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Representative Cases and Matters for Joel M. Aurnou

Business Litigation - Allegation of Criminal Activity - Forfeiture of Property - Forum Non Coveniens

United States of America v. Approximately $2,718,665.70 Former on Deposit in Pershing, LLC, Account Number 009585 Held in the Name of Krishna Enterprises Ltd.

Sometimes, in civil litigation there is an allegation by a governmental entity of potential wrongdoing that could prevent our clients from getting or keeping their property.  Here, several of our lawyers, Phillip C. LandriganDina M. Aversano and Joel M. Aurnou (working with Milton R. Gleit) represented the named owner of a brokerage account that was seized by the United States on the grounds that the property was traceable to criminal activity, e.g., money laundering and drug trafficking. In addition to our client, a Panamanian resident was under surveillance by federal agents when exchanging cash with a Peso converter in Panama; and another related business entity made claims for return of the funds formerly in the account. With this background, our lawyers moved to dismiss the government’s civil forfeiture complaint because there were insufficient allegations tracing funds deposited in the account to any criminal activity, and based on the applicable statute of limitations. In the face of our arguments, the US Attorney for the Southern District abandoned the civil forfeiture action initiated by the US Attorney's Eastern District office, thereby consenting to the dismissal of the government’s complaint. The competing claims for “return” of the seized property, however, remained before the court. We moved to dismiss those claims based on Artticle III of the Constitution and forum non conveniens and successfully argued that the Panamanian claimants were mere general creditors with no standing to assert a right for “return” of the seized property, and no party was a US citizen or doing business in the US. The Southern District, per Judge Victor Marrero, granted our motion to dismiss the remaining claims on the alternative forum non conveniens grounds, conditioned only on our client consenting to jurisdiction in Dubai, United Arab Emirates, where it conducts business in any event.

Business Litigation - Motion to Consolidate

Mechanic’s Lien Foreclosure Action Not Consolidated with Bank’s Foreclosure Action

Courts strive for efficiency in utilizing their resources so as to lead to a resolution. Knowing when to make a motion and when not to make a motion is an important decision in the course of all litigation. Dina M. Aversano together with Joel M. Aurnou successfully defended against a motion brought by their adversary who sought to consolidate two separate foreclosure actions in Westchester County Supreme Court. Here, a joint resolution of both actions would neither promote the efficient use of the court’s resources nor protect the interests of the party we represented.

Matrimonial & Family Law - Appellate Practice - Child Relocation

Tsui v. Tsui, 2012 NY Slip Op 06800

One of the most satisfying things our Matrimonial & Family Law lawyers do is to help our clients succeed on child custody issues. Here, Joel M. Aurnou convinced the Appellate Division, Second Department, to unanimously affirm the lower court's decision granting Joel's client permission to relocate to Texas with four small children during a pending matrimonial. Citing "a sound and substantial basis in the record" and relying upon Matter of Tropea v. Tropea (argued by Kathleen Donelli of this firm), the Court unhesitatingly approved these elements of proof: (1) the husband did not make regular support payments, (2) the plaintiff demonstrated she could not meet expenses in New York for that reason, and (3) she would receive financial and child care assistance from, and residence rent-free with, her parents. The Court quoted Tropea as follows: "[E]conomic necessity . . . may present a particularly persuasive ground [for] permitting the proposed move", and so held in affirming in this case.

Appellate Practice - Matrimonial & Family Law - Discovery Dispute - Motion to Quash

Morganti v. Morganti, 72 A.D.3d 662 (2d Dep't 2010)

Pre-hearing discovery disputes are often a subject of decisions by the courts. In Morganti, Joel M. Aurnou’s client was subpoenaed for her financial records by her husband's ex-wife. In the lower court, Joel sought to quash the supboena. The Appellate Division, Second Department, unanimously reversed the lower court and quashed the subpoena, finding that the lower court "improvidently" denied Joel's motion.

