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New York Commercial Division Case Compendium A Searchable Database of Court Decisions Issued by New York’s Commercial Division

Category Archives: Emerson, Elizabeth

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Court Finds Stock-Option Agreement Unenforceable, and Covenant-Not-to-Compete Unreasonable

Posted in Breach of Contract, Emerson, Elizabeth, Manufacturing, Motion to Dismiss, Pharmaceutical, Preliminary Injunction, Suffolk

In a November 24, 2015, Commercial Division decision by Justice Emerson, the court granted the defendants’ motion to dismiss the plaintiff’s amended complaint, which contained causes of action against the individual defendants for breach of covenants not to compete, tortious interference with contract and unfair competition.

Court Disqualifies Defendant’s Counsel for Disclosing Plaintiff’s Confidential Information to Plaintiff’s Opposing Party in Separate Action in Florida

Posted in Emerson, Elizabeth, Legal, Personal Jurisdiction, Shareholder Dispute, Suffolk

In an August 13, 2015 Commercial Division decision by Justice Emerson, the court denied the defendant’s motion to dismiss the complaint and granted the plaintiff’s cross motion for disqualification of the defendant’s counsel.

Continuing-Wrong Doctrine Applies to Extend Statute of Limitations for Breach of Contract Claims against Town of Brookhaven Related to Development of Telecommunications Towers

Posted in Emerson, Elizabeth, Statute of Limitations, Suffolk, Telecommunications

In a July 29, 2015 Commercial Division decision by Justice Emmerson, the court granted the defendant Town of Brookhaven’s motion for reargument and, on reargument adhered to its prior decision which denied in part the Town’s motion for summary judgment seeking dismissal of the claims asserted against the Town based on the statute of limitations.

Attempts to Avoid Creditors Thwarted When Court Finds Evidence of Intent to Defraud Creditors, Granting Plaintiff Summary Judgment: All County Paving Corp. v Darren Constr. Inc.

Posted in Attorneys' Fees, Construction, Emerson, Elizabeth, Fraud, Suffolk, Summary Judgment

In an August 4, 2015 Commercial Division decision by Justice Elizabeth Emerson, the court denied defendants’ motion for summary judgment to dismiss the complaint, and granted plaintiff’s cross-motion for summary judgment as to one of the defendants.

Patently Denied: Court Denied Inventor’s Motion for Partial Summary Judgment in Action Regarding Assignment of Patents

Posted in Declaratory Judgment, Emerson, Elizabeth, Engineering, Summary Judgment

In a February 3, 2015, Commercial Division decision by Justice Emerson, the court denied plaintiffs’ motion for partial summary judgment.  This action was brought by plaintiff Vito Agosta (“Agosta”), an inventor who developed a method of burning liquid ammonia in diesel engines.  The action arose from an assignment of a patent application for Agosta’s invention… Continue Reading

East End Real Estate Agent’s Defamation, Breach of Contract Claims Against Former Brokerage Survive Summary Judgment

Posted in Breach of Contract, Emerson, Elizabeth, Estoppel, Piercing Corporate Veil, Real estate, Suffolk, Summary Judgment

In an October 6, 2014 Commercial Division decision by Justice Emerson, the court granted in part the motion of Defendant real estate brokerage for summary judgment on four causes of action asserted by Plaintiff, a real estate agent who entered into a contractor’s agreement with Defendant. 

Subcontractor’s Motion for Summary Judgment Denied Due to Differing Interpretations of Preconditions for Payment Provisions

Posted in Arbitration, Construction, CPLR 3211, Documentary Evidence, Emerson, Elizabeth, Motion to Dismiss, Suffolk, Summary Judgment

In a September 18, 2014 Commercial Division decision by Justice Emerson, the court denied the plaintiff’s motion for summary judgment and also denied the defendant’s cross motion to dismiss the complaint.  The plaintiff-subcontractor brought this action to recover the final payment allegedly due it by the defendant-general contractor, in connection with renovation work to a… Continue Reading

Derivative Complaint Dismissed for Failure to Make Demand on Board of Directors or to Show Demand Futility

Posted in CPLR 3211, Demand Futility Doctrine, Derivative Actions, Emerson, Elizabeth, Pharmaceutical, Suffolk

In a June 17, 2014 Commercial Division decision by Justice Emerson, the court dismissed an amended complaint bringing derivative claims for failure to make a demand on the board of directors before commencing the action or showing that such a demand would be futile.  Applying Delaware law, the court found that the allegations in the… Continue Reading

Party Cannot Seek Affirmative Relief in Opposition to Summary Judgment without Serving a Notice of Cross-Motion for Such Relief

Posted in CPLR 3211, CPLR 3212, Emerson, Elizabeth, Motion to Dismiss, Real estate, Suffolk, Summary Judgment

In a January 8, 2014, decision by Justice Emerson, the court granted plaintiff-mortgagee’s motion for summary judgment in an action to foreclose a commercial mortgage, finding that plaintiff had produced the requisite mortgage, unpaid note and guaranties, and evidence of default necessary to establish its prima facie entitlement to judgment as a matter of law. … Continue Reading

Long-Arm Jurisdiction Lacking Despite In-State Distributor and Sale of Products to Businesses Operating in New York

Posted in Breach of Contract, Breach of Promissory Note, Conversion, CPLR 3211, Doing Business, Emerson, Elizabeth, Entertainment, Fraud, Motion to Dismiss, Personal Jurisdiction, Suffolk, Unjust Enrichment

In a January 14, 2014 decision by Justice Emerson, the court granted the defendants’ motion to dismiss based on the court’s lack of personal jurisdiction.  The defendants were each Delaware corporations having a principal place of business in California. In 2001, the plaintiff (“Larsen”), a New York resident, bought shares of the defendant Virtual Technologies… Continue Reading

