In an April 18, 2012 decision by Justice Driscoll, the court denied the defendants’ motion for summary to dismiss the complaint with respect to the first and second causes of action, and granted the motion with respect to the third cause of action. The plaintiff and individual defendant, who are brothers-in-law, were the sole members… Continue Reading
Category Archives: County/District
Subscribe to County/District RSS FeedDefendant’s Summary Judgment Motion to Dismiss Breach of Contract Claim Denied Based on its own Conflicting Evidence of Delay: Giumenta Corp. v Desktop Solutions Software, Inc.
Posted in Breach of Contract, Industry: technology, Intellectual Property, Justice Whelan, Thomas, Motion to Dismiss, Motion to Vacate, Preemption, Suffolk, Summary Judgment, Unjust EnrichmentIn an April 9, 2012 decision by Justice Whelan, the court granted in part and denied in part, the defendant’s motion for summary judgment dismissing the complaint that alleged that the defendant failed to develop and host a website for the plaintiff’s business despite being paid thousands of dollars for that work. The complaint alleged… Continue Reading
Claims Based on Unauthorized Bank Withdrawals Dismissed due to Plaintiff’s Failure to Monitor and Take Timely Action: Royal Arcanum Hosp. Assn. of Kings County, Inc. v Herrnkind
Posted in Actual Authority, Apparent Authority, CPLR 3212, Implied Authority, Industry: banking, Industry: not-for-profit, Justice Demarest, Carolyn E., Kings, Summary Judgment, UCC 4-406, Unauthorized Signature, Uniform Commercial Code UCCIn a March 28, 2012 decision by Justice Demarest, the court granted the defendants’ motion for summary judgment dismissing the complaint against it pursuant to CPLR 3212. Plaintiff, a not-for-profit corporation, brought suit seeking to recover monies based on allegedly unauthorized withdrawals from its Capital One bank account, by the defendant Herrnkind. Plaintiff alleged that… Continue Reading
Payment and Performance Bond Requirement in Construction Contract May Have Been Waived By Allowing Work on the Project to Commence and Continue: Customweld Indus., Inc. v Pike Co., Inc.
Posted in Breach of Contract, CPLR 3212, Default, Industry: construction, Justice Pines, Emily, Mechanic's Lien, Performance Bond, Suffolk, Summary Judgment, Time of the EssenceIn an April 4, 2012, decision by Justice Pines, the court denied a general contractor’s motion for summary judgment on its claim for breach of a construction contract by its fabrication and installation subcontractors for failing to supply and install structural steel for the project, and for failing to provide payment and performance bonds as… Continue Reading
Summary Judgment in Lieu of Complaint Granted Based on Interest Rate Swap Agreement: Allied Irish Bank, PLC v Young Men’s Christian Ass’n of Greenwich
Posted in CPLR 3213, Industry: banking, Industry: financial services, Justice Fried, Bernard J., New York, Summary Judgment in lieu of ComplaintIn an April 12, 2012 decision by Justice Fried the court granted a bank’s motion for summary judgment in lieu of a complaint, on the issue of liability, in a case arising from an interest rate swap agreement. The interest swap agreement was intended to hedge one-half of defendants’ exposure on over $20 in municipal… Continue Reading
Managing Member Allegedly Defrauding LLC Cannot Stop His Removal and Sale of the Property: Matter of Sagres 2001 LP v. Sagres Partners LLC
Posted in Fraud, Industry: real estate, Justice Kitzes, Orin R., Preliminary Injunction, QueensIn an April 24, 2012 decision by Justice Kitzes, the court denied a former LLC managing member’s motion to declare as void votes taken at a special meeting and enjoining the new managing members from selling the entities’ real property holdings. Petitioner received notice on December 13, 2011 that the day before a meeting was… Continue Reading