Legal Malpractice - Jury Trial & Settlement - Effective Cross Examination

Legal Malpractice Case Settled During Trial & After Effective Cross Examination

Successful settlements often only happen during a trial, and just before a jury verdict. This legal malpractice matter was jointly tried before a jury by Joel M. Aurnou and Joseph J. Brophy. The allegation was that the our client’s matrimonial lawyer had failed to identify an expert witness in time, forcing her to settle her matrimonial case for a fraction of its true value. To add insult to injury, her former lawyer then sued her for unpaid attorney’s fees. She retained McCarthy Fingar, and counter claimed for legal malpractice. The case only went to trial after Joel Aurnou and Joe Brophy had defeated two attempts by the lawyer to have the counterclaim dismissed. At trial, after three days of cross-examination of the defendant attorney by Joel, the insurer added $500,000 more to its settlement offer that permitted the case to end very favorably for our client.

Appellate PracticeBusiness Litigation - Cancellation of Unauthorized Mortgages

ER Holdings, LCC v. 122 W.P.R., 65 A.D.3d 1275 (2d Dep’t 2009)

Joel M. Aurnou convinced the Appellate Division, Second Department, to affirm a lower court decision granting summary judgment against a title company in favor of Joel's clients, and cancelling two unauthorized mortgages on its flagship real estate holding. The Court also resolved in Joel's client's favor issues of apparent authority and due diligence.

Appellate PracticeBusiness Litigation - Ownership of Shopping Centers

Tedesco v. Tedesco, 64 A.D.3d 583 (2d Dep’t 2009)

In Tedesco, Joel M. Aurnou prevailed in litigation over the ownership of shopping centers. The Appellate Division, Second Department, unanimously affirmed a lower court ruling granting summary judgment to Joel’s clients covering ownership of a $4 million shopping center and several other commercial and residential properties. The Second Department also rejected  Appellant’s contention that summary judgment was premature because  Appellant had not yet had any examinations before trial.

Appellate Practice - Matrimonial & Family Law - Enforceability ot Settlement Agreement - Dispute on Annuity

O’Shell v. O’Shell, 54 A.D.3d 914 (2d Dep’t 2008)

When matrimonial lawyers settle cases, great skills must be used to insure that a lawyer's client gets the benefit of the negotiated bargain. Even then, there are often disputes over the terms and conditions of settlement agreements. Here, the Appellate Division, Second Department, affirmed a lower court order preventing Joel M. Aurnou’s adversary from obtaining any part of a $1.4 million annuity from a matrimonial settlement dictated on the record in open court.

Surrogate’s Court Litigation - Appellate Practice - Post Nuptial Agreement Contest - Replacing Condo Unit Triggers Ademption

Davis v. Willinger, 31 A.D.3d 429 (2d Dep't 2006)

Our lawyers represent clients on dispute on prenuptial and post  nuptial agreements. Here, in a declaratory judgment action involving an esoteric point of law, Stephen Davis and Joel M. Aurnou achieved an abatement of a surviving spouse’s contract with her husband to bequeath the proceeds of sale of the couple’s Miami Beach oceanfront condominium residence to her late husband’s daughter. Applying the ademption concept, the trial court - unanimously affirmed by the appellate court - ruled that the promise to bequeath pertained only to the condominium owned by the couple at the time of the promise, notwithstanding that they replaced their original condominium with another in the very same Collins Avenue condominium building.

Appellate PracticeMatrimonial & Family Law - Child Custody - Parental Alienation

J.F. v. L.F., 181 Misc. 2d 722, 694, N.Y.S.2d 592 (1999), aff’d sub.nom., Faneca v. Faneca, 270 A.D.2d 489, 705 NYS2 281 (2d Dep’t 2000), lv den., 95 N.Y.2d 756

Changes in circumstances sometimes require a change in child custody between the parties. Joel M. Aurnou prevailed at trial and unanimously on appeal in changing custody to the father, where the mother had alienated the children. J.F. v. L.F. is a leading case on parental alienation as a basis for a change of custody.

