Sellmon v. Cotter (Sup. Ct., Westchester Co., Index No. 11444/11)
McCarthy Fingar's Business Litigation and Real Estate Transactions lawyers sometimes represent clients in lease disputes. Here, Robert H. Rosh successfully moved to dismiss the complaint in which the plaintiff-landlord sued our client to recover damages under a guaranty of rental payments for a one year lease entered into by our client’s son as tenant. The issue in this case was whether the guarantee signed by our client was limited to her son’s one year lease, or extended to a renewal lease that our client’s son had entered into after the expiration of the one year lease, and allegedly defaulted under. In dismissing the complaint on Rob’s motion, the court held that, under New York law, a guarantor is not bound beyond the express terms of his guarantee. And, because the guarantee did not expressly states that the parties intended the guarantee to continue during periods of renewal, our client’s liability under the guarantee did not extend to the renewal lease.
Wiernik v. Kurth (Sup. Ct., Westchester Co., Index No. 6216/07) (2010)
Robert H. Rosh successfully prosecuted this action by obtaining for our clients a favorable settlement under which the defendants confessed judgment. The dispute arose out of a construction project involving the construction of an addition to our clients’ residence. The construction was, as alleged in the complaint, replete with structural deficiencies, and the defendant-contractor was not a licensed home improvement contractor.
Business Litigation - Breach of Fiduciary Duty & Fraud
Breach of Fiduciary Duty, Fraud & Other Torts (U.S. Dist. Ct., S.D.N.Y.) (2008)
In a case brought in the United States District Court in and for the Southern District of New York, Robert H. Rosh and Robert M. Redis successfully defended an action brought against one of our clients alleging various federal and state law claims, including claims under the Federal Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961-68, New York’s General Business Law §349, breach of fiduciary duty, aiding and abetting a breach of fiduciary duty and fraud.
Business Litigation - Land Use Litigation - Real Estate Easements
Guastella v. Wheeler, Sup. Ct., Westchester Co., Index Nos. 77891/06; 10129/07
Robert H. Rosh successfully obtained injunctive relief, enjoining neighboring property owners from diverting surface and storm water onto our clients' land, and interfering with our clients' use of a driveway easement. Following a two (2) week bench trial, a verdict was rendered in favor of our clients, directing the neighboring defendants to remove at their own expense certain structures on their land that were causing the diversion of water onto our clients’ land. Pursuant to the verdict, our clients were also granted a license to enter the defendants’ land for purposes of removing, again at defendants’ expense, certain landscaping improvements that were interfering with our clients’ use and enjoyment of their driveway easement over the defendants’ land.
Following plaintiffs’ victory, one of the neighboring defendants attempted to retaliate by spray painting a portion of the surface of the cobblestone driveway on our clients’ land. On our clients’ behalf, Rob successfully prosecuted an action and obtained an award of damages against the defendants to compensate plaintiffs for the loss and damages sustained to their driveway.
Business Litigation - Partnership Disputes - Misuse of Funds
Settlement of Partnership Dispute on Misuse of Funds on Eve of Trial
McCarthy Fingar's Business Litigation group often litigates and tries cases on disputes between business owners. On the eve of trial, Robert H. Rosh successfully settled a dispute involving the purported misuse of partnership funds, and the ownership of certain assets. The defendant-partner claimed ownership and entitlement to assets which were purchased in his name, but which were reflected as assets of the partnership on its books and tax returns. After the defendant-partner unsuccessfully attempted to prevent Rob from offering damaging expert opinion evidence at trial, Rob settled the dispute on terms very favorable for our client.