Non-member of the LLC Unable to Bring Motion for Dissolution: JG Club Holdings v Jacaranda Holdings
Posted in Dissolution, Industry: entertainment, Intervention, Justice Kornreich, Shirley Werner, Limited Liability Company Law 702, New YorkIn an April 20, 2012 decision by Justice Kornreich, the court dismissed the motion of the proposed intervenors (“Intervenors”) to intervene to assert a claim for the dissolution of, and to appoint a temporary receiver to the derivative plaintiff Jacaranda Club, LLC (“Club”), the operator of “Sapphire,” a “gentleman’s nightclub.” The Intervenors owned approximately 7%… Continue Reading
Court Finds that Claims Fail on the Merits, Not due to Jurisdiction: Tudeme v Walters
Posted in Breach of Contract, Industry: healthcare, Justice Ramos, Charles E., Law of the Case, Motion to Dismiss, New York, Personal Jurisdiction, Piercing Corporate Veil, Subject Matter JurisdictionIn an April 24, 2012 decision by Justice Ramos, the court granted the individual and corporate defendants’ motion to dismiss certain the causes of action of the amended complaint for breach of contract and piercing the corporate veil. The court rejected the defendants’ argument dismissal was warranted due to the technical errors in the filing… Continue Reading
Court Finds Bank’s Seizure of Funds as Set-Off Invalid and Orders Payment Over to Petitioner under CPLR 6214: Southampton Brick & Tile, LLC v The Suffolk County National Bank
Posted in CPLR 6214, Industry: banking, Justice Whelan, Thomas, Levy Upon Property, Set-Off, Special Proceeding, SuffolkIn a December 29, 2011, decision by Justice Whelan, the court granted petitioner’s motion in connection with a special proceeding to compel payment of certain funds held on deposit with respondent under CPLR 6214. Petitioner’s motion related to a prior order from the court restraining the funds from removal, which was issued in connection with… Continue Reading
Claims That Competitor Didn’t Make Proper Pension Contributions Preempted by Federal Law: Midtown Express LLC v Uptown Communications & Elec., Inc.
Posted in Conversion, CPLR 3211, Industry: construction, Industry: telecommunications, Justice Kitzes, Orin R., Motion to Dismiss, Preemption, Queens, Tortious Interference with Business Relations, Unjust EnrichmentIn a January 24, 2012 decision by Justice Kitzes, the court dismissed plaintiff’s complaint bringing claims for tortious interference with plaintiff’s prospective economic advantage, unjust enrichment and conversion because the claims were preempted under federal law. Plaintiff and defendant were competitors, both of whom installed cable television, internet and telephone services for Time Warner Cable. Both parties… Continue Reading
Law Firm and Attorney Disqualified from Representing Plaintiff due to Materially Adverse Conflict: Grovick Props. LLC v 83-10 Astoria Blvd
Posted in Attorney-Client Relationship, Conflict of Interest, Justice Driscoll, Timothy, Materially Adverse Conflict, Motion to Disqualify, Nassau, WaiverIn a February 27, 2012 decision by Justice Driscoll, the court granted the defendants’ motion to disqualify the plaintiff’s attorney (“Attorney”) and his law firm, Phillips Nizer, LLP (“PN”). The plaintiff, a purchaser or real property previously operated as a gas station, brought suit against the prior owners and operators seeking to recover the costs… Continue Reading
Court Dismisses All Pleaded Causes of Action but Sustains Complaint on the Basis of an Unpleaded Claim for Breach of Contractual Warranty: Pesca v Barbera Homes, Inc.
