending, Tortious Interference with Business RelationsIn a June 16, 2011 decision by Justice Bransten, the court granted the defendants’ motion to dismiss the complaint, the fourth action between the parties, and denied the plaintiffs leave to amend. The complaint was filed in response to litigation defendant Raynor and his affiliated companies commenced in January 2010 which alleged that they were… Continue Reading
Commercial Building Not Subject to Residential Foreclosure Requirements: Meyerson Capital X, LLC v Kats
Posted in CPLR 3211, Industry: banking, Industry: real estate, Justice Hinds-Radix, Sylvia O., Kings, Mortgage Foreclosure, Motion to DismissIn an October 25, 2011 decision by Justice Hinds-Radix the court had to decide in the context of a foreclosure action whether a loan was a “home loan” or a loan against commercial property. The defendant moved to dismiss the complaint arguing, by way of his attorney’s affidavit, that the loan was a home loan and… Continue Reading
Court Finds “Bad Boy” Guaranty is Instrument for Payment of Money and Grants CPLR § 3213 Motion: UBS Commercial Mtge. Trsut 2007-FL1 v Garrison Special Opportunities Fund, LP
Posted in Bad Buy Guaranty, Guaranty, Justice Schweitzer, Melvin L., New York, Summary Judgment in lieu of ComplaintIn a March 8, 2011 decision by Justice Schweitzer, the court granted the plaintiff’s motion for summary judgment in lieu of a complaint, pursuant to CPLR § 3213, which sought payment from the defendant under a guaranty. In opposing the motion, the defendant argued that the guaranty was not an instrument for the payment of… Continue Reading
Notice to Admit Not Permitted for Discovery of Personal Information Regarding a Non-Party: Schlisserman v PA Consulting Group, Inc.
Posted in CPLR 3123, Discovery, Disparate Treatment, Justice Kapnick, Barbara R., New York, Notice To AdmitIn an October 28, 2011, decision by Justice Kapnick, the court denied plaintiff’s motion for an order compelling defendant to respond to a notice to admit certain facts concerning sexual harassment and other inappropriate conduct of an employee. The notice, which was served on a former employee of defendant-employer and requested admission of allegedly inappropriate conduct… Continue Reading
Motion to Quash Subponea Granted: Guss v. Aronson
Posted in Discovery, Justice Warshawsky, Ira B., Motion To Quash, Nassau, Subpoena duces tecumIn a September 27, 2011 decision by Justice Warshawsky, the court granted the non-party’s motion to quash a subpoena duces tecum served on it by plaintiffs. Plaintiffs sought discovery of non-privileged information from The Weinstein Group, P.C., a law firm that had previously represented defendant Aronson in unrelated matters. Specifically, plaintiffs sought documents from litigations,… Continue Reading
Client’s Termination of “General Retainer” Can Be A Breach of Contract: National Grid Cop. Serv., LLC v. LeSchak & Grodensky, P.C.
Posted in Attorneys' Fees, Breach of Contract, Good faith and fair dealing, Industry: legal, Justice Bucaria, Stephen A., Quantum Meruit, Summary JudgmentIn an October 26, 2011 decision by Justice Bucaria the court denied cross-motions for summary judgment finding that issues of fact precluded dismissing either parties’ claims. The dispute arose from National Grid’s retention of the defendant law firm to commence replevin actions to seize and recover utility meters from non-paying customers, in addition to other legal… Continue Reading
Rock Star Liable for Failure to Return $150K in Jewelry Provided on Consignment for Charity Event: Diamond Quasar Jewelry, Inc v Courtney Love Cobain
Posted in Bailment, Breach of Contract, Consignment Contract, Conversion, CPLR 3212, Damages, Fair Value, Motion For Summary Judgment Premature, New York, Summary JudgmentAlthough not venued in the Commercial Division, in an October 11, 2011, decision by New York County Justice Ling-Cohen, the court granted in part plaintiffs’ motion for summary judgment on its claim for breach of contract. Plaintiff, a New York jewelry merchant, provided rocker/actress Courtney Love with approximately $150,000 in jewelry under a consignment contract in… Continue Reading
No Material Fact Incorrect in Certificate of Readiness, Prima Facie Burden Not Met, Motions to Vacate and for Summary Judgment Denied: Betram v. Decicco
Posted in 22 NYCRR 202.21, Certificate Of Readiness, CPLR 3124, CPLR 3126, CPLR 3211, Industry: healthcare, Industry: insurance, Justice Pines, Emily, Motion to Vacate, Note Of Issue, Suffolk, Summary JudgmentIn an October 24, 2011 decision by Justice Pines, the court denied the defendant’s motions: 1) pursuant to 22 NYCRR § 202.21, and CPLR 3124 and 3126(2) for an order striking the plaintiff’s note of issue and certificate of readiness; and 2) pursuant to CPLR 3212 for summary judgment dismissing the complaint. This negligence action arose… Continue Reading
Court Upholds Employer’s Claims against Former Employee for Breach of Confidentiality and Non-Compete Provisions of Employment Agreement: Novus Partners, Inc. v Vainchenker
Posted in Breach of Contract, Confidentiality, Industry: financial services, Motion to Dismiss, Non-compete, Non-solicitation, Tortious Interference with Business Relations, Trade SecretsIn a September 7, 2011 decision by Justice Fried, the court upheld the plaintiff’s breach of contract claim which alleged that the defendant former employee breached the confidentiality, non-compete, and non-solicitation provisions of his employment agreement. First, the court rejected the defendants’ argument that the claim failed because it did not allege damages with specificity…. Continue Reading
Mechanic’s Lien Not Defective Even Though Filed Against Pre-Subdivision Lot Number: Hai Ming Construction Corp. v. 258 Devoe LLC
Posted in Industry: construction, Justice Schmidt, David I., Kings, Mechanic's Lien, Notice Of PendencyIn an October 19, 2011 decision by Justice Schmidt the court denied a motion to discharge a mechanic’s lien and to cancel a notice of pendency. The plaintiff, construction contractor, was involved with the construction of three eight-unit buildings to be built on a portion of a lot which was already improved by a building and… Continue Reading
That’s No Excuse! Advice of Loan Servicing Agent Insufficient Basis for Leave to File Late Answer: Bank of NY v. Jayaswal
Posted in CPLR 3012, Default, Industry: banking, Industry: real estate, Justice Whelan, Thomas, Justifiable Reliance, Mortgage Foreclosure, Motion for Leave to File a Late Answer, RPAPL 1320, SuffolkIn an October 17, 2011 decision by Justice Whelan, the court denied the defendants-mortgagors’ motion for leave to file a late answer pursuant to CPLR 3012(d). Plaintiff commenced the mortgage foreclosure action in September 2009, and after multiple settlement conferences were unsuccessful, defendants failed to submit an answer or otherwise timely appear. The court denied… Continue Reading
Employment Related Claims Survive Dismissal Based on Theory of Oral Contrat: Zentz v International Foreign Exch. Concepts, L.P.