Business Litigation – Pro Bono Work – Department of Labor Determination Disqualifying Claimant from Receiving Benefits Overturned on Administrative Appeal
Unemployment Insurance Appeal Board, White Plains, New York, 2009
Working with the court system’s request for pro bono legal services, McCarthy Fingar’s lawyers sometimes volunteer their skills and services to those in financial need. Robert H. Rosh successfully prosecuted, on a pro bono basis, an appeal to the Unemployment Insurance Appeal Board. The Department of Labor had issued a determination disqualifying the pro bono claimant from receiving unemloyment benefits on the grounds that the claimant had lost employment through misconduct. The determination of misconduct had been based upon the claimant’s arrest and detention by the United States Department of Homeland Security (“DHS”). Following his arrest, the DHS commenced a proceeding to deport the claimant from the United States based upon a federal statute which permits the removal of aliens convicted of a crime involving violence or moral turpitude. In that proceeding, however, the court held that the DHS had failed to establish that the claimant’s underlying claim constituted a crime of violence or moral turpitude. The court further determined that the claimant had been wrongfully arrested by the DHS, and consequently dismissed the deportation charges against the claimant. The claimant was thereafter released from custody, and contacted his employer, but was advised thereby that his employment had been terminated. At the hearing before the Unemployment Insurance Appeal Board, Rob established that the claimant’s absence from work was caused by and resulted from his wrongful arrest by the DHS, as opposed to misconduct. The Appeal Board consequently found that while it was the employer’s prerogative to discharge the claimant, the claimant should have been permitted to collect unemployment benefits. The Department of Labor’s determination denying benefits to the claimant was consequently reversed, and as a result of Rob’s efforts, the benefits that the claimant had been denied, were provided to him.
Business Litigation - Breach of Fiduciary Duty and Fraud - Fraudulent Conveyances
Breach of Fiduciary Duty and Fraud (U.S. Bankruptcy Court) (EDNY) (2008)
In the United States Bankruptcy Court, Eastern District, Robert H. Rosh successfully defended a client against claims seeking to to set aside a transfer as as a fraudulent transfer under 11 U.S.C. § 584, and as a preferential treatment under 11 U.S.C. § 547.
Business Litigation - Contract Dispute – Guarantor’s Liability under Note
Giordano v. Need Oil Corporation (Sup. Ct., Westchester Co., Index No. 21891/05)
Our Business Litigation lawyers know that collecting loans made by our clients is essential to success for our clients' businesses. Here, Robert H. Rosh successfully prosecuted this action to recover monies due by a guarantor under a promissory note and a guaranty. The guarantor tried, unsuccessfully, to escape liability by arguing that he only signed the note in his representative, as opposed to his individual, capacity. The court rejected the guarantor’s argument, holding that while the guarantor only signed the note in his representative capacity (as an officer of the maker of the note), he also signed a stipulation of settlement which, by its terms, imposed liability upon the guarantor in his individual capacity, and provided that it controlled and superseded the note in event of any conflicts.
Business Litigation – Goods Sold and Delivered
Giordano v. Berisha (Sup. Ct., Bronx Co., Index No. 23224/06)
Robert H. Rosh successfully prosecuted this action for monies due and owing for goods sold and delivered (residential heating oil). Following an evidentiary hearing, damages in excess of $325,000 were awarded to our client, including contractual interest of 18% per annum, as provided in the heating oil delivery stubs that were issued to the defendant-customer upon the heating oil deliveries.
Grace v. Grace, Index No. 21143-05 (Sup. Ct., Westchester Co., Decision and Order (Lefkowitz, J.) (2006)
Clients come to McCarthy Fingar for help when business and personal agreements are openly breached, Here, Robert H. Rosh successfully prosecuted to a judgment in excess of $900,000, in a case involving a dispute over a buy-sell agreement in a closely held corporation.
If a dispute as to a real estate transaction cannot be settled, lawyers need skill and experience to win a case in court. In this matter, Robert H. Rosh successfully defended our client at both the lower court and appellate levels, in an action brought by a tenant to enforce a purported option to purchase our client’s real property. Rob moved for, and obtained, an order dismissing the tenant’s complaint. In support of its dismissal, the court held that the draft option agreement between the parties did not identify the property to be conveyed with sufficient particularity to satisfy New York’s Statute of Frauds, General Obligations Law §5-703(2), and was therefore unenforceable.
Following our client’s victory, the tenant refused to vacate the premises and Rob successfully pursued on our client’s behalf a proceeding that resulted in the eviction of the tenant from the premises.
Our lawyers defend clients on unwarranted lawsuits for enforcement of alleged contracts. Here, Robert H. Rosh successfully defended an action that was brought against his client for specific performance of a contract to sell real property. Rob moved for and was awarded summary judgment dismissing the action. On appeal, the lower court’s decision was affirmed, finding that the parties never had a meeting of the minds, and that the documents which had been relied upon by the plaintiff in support of his claim had omitted essential terms of a contract; and, thus, the claim was barred under the statute of frauds. The appellate court also found that the actions taken by the plaintiff were not unequivocally referable to a contract of sale so as to constitute part performance sufficient to defeat the statute of frauds, and were merely steps taken in contemplation of a future agreement.