Posted in Albany, — Breach of Warranty, Breach of Contract, Contract Interpretation, CPLR 3012, CPLR 3212, Fraud, Industry: construction, Industry: real estate, Justice Platkin, Richard, Limited Warranty, Negligence, Summary JudgmentIn a March 8, 2012, decision by Justice Platkin, the court granted defendant’s motion for summary judgment dismissing plaintiffs’ causes of action for negligence, breach of contract, breach of statutory warranty, and fraud. Plaintiffs entered into a contract for the purchase of a newly-constructed home with defendant-builder. After closing, plaintiffs sued defendant in connection with problems related… Continue Reading
Matrimonial Divorce Action Does not Preclude Business Divorce Action: Gorelik v Gorelik
Posted in Justice Demarest, Carolyn E., Kings, Res Judicata, Shareholder DisputeIn an April 12, 2012 decision by Justice Demarest, the court denied the defendants’ motion to dismiss the complaint on the grounds that the action is barred by a marital divorce action in New Jersey and resolved by a Marital Settlement Agrement. The husband, and individual plaintiff, and his wife, one of the defendants, were the… Continue Reading
Bank Did Not Negligently Misrepresent or Fraudulently Induce Borrower to Pay-off Mortgage: 50-01 Realty LLC v. Brooklyn Federal Savings Bank et al.
Posted in CPLR 3211, Fraudulent Inducement, Industry: insurance, Justice Schmidt, David I., Kings, Motion to Dismiss, Negligent Misrepresentation, Oral ModificationIn a March 28, 2012 decision by Justice Schmidt the court dismissed a complaint against a bank sounding in breach of contract, fraudulent inducement and negligence misrepresentation. The borrower originally had one loan from the bank secured by two different properties. The loan was later refinanced and split in two: a $6 million loan was secured by… Continue Reading
Economic Justification Defense Fails Where Defendant Cannot Show that Contract Interference Was in the Financial Interest of Its Affiliate: Due Pesci Inc. v Threads for Thought, LLC
Posted in Business tort, CPLR 3211, Economic Justification Defense, Industry: manufacturing, Justice Bransten, Eileen, Motion to Dismiss, New York, Special Proceeding, Tortious Interference with Business RelationsIn a February 6, 2012, decision by Justice Bransten, the court denied defendants’ motion to dismiss plaintiff’s cause of action for tortious interference with a contract. Plaintiff sold defendant-manufacturer’s apparel lines under an agreement, allegedly as an exclusive sales agent. Plaintiff claimed that defendant-manufacturer began selling its apparel lines through another sales group and asserted a claim… Continue Reading
Convenience of Material Witnesses Best Served by Change of Venue to Suffolk County: Long Island Orthotics & Prosthetics v A Step Ahead Prosthetics
Posted in Change of Venue, CPLR 510, Industry: healthcare, Justice Driscoll, Timothy, NassauIn a March 27, 2012 decision by Justice Driscoll, the court granted the defendants’ motion pursuant to CPLR 510(3) to change the venue of the action to the Supreme Court of Suffolk County, based upon the convenience of material witnesses. The case arose out of the defendants’ alleged unauthorized acquisition of the plaintiffs’ confidential patient… Continue Reading
County Denied E-Discovery from LIPA: County of Suffolk v Long Island Power Auth.
Posted in Article 78, Discovery, Electronic Discovery, Industry: public utility, Justice Emerson, Elizabeth, Motion to Compel Discovery, SuffolkIn an April 3, 2012 decision by Justice Emerson, the court denied the plaintiff’s Article 78 petition to compel LIPA to produce certain e-mails in response to a FOIL request the plaintiff made in connection with pending litigation between the parties. The plaintiff commenced the special proceeding after LIPA denied its FOIL request for certain… Continue Reading
Defenseless Deli Leads to Judgment of Foreclosure and Appointment of Referee to Compute: Dunhill Asset Servs. III LLC v. 175 Dixon Ave. Realty Inc.
Posted in Guaranty, Industry: banking, Justice Whelan, Thomas, Mortgages, Receivership, Referee, SuffolkIn a February 24, 2012 decision by Justice Whelan, the court was faced with a motion by the lender for based upon defendants’ alleged default on a Note and Mortgage in connection with a deli operated on commercial property located in Amityville, New York. Plaintiff moved for summary judgment on the Note and to have a… Continue Reading
Failure to Comply with Notice Requirement in Agreement’s No-Action Clause Warrants Dismissal of Complaint: Walnut Place LLC v Countrywide Home Loans, Inc.