Appellate Practice - Legal Malpractice - Paternity - Motion to Dismiss

Savattere v. Subin Associates, PC, 261 A.D.2d 236, 690 N.Y.S.2d 229 (1st Dep’t 1999)

When a lawyer is sued by his client, the invariable first legal battle is a motion to dismiss the legal malpractice claim. In Savattere, Joel M. Aurnou persuaded the trial court to deny the defendant’s motion to dismiss the legal malpractice claim. Then, Joel persuaded the Appellate Division, First Department, to unanimously affirm the lower court decision on the appeal. Afterwards, Joel settled the case for his client very favorably.

Appellate Practice - Legal Malpractice - Motion for Dismissal - Enforcement of Settlement

Wolstoncroft v. Sassower, 124 A.D.2d 582, 507 N.Y.S.2d 728 (2d Dep’t 1986); 212 A.D.2d 598, 623 N.Y.S.2d 7 (2d Dep’t 1995); 234 A.D.2d 540, 651 N.Y.S.2d 609 (2d Dep’t 1996)

One example of legal malpractice is a lawyer's failure to bring or defend against a lawsuit. In Wolstoncroft, a lawyer had failed to defend a lawsuit brought against a client. But then, when the legal malpractice was brought for his client by Joel M. Aurnou, the lawyer then sought to dismiss the claim. Joel persuaded the trial court to deny the motion, and the Appellate Division, Second Department, unanimously affirmed the lower court decision. Later on, when the case went to trial, Joel settled the legal malpractice claim during jury deliberation at the trial. Even later, Joel brought on a proceeding to enforce the settlement.

Appellate PracticeBusiness Litigation - Punitive Damages

Kelly v. Defoe Corp., 223 A.D.2d 529, 636 N.Y.S.2d 123 (2d Dep’t 1995)

In Kelly, Joel M. Aurnou succeeded in getting a unanimous appellate opinion dismissing a punitive damage claim against his corporate client.

Appellate PracticeBusiness Litigation - Insurance Coverage - Duty to Defend

Allstate v. Zuk, 78 N.Y.2d 41, 571 N.Y.S.2d 429 (1991)

In an insurance coverage case, Joel M. Aurnou successfully persuaded the New York  Court of Appeals to unanimously reverse two unanimous Appellate Division’s decisions. This case was  featured in the Annual Survey of N.Y. Law: 43 Syracuse L. Rev. 77, 139 (1992).

Appellate PracticeBusiness Litigation - Contract Dispute

Generas v. Hotel Des Artistes, 117 A.D.2d 563, 499 N.Y.S.2d 69 (lst Dep’t 1986)

In Generas, Joel M. Aurnou represented a famous hotel client in a contract dispute. Joel won a unanimous Second Department appellate reversal of the denial of his summary judgment motion by the trial court.

Appellate Practice - Business Litigation - Criminal Law

People v. DeConto, 80 N.Y.2d 433, 591 N.Y.S.2d 131 (1992), aff’g 172 A.D.2d 684 (2d Dep’t)

In DeConto, Joel M. Aurnou successfully prevailed on appeal in both the Appellate Division and the New York Court of Appeals,  in reversing a Supreme Court Class A felony drug conviction, based on  improper jury selection procedure.

Appellate Practice - Business Litigation - Criminal Law - Prosecutorial Misconduct

People v. Shapiro, 50 N.Y.2d 747, 431 N.Y.S.2d 422 (1980)

In a highly publicized promoting prostitution case, the Court of Appeals agreed with all three of Joel M. Aurnou's contentions for the defense: improper wiretap evidence, prosecution misconduct, and the need to sever the indictments. After indictment for 69 felony counts, trial and successful appeal, prosecutors and Joel’s client settled for a single misdemeanor.

