In a December 7, 2011 decision by Justice Kitzer the court granted a bank’s motion for summary judgment against a corporate borrower and the loan’s guarantors. The bank also sought to amend the caption to replace the named lender with the current lender, who assumed the note under an agreement with the FDIC which acted as… Continue Reading
Monthly Archives: December 2011
Court Decides Motions for Summary Judgment arising from Fraudulent Financial Advice and Resultant Mortgage Default: Mauro v Countrywide Home Loans, Inc.
Posted in Declaratory Judgment, Fiduciary Duty, Fraud, Indemnification, Industry: financial services, Industry: insurance, Industry: real estate, Justice Warshawsky, Ira B., Nassau, Negligence, Promissory Note, Statute of Limitations, Summary JudgmentIn an October 17, 2011 decision by Justice Warshawsky, the court: 1) denied in part and granted in part both Kaplan’s and Countrywide’s motion for summary judgment to dismiss the complaint; and 2) denied Mauro’s cross-motion for summary judgment against Countrywide. On the advice of Dawson, who held himself out as an experienced financial manager,… Continue Reading
Court Enjoins Operation of Non-Compete Provision Containing No Practical Geographic or Temporal Limitations: Crossroads ABL, LLC v Canaras Capital Mgt., LLC
Posted in CPLR 6301, Industry: financial services, Justice Fried, Bernard J., Limited Liability Companies, New York, Preliminary InjunctionIn a November 2, 2011, decision by Justice Fried, the court denied in part and granted in part plaintiffs’ motion for a preliminary injunction. Plaintiffs sought to enjoin dissolution of their ownership interest in an LLC formed with defendants, which was effected by an allegedly unauthorized sale of outstanding common units of the LLC. Plaintiffs also sought… Continue Reading
Contract Guaranty Signed in Massachusetts is Subject to New York Long-Arm Jurisdiction: Summit Const. Servs. Group, Inc. v Act Abatement, LLC
Posted in CPLR 302, Guaranty, Industry: construction, Justice Scheinkman, Alan D., Motion to Dismiss, Personal Jurisdiction, WestchesterIn a December 16, 2011 decision by Justice Scheinkman, the court examined whether a contract guaranty to be performed in New York constituted a contract for services to be performed in New York thereby permitting the court to exercise long-arm jurisdiction over the guarantying party. It concluded that it did and dismissed the defendant’s motion… Continue Reading
Nothing New to Say; Motion for Leave to Amend Complaint Denied: Verdeber v Commander Enters. Centerreach, LLC
Posted in Breach of Contract, CPLR 3025, Industry: real estate, Justice Warshawsky, Ira B., Motion to Amend, Nassau, Order to Show Cause, WaiverIn an October 18, 2011 decision by Justice Warshawsky, the court denied the plaintiffs’ motion to amend the complaint pursuant to CPLR 3025(b) to include claims for breach of contract and waiver with respect to defendant Benco LLC’s (“Benco”) alleged failure to consummate a closing to purchase the plaintiffs’ interest in the defendant Commander Enterprises… Continue Reading
Equipment Rental Company Dismissed From Action, No Evidence It Employees Worked at the Job Site, Hudson Meridian Constr. Group, LLC v. Kingdom Assoc., Inc.
Posted in Breach of Contract, Indemnification, Industry: construction, Justice Demarest, Carolyn E., Kings, Summary JudgmentIn an October 3, 2011 decision by Justice Demarest the court granted summary judgment and dismissed from the case a dewatering equipment rental company because it demonstrated that it could not be held liable for the damages which occurred on the construction site. The suit arose from a large construction project which required dewatering (pumping water… Continue Reading
Arbitration Provision in Shareholders Agreement Applies to Parties’ Disputes Under Related Goods & Services Agreement: Russo v Time Moving & Stor., Inc.