Posted in Breach of Contract, CPLR 3211, Demand Futility Doctrine, Derivative Actions, Industry: banking, Industry: financial services, Industry: real estate, Justice Kapnick, Barbara R., Mortgages, New York, Special Proceeding, StandingIn a March 28, 2012, decision by Justice Kapnick, the court granted defendants’ motion to dismiss. Plaintiff-investors brought suit derivatively on behalf of two securitization trusts holding certain mortgage-backed securities against defendant-lenders alleging breach of the agreements governing the administration of the mortgage loans sold by defendants. Defendants moved to dismiss the complaint contending that plaintiffs were… Continue Reading
Plaintiff-Side Attorney Financing Agreements Not Usurious Loans but Valid Non-Recourse Advances: Kelly, Grossman & Flanagan, LLP v Quick Cash, Inc.
Posted in Industry: legal, Justice Pines, Emily, Motion to Dismiss, Non-Recourse Loan, Penal Code 190.40, Suffolk, Summary Judgment, UsuryIn a March 29, 2012 decision by Justice Pines, the court granted the defendants’ motion, which the court had converted from a CPLR 3211(a)(7) motion to dismiss into a to a motion for summary judgment, dismissing the plaintiffs’ complaint. At issue were five agreements through which the defendants, entities that provide recourse loans or non-recourse… Continue Reading
New York Court Cannot Reach Funds Belonging to Foreign Government in Foreign Bank Account Even to Aid in Arbitration: Matter of International Legal Consulting Ltd. v Malabu Oil & Gas Ltd.
Posted in Arbitration, Breach of Contract, Industry: financial services, Justice Fried, Bernard J., New York, Preliminary Injunction, Service of ProcessIn a March 15, 2012 decision by Justice Fried, the court denied the plaintiff’s ex parte application for an order of attachment, pursuant to CPLR § 6202, of funds held in a JP Morgan Chase bank account in London in the name of the Federal Government of Nigeria. The plaintiff, a consulting company, brought the… Continue Reading
Motion for Summary Judgment in Lieu of Complaint Granted as to Liability of Guarantor on Loans made for Construction of Manhattan Hotel: Orchard Hotel, LLC v Zhaviam
Posted in CPLR 3213, Default, Guaranty, Industry: hospitality, Justice Demarest, Carolyn E., Kings, RPAPL 1301, Stay, Summary Judgment in lieu of ComplaintIn a January 31, 2012 decision by Justice Demarest, the court granted the plaintiff-assignee’s motion pursuant to CPLR 3213 for summary judgment in lieu of complaint on the issue of liability only, holding the action otherwise in abeyance, pending the grant of leave by the New York County court in a related foreclosure action. The… Continue Reading
Unopposed Order of Seizure Denied Because of Questions Raised By Application: All Points Capital Corp. v. Parkside Recycling, Inc. and Vertuccio
Posted in CPLR 3215, CPLR 7101, Default, Industry: financial services, Justice Driscoll, Timothy, Nassau, Order of SeizureIn a February 2, 2012 decision by Justice Driscoll, the court denied (without prejudice) a motion for an Order of Seizure and default judgment. The motion was originally brought by an Order to Show Cause. In a prior decision, the court reserved decision and allowed the plaintiff to make additional submissions in support of its motion. After these… Continue Reading
Article 78 Proceeding Fails on the Merits Due to Broad Statutory and Constitutional Authority: Ontario County v Harrison-Ross
Posted in Albany, Article 78, CPLR 217, Declaratory Judgment, Government, Justice Platkin, Richard, Motion to Dismiss, Statutory InterpretationIn a March 7, 2012 decision by Justice Platkin, the court converted the complaint, which sought a declaratory judgment that a Final Report issued by the New York State Commission of Correction, and Executive branch agency, concerning the death of an inmate at Ontario County Jail, was invalid, into a special proceeding under Article 78… Continue Reading