Former Employee’s Familiarity with Former Customer held Insufficient Basis to Enforce Non-Compete: B.O. Tech., L.L.C. v Dray

Posted in Emerson, Elizabeth, Information Technology, Non-compete, Order to Show Cause, Preliminary Injunction, Suffolk

In a June 27, 2013 decision by Justice Emerson, the court denied the plaintiff’s motion for a preliminary injunction, which sought to enjoin the defendant, a former employee of the plaintiff, from rendering services to one of the plaintiff’s former customer’s (“Maesa”) based on the terms of a non-compete and non-solicitation agreement (“Agreement”). B.O. Tech,… Continue Reading

Claims Involving an Alleged Improper Sale of a Florida Property by a Florida Company Subject to Dissolution in Florida Must Be Litigated in Florida: Picarella v HMA Props., LLC

Posted in CPLR 3211, Emerson, Elizabeth, Limited Liability Companies, Motion to Dismiss, Real estate, Suffolk

In a June 17, 2013, decision by Justice Emerson, the court granted defendants’ motion to dismiss the complaint on grounds of inconvenient forum.  Plaintiff, a 35% member of defendant-real estate holding LLC, commenced an action against the company and its three other members for an alleged improper sale of real property.  The property had been… Continue Reading

Residential Mortgage Provider Found to have Defaulted Under Lease for Copy Machines: CIT Tech. Fin. Servs., Inc v Fraklin First Fin., Ltd.

Posted in Breach of Contract, Emerson, Elizabeth, Financial services, Nassau, Unjust Enrichment

In a June 12, 2013 decision after trial by Justice Emerson, the court granted judgment in the Plaintiff’s (CIT) favor in a case arising from the defendant’s (FFF) alleged default under a lease agreement. In February of 2006, FFF, a residential mortgage provider, entered into a written lease agreement (Lease) for copy machines to be… Continue Reading

Summary Judgment Granted in Part and Denied in Part in Suit Brought by Age-Restricted Retirement Community Homeowners Association against Sponsor: The Waterways at Bay Pointe Homeonwers Assoc., Inc. v Waterways Dev. Corp.

Posted in Breach of Contract, Breach of Fiduciary Duty, CPLR 3212, Emerson, Elizabeth, Fraud, Misrepresentation, Real estate, Suffolk, Summary Judgment

In a February 25, 2013 decision by Justice Emerson, the court denied in part and granted in part the plaintiff’s motion and the defendant’s cross motion for summary judgment, respectively. The case arose from a 1997 agreement (the “1997 Agreement”) entered into by the defendant sponsor (“Sponsor”) of an age-restricted retirement community and the plaintiff-homeowner’s… Continue Reading

The Lack of Proper Pleading Precludes a Claim for Violations of the Debtor-Creditor Law: S&M Heating Corp. v Malacuso

Posted in Breach of Contract, Breach of Fiduciary Duty, Emerson, Elizabeth, Fraud, Fraudulent Conveyance, Motion to Amend, Suffolk

In a December 13, 2012 decision by Justice Emerson, the court granted in part and denied in part the plaintiffs’ motion for leave to amend the complaint. The court denied leave to add additional defendants and assert claims against them for violations of sections 273 and 276 of the Debtor-Creditor Law . The gravamen of… Continue Reading

Plaintiff Waives Right to Arbitrate Claim that is the Subject of an Order to Show Cause Seeking Mandatory Relief: Cotugno v Bartkowski

Posted in Arbitration, Emerson, Elizabeth, Order to Show Cause, Suffolk, Technology

In an October 5, 2012 decision by Justice Emerson, the court granted the defendants’ motion to stay arbitration of the plaintiff’s claim that sought to compel the individual defendant to disgorge corporate funds that he used to pay his legal fees.  The plaintiff entered into a shareholder’s agreement with defendant Anthony Bartkowski which established their… Continue Reading

Court Grants Injunctive Relief on Trade Secrets and Unfair Competition Claims Despite the Absence of Non-Compete Agreement

Posted in Agriculture, Emerson, Elizabeth, Preliminary Injunction, Suffolk

In a September 4, 2012, decision by Justice Emerson, the court granted plaintiff’s motion for a preliminary injunction, enjoining defendants from using any of plaintiff’s confidential and proprietary information, intellectual property, or trade secrets and requiring defendants to return all such information in their possession within 30 days.  Plaintiff-ad agency sued defendant-former employees for allegedly… Continue Reading

Membership in LLC Standing Alone Does Not Confer Personal Jurisdiction over Foreign Entity: Global Mar. Power, Inc. v Kustom Engines & Performance Eng’g

Posted in Breach of Contract, Emerson, Elizabeth, Forum Selection Clause, Manufacturing, Motion to Dismiss, Personal Jurisdiction, Suffolk

In a September 4, 2012 decision by Justice Emerson, the court granted in part and denied in part the defendants’ motion to dismiss the amended complaint which alleged that the defendants breached the parties’ contract by failing to pay $10,000 to purchase the plaintiff’s engine manufacturing business. The court initially granted the plaintiff leave to… Continue Reading

Court Denies Motion to Renew Finding No Additional or New Facts to Alter Its Previous Rulings on Summary Judgment: County of Suffolk v Long Island Power Authority

Posted in Emerson, Elizabeth, Municipal, Statute of Limitations, Suffolk, Summary Judgment

In an May 8, 2012, decision by Justice Emerson, the court denied plaintiff’s motion to renew a prior cross motion for summary judgment and for leave to amend its complaint for a second time.  The motions arose out of a settlement agreement between plaintiff-county and defendant-power company resolving various actions and proceedings involving a nuclear… Continue Reading