Posted in BCL 626, Breach of Contract, Breach of Fiduciary Duty, Discretionary Bonus, Industry: financial services, Justice Demarest, Carolyn E., Kings, Motion to Dismiss, Shareholder Dispute, Termination Of EmploymentIn an October 20, 2011 decision by Justice Demarest addressing the defendants’ motion to dismiss, the court upheld the majority of the plaintiff’s complaint predicated on the defendants’ alleged failure to pay Trader Commissions owed to the plaintiff during the course of his employment as a portfolio manager. The court rejected the defendants’ argument that… Continue Reading
Law Firm Representation of Same Party as Plaintiff and Defendant in Separate Lawsuits Involving the Same Companies and Businesses Not Enough to Disqualify: Kalish v Fernandez
Posted in Attorney Disqualification, Attorney-Client Privilege, Confidentiality, Industry: healthcare, Justice Driscoll, Timothy, Nassau, Rules Of Professional ConductIn an October 14, 2011, decision by Justice Driscoll, the court denied plaintiffs’ motion to disqualify defendants’ counsel. Plaintiffs and defendants, owners of significant membership interests in an LLC that provided MRI diagnostic services, were involved in two lawsuits – one commenced in July 2005 and the other in April 2011 – involving allegedly improper removal… Continue Reading
LLC Member not Entitled to File Notice of Pendency against Property Owned by LLC: Born To Build, LLC v Saleh
Posted in Commercial Real Property, CPLR 3211, CPLR 6301, Documentary Evidence, Industry: real estate, Justice Warshawsky, Ira B., Limited Liability Companies, Motion to Dismiss, Nassau, Notice Of Pendency, Preliminary InjunctionIn a September 20, 2011, decision by Justice Warshawsky, the court denied plaintiff-contractor’s motion for an order directing the clerk of court to accept and file a notice of pendency and granted defendant-owners’ corresponding motion to preclude the filing of the notice. The court also denied plaintiff’s request for injunctive relief but otherwise denied defendants’ motion… Continue Reading
No Duplication of Claims, Reasonable Reliance Determination Benefitted by Discovery, Jury Waiver Provision Valid: Ambac Assur. Corp. v. DLJ Mtge. Capital, Inc.
Posted in Industry: financial services, Industry: real estate, Justice Driscoll, Timothy, Motion to Dismiss, Nassau, Piercing Corporate VeilIn an October 7, 2011 decision by Justice Kornreich, the court granted plaintiffs’ motion for leave to reargue; denied defendants’ motion to dismiss plaintiff’s fraudulent inducement claim; and granted defendants’ motion to strike plaintiff’s demand for a jury trial. Plaintiff’s motion to reargue followed an order dismissing its fraudulent inducement claim and striking its demand for… Continue Reading
Default Motion for a Judgment of Foreclosure and Sale Denied for Accuracy: Madison Natl. Bank v 256 Jefferson Mgt. LLC
Posted in Default, Foreclosure, Industry: real estate, Justice Hinds-Radix, Sylvia O., Kings, Mortgages, ReceiverIn a September 22, 2011 decision by Justice Hinds-radix in an action concerning the foreclosure of a mortgage on commercial real property, the court denied the plaintiff’s default motion for the entry of a judgment of foreclosure and sale. Although there was no opposition to the motion, the court reviewed the proposed judgment for accuracy… Continue Reading
“Piercing the Corporate Veil” Is Not An Independent Cause of Action; Ersail v. Pour et al.
Posted in Industry: financial services, Industry: real estate, Justice Driscoll, Timothy, Motion to Dismiss, Nassau, Piercing Corporate VeilIn an August 3, 2011 decision by Justice Driscoll the court granted a motion to dismiss claims against an entity seeking to pierce the corporate veil and against that entity’s purported “controlling officer.” The litigation arose from a mortgage transaction which was the subject of a companion foreclosure suit. This litigation – brought by the mortgagee –… Continue Reading