Appellate Practice - Matrimonial & Family Law - Equitable Distribution

Conceicao v. Conceicao, 203 A.D.2d 877, 611 N.Y.S.2d 318 (3d Dep’t 1974)

Some cases simply cannot be settled. In matrimonial cases, the amount of equitable distribution awarded to the parties sometimes cannot be resolved amicably and requires a trial. In Conceicao, Joel M. Aurnou representing a client on an equitable distribution issue, obtained a unanimous affirmance of the trial court’s 70% equitable distribution award in his client's favor.

Appellate Practice - Business Litigation - Doctor Admitted to Hospital Staff

Schwartz v. Northern Westchester Hospital, 43 A.D.2d 952, 351 N.Y.S.2d 955 (2d Dep’t 1974)

In Schwartz, Joel M. Aurnou successfully represented a doctor and  compelled the defendant hospital to grant his immediate full admission to the hospital staff without any probationary period.

Business Litigation - Appellate Practice - Landlord/Tenant - Tax Base Mutual Ignorance Fails To Support Reformation

Almar Realty Corp. v. Sockolof Bros., 35 A.D.2d 986 (2d Dep't 1970), aff'd, 29 N.Y.2d 735 (1971)

Stephen Davis and Joel M. Aurnou prevailed in a reformation action by distinguishing mutual ignorance from mutual mistake of fact.  The result was their client’s warehouse tenant paying a  real estate tax escalation rental over a base of a vacant land assessment and not against a base assessment of the completed warehouse building.

Appellate Practice - Business Litigation - Criminal Law

Harris v. NY, 401 U.S. 222, 91 S. Ct. 643, 28 L.Ed.1 (1971)

Harris v. U.S., argued by Joel M. Aurnou, was the first major criminal case of the Burger court. See also 80 Yale L.J. 1198, 1211-17 (1971).

Appellate Practice - Medical Malpractice and Personal Injury - Recovery under Labor Law In Excess of Policy Limits

Gasperino v. Larsen Ford, Inc., 300 F. Supp. 1182 (SDNY 1969), aff’d, 426 F.2d 1151 (2d Cir. 1970), cert. den., 400 U.S. 941 (1970)

In Gasperino, at trial and on appeal, Joel M. Aurnou obtained a wrongful death recovery in excess of policy limits under § 299 of the New York Labor Law (ventilation), along with specific approval by the 2d circuit panel of his trial record.

Business Litigation - Discrimination Suit - Injunctive Relief

Male v. Crossroads Assoc. et al., 320 F. Supp. 141 (S.D.N.Y. 1970)

In Male, Joel M. Aurnou represented the City of Peekskill, its Mayor and  Urban Renewal Agency, in a discrimination suit. The action against all of  these defendants was subsequently dismissed.

Appellate Practice - Business Litigation - Criminal Law

People v. Mirenda, 23 N.Y.2d 439, 297 N.Y.S.2d 532 (1969)

In Mirenda, Joel M. Aurnou obtained appellate reversal of a murder conviction in a case originally tried by William Kunstler, Esq.. On retrial, despite prosecution testimony of two eyewitnesses and three accomplices, defendant represented by Joel was acquitted by a unanimous jury.

Surrogate’s Court Litigation - Will & Trust Contests - Settlement After Effective Cross Examination

Estate of Emily Vogel (Westchester County Surrogate's Court)

One crucial issue in Will & Trust Contestsis whether the decedent ever took action to destroy his purported Last Will and Testament. This Will Contest was settled favorably for the contestant (nephew), after cross-examination of the proponent by Joel M. Aurnou tended to establish revocation of the “Last Will” by destruction of a duplicate original in the testatrix possession.

Business Litigation - Corporate and General Business

Apex Pools v. Paul (Superior Court, Cambridge, Mass.)