Posted in Arbitration, Breach of Contract, Compel Arbitration, CPLR 3211, Fraud, Justice Driscoll, Timothy, Motion to Dismiss, NassauIn a November 30, 2011, decision by Justice Driscoll, the court denied defendants’ motion to dismiss and directed the parties to arbitration on all issues raised in plaintiffs’ complaint. Plaintiffs sued defendants alleging various breaches and fraudulent acts in connection with parties’ contractual relationship under a goods-and-services agreement and a shareholders agreement. The shareholders agreement contained a… Continue Reading
Court Appoints Temporary Receiver and Places Limitations on Member’s Rights During Pendency of Hotly Contested LLC Breakup: Scomello v. Pascarella
Posted in Breach of Fiduciary Duty, Dissolution, Industry: hospitality, Justice Pines, Emily, Limited Liability Companies, Preliminary Injunction, SuffolkIn a November 2, 2011 decision by Justice Pines, the court appointed a temporary receiver with limited powers and restricted the members’ rights to withdraw funds from the company during the pendency of a LLC dissolution proceeding. Plaintiff commenced the action seeking injunctive relief to alleging that the defendant committed a number of wrongful acts, including… Continue Reading
Motion to Dismiss Granted Based on Findings of no Course of Conduct or Justifiable Reliance: Treeline 990 Steward Partners LLC v. Rait Atria, LLC
Posted in Course of Performance, CPLR 1006, CPLR 3211, Fraud, General Obligations Law 15-301(1), Industry: real estate, Interpleader, Justice Bucaria, Stephen A., Justifiable Reliance, Misrepresentation, Motion to Dismiss, Nassau, Partial PerformanceIn a November 10, 2011 decision by Justice Bucaria, the court granted the defendants’ (the “RAIT” defendants) motion pursuant to CPLR 3211(a)(1), (a)(5), and (a)(7) to dismiss the amended complaint and the answer and interpleader complaint of the defendant/interpleader plaintiff 990 Stewart Avenue Investors, LLC (“SAI”), and because of that disposition, the court denied as… Continue Reading
Discovery Request Regarding a Category of Damages Not Asserted in Complaint Deemed Not Material and Necessary: BGC Partners Inc. v Board of Trade of the City of Chicago, Inc.
Posted in Breach of Contract, Consequential Damages, CPLR 3013, CPLR 3025, CPLR 3214, Damages, Discovery, Industry: technology, Justice Bransten, Eileen, Material and Necessary, Motion to Amend, Motion to Compel Discovery, New York, Notice PleadingIn a September 27, 2011, decision by Justice Bransten, the court denied plaintiff’s motion to compel but granted its motion to amend its complaint. Plaintiff provided defendant Chicago Board of Trade with software and related services to assist in the trade of futures and options on futures under a “network” agreement. When plaintiff allegedly disclosed the terms… Continue Reading
Defendant’s Technical Violation of a TRO Did Not Rise to the Level of Willfulness to Constitute Contempt
Posted in Contempt, Industry: retail, Limited Liability Companies, Preliminary Injunction, Restraining Notices, Suffolk, TROIn a November 21, 2011 decision by Justice Whelan, the court denied the plaintiff’s motion to hold the defendant in civil and criminal contempt for violating a temporary restraining order which enjoined the defendant from destroying the books and records of the auto dealership of which the parties were both members. The plaintiff’s motion centered… Continue Reading
Defendant in Libel Action Not Subject to New York’s Long Arm Jurisdiction: Peters v. Coutsodontis et al.
Posted in CPLR 3211, Defamation, Industry: Transportation, Justice Kapnick, Barbara R., Motion to Dismiss, New YorkIn a September 26, 2011 decision by Justice Kapnick the court granted a corporate defendant’s motion to dismiss for lack of personal jurisdiction. Plaintiff sued alleging that the individual defendant libeled him when he made allegedly defamatory statements about the plaintiff in litigation papers filed in a prior action between the plaintiff and the individual defendant. Plaintiff… Continue Reading
Court Rejects Claim that Christie’s was Liable for Sale of Counterfeit Jean-Michel Basquiat Painting
Posted in Fraud, Industry: Art, Justice Kornreich, Shirley Werner, New York, Summary JudgmentIn a November 22, 2011 decision by Justice Kornreich, the court granted the defendant’s motion for summary judgment and dismissed plaintiff Guido Orsi’s complaint. Orsi purchased a painting by artist Jean-Michel Basquiat from the Tony Shafrazi Gallery 20 years ago, which had previously acquired the painting from an auction at Christie’s. In 2006, Orsi learned… Continue Reading
Issue of Fact Exist, Complaint Sufficiently Supports Claim, Motion For Summary Judgment and to Dismiss Cause of Action Denied: Long Is. Med. v Lligam Assoc., Inc.
Posted in Asset Purchase Agreement, CPLR 3212, De Facto Merger Doctrine, Industry: staffing, Justice Driscoll, Timothy, Merger, Motion to Dismiss, Nassau, Summary JudgmentIn a November 1, 2011 decision by Justice Driscoll, the court denied defendant TeamPositions Inc.’s motion for summary judgment dismissing the plaintiff’s complaint and to dismiss the second cause of action sounding in gross negligence. TeamPositions argued that it was neither a party to, nor an intended beneficiary of the contract (“Contract”), which lays at… Continue Reading