In a January 12, 2012 decision by Justice Scheinkman, the court denied the defendants’ motion to dismiss a class action complaint under CPLR §3211(a)(7), brought by current and former employees of the defendant catering companies which alleged that the defendants violated New York Labor Law § 196-d by misleading the customers to believe that a… Continue Reading
Monthly Archives: January 2012
Cross Motion to Dismiss Dissolution Petition Cannot Be Based on Disputed Facts: Matter of Langella v Front Door Assoc. Inc.
Posted in BCL 1104-a, Dissolution, Fraudulent Inducement, Justice Whelan, Thomas, Motion to Dismiss, Request for Proposals, Special Proceeding, SuffolkIn a January 13, 2012 decision by Justice Whelan, the court denied a motion to dismiss a dissolution proceeding brought under Business Corporation Law § 1104-a to dissolve two different businesses. Respondents moved to dismiss both proceedings, arguing that Petitioner did not own the requisite number of shares (20% of each entity) necessary to obtain dissolution. Respondents… Continue Reading
Court Denies Motion for Summary Judgment Made Before Discovery as Premature: Padilla Constr. Servs., Inc. v DeMicco Bros., Inc.
Posted in CPLR 3025, CPLR 3212, Discovery, Industry: construction, Justice Bucaria, Stephen A., Motion to Amend, Nassau, Statute of Frauds, Summary JudgmentIn a January 9, 2012, decision by Justice Bucaria, the court denied plaintiff’s motion for summary judgment as pre-mature and granted defendants’ motion for leave to amend its answer to allege the statute of frauds as an affirmative defense. Plaintiff-contractor sued defendant-general contractor and its surety in connection with unpaid balances on three separate construction projects… Continue Reading
A Party Preventing Performance of a Condition Precedent Cannot Rely on It: Independent Temperature Control Servs., Inc. v WDF Inc.
Posted in 22 NYCRR 130-1, Condition Precedent, CPLR 3212, Industry: construction, Justice Kitzes, Orin R., Motion to Dismiss, Queens, Sanctions, Substantial PerfornanceIn a July 21, 2011 decision by Justice Kitzes, the court denied the defendant M.A. Angeliades, Inc.’s (“MA”) motion to dismiss the cross claims by defendant WDF, Inc. and denied WDF’s cross-motion for sanctions against MA. The action arose out of a public works project at high school in Queens, where MA was the general… Continue Reading
My Brother’s Keeper; Court Grants Motion for Temporary Receiver for Properties Co-Owned by Deceased’s Brother and Widow: Clark v Clark
Posted in CPLR 6401, Industry: real estate, Justice Warshawsky, Ira B., Nassau, Receivership, Temporary Receiver, Tenancy In CommonIn a December 20, 2011 decision by Justice Warshawsky, the court granted in part the plaintiff’s motion, pursuant to CPLR 6401 for the appointment of a temporary receiver. The plaintiff, Winifred Clark, the widow of William Clark, brought the action against William’s brother, James Clark. In the instant motion, Winifred moved for the appointment of… Continue Reading
Affirmative Defenses are Barred by Guaranty’s Express Waiver Provision: J. Remora Maintenance LLC v Efromovich
Posted in Counterclaims, Fraudulent Inducement, Guaranty, Industry: construction, Justice Fried, Bernard J., Motion to Dismiss, New York, Summary Judgment, WaiverIn a January 4, 2012 decision by Justice Fried, the court granted the plaintiff’s motion for summary judgment to enforce a guaranty executed by the defendant in connection with the plaintiff’s sale of its interest in a company to a third party. The court found that because the two express conditions set forth in the… Continue Reading
Forum Selection Clause Applies to a Non-party to Agreement When Found to be “Closely Related” to the Party: Montoya v Cousins Chanos Casino, LLC
Posted in Choice of Law, Declaratory Judgment, Forum Selection Clause, GOL 5-1402, Industry: entertainment, Justice Kornreich, Shirley Werner, New YorkIn a January 12, 2012 decision by Justice Kornreich, the court granted in part defendants’ motion to dismiss a declaratory judgment action that sought a declaration that plaintiffs complied in all respects with a Subscription Agreement. The case arose out of an investment in a Law Vegas casino. In response to defendants’ threats of suing plaintiffs… Continue Reading
Preference to Particular Bidders Did Not Require Acceptance of Bid At Any Cost: Outstanding Transp., Inc. v. Interagency Council of Mental Retardation & Dev. Disabilities, Inc.