Joel M. Aurnou represented a client, pro hac vice, in Superior Court in Cambridge, Massachusetts, in where Joel's client sought an injunction, contempt and damages for violation of  a restrictive covenant in a franchise agreement Joel drew. Defendant, caught in perjury during Joel’s cross-examination, threw up while on witness stand. Defendant subsequently settled for more than the recorded judgment to avoid jail.

Legal Malpractice - Action Against Former President of American Trial Lawyers

Olesker v. Dempsey

Lawyers must never forget their solemn duty to protect their clients' rights, even if it means bringing claims against prominent lawyers who have commited legal malpractice. Her, Joel M. Aurnou successfully sued a former president of the American Trial Lawyers on a legal malpractice claim. Joel recovered for the client the full amount demanded.

Business Litigation - Zoning Variance Annulled for Defective Notice

Briscoe v. Bruen (Sup. Ct., Westchester Co.; unreported opinion of Coyle, J.S.C.)

In this case, Joel M. Aurnou succeeded in annulling a variance granted to the famous Tappan Hill Restaurant by reason of defective notice to the affected neighbors.

Matrimonial & Family Law - Private Detective Caught Lying

B v. B

At trials, effective cross examination is often the turning point of the case. Here, Joel M. Aurnou represented the treasurer of a major national corporation in a matrimonial. The private detective was shown by his cross-examination to be lying, and the cause of action for adultery was dismissed during trial. A favorable result for Joel's client followed.

Business Litigation - Criminal Law

U.S. v. Jakic (S.D.N.Y.)

In this case, Joel M. Aurnou client was accused of being a Croatian terrorist. After trial for  14 weeks in the Southern District,  six co-defendants were convicted and sentenced to 40 years each for offenses ranging from murder to interstate transportation of bombs and mailing of letter bombs. Mr. Aurnou’s client was acquitted and went home.

Business Litigation - Criminal Law

People v. Jean S. Harris

Joel M. Aurnou represented Jean S. Harris in the murder case of  Scarsdale Diet author, Dr. Herman Tarnower.

Business Litigation - Criminal Law

People v. Robert Comfort

Joel M. Aurnou successfully represented Robert Comfort, a defendant in the Hotel Pierre eight million dollar holdup.

Business Litigation - Criminal Law

People v. Major Arnold Levine

In San Antonio, Texas, Joel M. Aurnou represented Major Arnold Levine, charged with 2 counts of murder (his wife and son). After Joel discovered that a witness’ alibi statement indicated he knew of the murder before the body was found, the Bexar County District Attorney dismissed all charges against the Major.

Business Litigation - Criminal Law

People v. Hervey

In People v. Hervey, Joel M. Aurnou went to Adams County, Colorado where he participated in the successful appeal of a first degree murder conviction. Before retrial, Mr. Aurnou showed that the testimony at trial of a fingerprint expert, was not merely false, but impossible. The defendant was released shortly thereafter.

Business Litigation - Criminal Law

People v. Robert & Judy Zamber

In People v. Robert & Judy Zamber, Joel M. Aurnou defended a Pennsylvania murder case where the parents of a 7 month old girl were charged with child abuse leading to her death. After his forensic investigation proved  the child died from a rare disease known as osteogenesis imperfecta, the charges were dismissed.

Business Litigation - Criminal Law

People v. Delmar & People v. Jones

In People v. Delmar and People v. Jones, Joel M. Aurnou defended two different Westchester County, New York, defendants in successive trials for the same murder. Both defendants were acquitted.

Business Litigation - Criminal Law

People v. Robert Gaulin

In People v. Robert Gaulin, Joel M. Aurnou successfully defended a retarded young man accused of setting fire to an animal shelter.

Business Litigation - Criminal Law - Unconstitutionality of Business Law, Section 245(13)

People v. Calfayan

In People v. Calfayan, Joel M. Aurnou won a reversal and acquittal, and a declaration that former New York General Business Law, § 245(13) was unconstitutional.