Business Litigation - Jurisdictional Dispute – Court Dismisses Action for Lack of Personal Jurisdiction over Defendant
Linsker v. Mohr (Sup. Ct., Westchester Co., Index No. 12788/02)
Robert H. Rosh successfully defended a tort claim (fraudulent misrepresentation) arising out of a business venture agreement between the parties (involving the printing and distribution of promotional material concerning a golf event that was to be staged in Hawaii). Here, Rob moved for, and obtained, an order dismissing the plaintiff’s complaint for lack of jurisdiction over the defendants (both of whom were Hawaiian residents). In support of its dismissal of the case, the court held that since the purported tort occurred out-of-state (Hawaii), and the only resulting injury in New York was an indirect financial loss sustained by the plaintiff, and there was no jurisdiction over either of the defendants in New York State.
In this case, Robert H. Rosh and Robert M. Redis successfully represented two (2) individuals at both the lower court and appellate levels in a fee dispute with their former counsel involving a condemnation proceeding. The dispute arose after the individuals discharged their former counsel and negotiated a sale of their properties on their own. The court held that the individuals had the right to settle their case on their own, and that their former counsel were only entitled to recover in quantum meruit for the legal services rendered to the individuals in connection with the condemnation proceeding.
Business Litigation - Disputes with Vendors
Caligor Medical & Office Supplies v. Mandell (Dist. Ct., Nassau) (Index No. 13011-98)
Clients often ask our Business Litigation group to represent them on disputes with their vendors. In Caligor Medical & Office Supplies v. Mandell, Robert H. Rosh successfully defended a dispute over monies purportedly due to the plaintiff under a medical equipment lease. At trial, Rob offered evidence establishing that the leased medical equipment was defective. The plaintiff-lessor thereafter settled the dispute on terms favorable to our client.
Our lawyers represent clients in disputes over different types of real estate matters. Here, Robert H. Rosh and Robert M. Redis intervened on behalf of St. John’s Riverside Hospital and successfully defended it in the lower court in an Article 78 proceeding, and on an appeal to the Appellate Division, Second Department. In this case, a coalition sought to overturn certain administrative determinations as to the siting and design of St. John’s proposed nursing home facility in Yonkers, New York.
Business Litigation - Foreclosure - Bankruptcy & Eviction
Midwest First v. Mosello (Sup. Ct., Westchester Co., Index No. 13615/98)
Our lawyers often protect client's interests in loan obligations. Here, Robert H. Rosh successfully prosecuted this action against defaulting obligors (a husband and wife) for failure to make payments under a note and mortgage. On the eve of the foreclosure sale, the defendant-husband filed for bankruptcy, and obtained a brief stay of protection until Rob moved, and obtained relief from, the bankruptcy court permitting the foreclosure to proceed. On the eve of the next scheduled sale date, the defendant-wife filed for bankruptcy. Rob moved for and obtained an order preventing the defendant-spouses from further filing for bankruptcy, and with the assistance of the sheriff, the defendant-spouses were evicted from the mortgaged premises.
Business Litigation - Deficiency Judgment - Court Admonishes Defendants for Offering Self-Serving Evidence at Hearing
Midwest First v Mosello (Sup. Ct., Westchester Co., Index No. 13615/98)
Following a foreclosure sale, Robert H. Rosh successfully moved for and obtained a deficiency judgment against the defendant-mortgagors after an evidentiary hearing. At the hearing, the defendant-mortgagors attempted to offer evidence showing that the value of the mortgaged property was greater than the debt, and that there was therefore no basis for a deficiency judgment. The court rejected the defendants’ evidentiary offer as to the value of the property, finding it self-serving and inconsistent with evidence offered by the defendants in a prior proceeding for purposes of reducing the real estate taxes on the mortgaged property.
Business Litigation - Mortgage Loan Dispute - Court Rejects Defendant’s Lack of Consideration Defense
Chemical Bank v. East Main Inc. (Sup. Ct., Westchester Co., Index No. 20547/95)
Robert H. Rosh successfully prosecuted this contested mortgage foreclosure action. The defendant-mortgagor and guarantors unsuccessfully argued that the note and mortgage were void for lack of consideration, since the proceeds of the loan were not used by the mortgagor, but by its principals to purchase certain assets. The court rejected the defendants’ lack of consideration defense, citing authority holding that a mortgage is not void for lack of consideration where the mortgage proceeds are received by a party other than the mortgagor.