Posted in Contract Interpretation, Fraudulent Inducement, Good faith and fair dealing, Industry: Transportation, Justice Demarest, Carolyn E., Kings, Request for Proposals, Summary JudgmentIn a January 13, 2012 decision by Justice Demarest, the court granted defendant’s motion for summary judgment dismissing the complaint – even though discovery was not complete. The dispute arose from a private bus transportation contract. In a prior contract, the parties agreed that the companies already providing transportation services would be given a “preference” in subsequent… Continue Reading
Insurance Broker Can Be Liable for Not Finding the Most Cost Effective Life Insurance Policy: Finkelstein et al. v. Lincoln Natl. Corp. et al.
Posted in Doing Business, Industry: insurance, Justice Warshawsky, Ira B., Motion to Amend, NassauIn an October 14, 2011 decision by Justice Warshawsky the court granted plaintiffs’ motion to amend to add an additional statutory cause of action and an additional party. Defendants were retained to provide estate planning advice and services, including assisting in the purchase of life insurance policies. Plaintiffs alleged that defendants failed to diligently seek the most… Continue Reading
Defendant Cannot Vacate Default Judgment By Claiming It Never Received Pleadings: C McCormack Inc. v 6 St. Nicholas LLC
Posted in Default, Industry: construction, Justice Driscoll, Timothy, Limited Liability Companies, NassauIn a December 7, 2011 decision by Justice Driscoll, the court denied the defendant’s motion to vacate a default judgment against it. Based on Second Department law, the court found that the plaintiff presumptively established the right to a default judgment by providing a process server’s affidavit of service of the summons and complaint pursuant… Continue Reading
Questions of Fact and Automatic Stay Prohibit Motion for Summary Judgment: Tomlinson v Degannes
Posted in Automatic Stay, Bankruptcy, CPLR 3212, Industry: real estate, Justice Schmidt, David I., Kings, Mortgages, Summary JudgmentIn a December 2, 2011 decision by Justice Schmidt, the court denied the defendant/third-party defendant, Chan’s, motion for summary judgment pursuant to CPLR 3212 which sought to dismiss the complaints of both the plaintiff, Tomlinson, and the intervening defendant/third-party plaintiff, BNC Mortgage, Inc. The case stemmed from a sale of real property in which Tomlinson… Continue Reading
Express As-Is Lease Provisions Bars Fraud Claim: Midorimatsu, Inc. v Hui Fat Co.
Posted in CPLR 3211, Fraud, Industry: real estate, Justice Kitzes, Orin R., Misrepresentation, Motion to Dismiss, QueensIn an November 22, 2011, decision by Justice Kitzes, the court granted defendant’s motion to dismiss for failure to state a cause of action. Plaintiff-restaurant tenant sued defendant-landlord for allegedly failing to prepare the premises for compliance with certain restaurant regulations, including seating capacity for up to 150 customers. Defendant moved to dismiss based on specific provisions… Continue Reading
General Electric Capital Corp. v. Ocean Marine Inc.
Posted in Deficiency Judgment, Guaranty, Industry: marina, Justice Driscoll, Timothy, Mortgage Foreclosure, NassauIn a November 28, 2011 decision by Justice Driscoll, the court granted plaintiff lender’s motion for judgment of foreclosure and sale and an order of reference. In 2005, the lender, GE Capital Corp., loaned $1 million to defendant, a marina located in Freeport, NY. The loan was secured by a mortgage on three properties. In addition, the individual… Continue Reading
Court Denies Motion for Leave to Amend Where Proposed Allegations Were Reviewed and Dismissed as Part of Cross-Motion for Summary Judgment: Ferghana Partners Inc. v Bioniche Life Sciences Inc.
Posted in Breach of Contract, CPLR 3212, Finder's Fee, Industry: pharmaceutical, Justice Schweitzer, Melvin L., Motion to Amend, New York, Quantum Meruit, Summary Judgment, Unjust EnrichmentIn an October 5, 2011, decision by Justice Schweitzer, the court granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s motion for leave to amend. Plaintiff-investment firm sued defendant-biotechnology company for breach of contract under a finder’s agreement in connection with defendant’s partnership with a pharmaceutical company to market and sell one of… Continue Reading
Motion for Partial Summary Judgment Granted, In Part: Comprehensive Care Mgt. Corp. v Utica Mutual Ins. Co.
Posted in CPLR 3212, Declaratory Judgment, Justice Emerson, Elizabeth, Mechanic's Lien, Necessary Joinder of Parties, Suffolk, Summary JudgmentIn a December 15, 2011 decision by Justice Emerson, the court granted in part and denied in part the defendant’s motion for partial summary judgment. The case arose from a construction project entered to build a health-care treatment center on behalf of Comprehensive Care (“CCMC”). After a dispute arose between CCMC and the original construction… Continue Reading
Court Holds Complaint Sufficiently Alleges Anticipatory Repudiation: Israel Cancer Research Fund, Inc. v Harvey & Gloria Kaylie Foundation, Inc.
Posted in Anticipatory Repudiation, Industry: financial services, Justice Fried, Bernard J., Motion to Dismiss, New YorkIn a December 14, 2011 decision by Justice Fried, the court denied the defendant’s motion to dismiss the complaint which alleged anticipatory breach of contract. Taking the plaintiff’s allegations as true for purposes of a motion to dismiss, the court found that allegations that the defendant persistently refused to make payments owed to the plaintiff… Continue Reading
Motion to Dismiss Granted Where Causes of Action in Amended Complaint Were Identical to Those in Original: Siegel Consultants, Ltd. v Nokia, Inc.
Posted in Conflict of Interest, CPLR 3211, Declaratory Judgment, Industry: real estate, Justice Bransten, Eileen, Motion to Dismiss, New York, SanctionsIn an April 28, 2011 decision by Justice Bransten, the court granted the third-party defendant Frieland’s motion to dismiss the third-party complaint against it; denied the defendant/third-party plaintiff 5 LLC’s cross-motion to disqualify Friedland’s attorney (“Frohman”); and denied Friedland’s motion for sanctions. The matter arose out of the rental of real property owned by 5 LLC…. Continue Reading
Hearing Required to Determine If Corporation Should Be Dissolved: Ziffer et al. v. Tapper et al.
Posted in BCL 1104, Dissolution, Industry: wholesale, Justice Driscoll, Timothy, Nassau, Preliminary Injunction, ReceiverIn an October 28, 2011 decision by Justice Driscoll the court found that a hearing was necessary to resolve conflicting testimony concerning the status of a company Petitioners sought to dissolve. The operation of the company was controlled by a three person board of directors which, by stipulation in a prior lawsuit, contained a board member… Continue Reading
Electronic Acknowledgment of Agreement to Arbitrate in Employee Handbook Binds Former Employee: Mustaphalli v Citigroup Global Mkts., Inc.
Posted in Arbitration, CPLR 3211, CPLR 7503, Employee Handbook, FINRA, Industry: financial services, Justice Kitzes, Orin R., Motion to Compel Arbitration, Motion to Dismiss, NYS Human Rights Law, QueensIn an August 9, 2011 decision by Justice Kitzes, the court granted defendant’s motion to compel arbitration. Plaintiff-employee brought a discrimination claim against defendant-bank under the NYS Human Rights Law. Defendant moved to compel arbitration under an arbitration provision in its employee handbook, which expressly covered “all employment disputes based on legally protected rights,” including claims “regarding… Continue Reading
Court Holds Jimmy Kimmel Live is Newsworthy and Dismisses Invasion of Privacy Claim: Sondik v Kimmell
Posted in Conflict of Laws, Industry: entertainment, Justice Schmidt, David I., Kings, Motion to Dismiss, New York Civil Rights Law, Right to Privacy, Unjust EnrichmentIn a December 15, 2011 decision by Justice Schmidt, the court dismissed an action brought against Jimmy Kimmel claiming he invaded the plaintiff’s privacy by using a picture of the plaintiff taken from a YouTube video in a comedic sketch on Jimmy Kimmel Live. The court first addressed a choice of law issue and rejected… Continue Reading