Our Municipal Law & Land Use lawyers know that attention to procedural details is critical for the exercise of municipal rights. Here, the Appellant challenged the Village of Scarsdale’s in rem tax foreclosure proceedings on the basis of, among other things, inadequate notice. Representing the village, Daniel Pozin and Lester D. Steinman, as special counsel to the village, persuaded the Appellate Division, Second Department, that the Appellant’s arguments were wrong, and the Second Department dismissing the appeal and the case.
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.
Joseph J. Brophy, after a bench trial, successfully won a directed verdict in favor of the firm’s client, who owned and operated an auction gallery in Connecticut. The plaintiff sought recovery from the auction gallery on the grounds that it was liable for loss of her consigned goods on three different theories of recovery. In granting the directed verdict dismissing all three of plaintiff’s theories, the Supreme Court found the plaintiff presented no factual support of her claims at trial and a judgment dismissing her claims was warranted. Dina M. Aversano, together with Joseph J. Brophy, wrote the appellate brief that successfully opposed the plaintiff’s appeal from the direct verdict judgment to the Appellate Division, Second Department. The Second Department unanimously affirmed the direct verdict, and awarded costs associated with the appeal in favor of the auction gallery. Following denial at the Appellate level, the plaintiff sought leave of the Court of Appeals for a further appeal. Dina successfully opposed this motion, and leave was denied.
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.
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.
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.
Contest over Finder’s Fee for Sale of Commercial Real Estate
Our lawyers sometimes represent clients in disputes over finder's and brokerage fees on real estate and business transactions. Here, Dina M. Aversano, together with Judge Sondra M. Miller and Dolores Gebhardt, wrote and prepared the appellate brief in the Appellate Division, Second Department, to seek to overturn the Supreme Court, Nassau County’s award, following a bench trial, of a $500,000 finder’s fee on a commercial real estate transaction. We argued that no such fee was warranted because of the lack of any causal relationship in the “finder’s” role in facilitating the eventual transaction. The Appellate Division Second Department awarded a downward modification of the fee.
Legal fees in matrimonial cases are often an important economic issue for both sides. Pickens is a complex case in which, among other things, defendant husband appealed Order Appointing Receiver of marital residence on the ground that the Order empowered the receiver to encumber the property. Defendant husband also appealed the trial court’s award of counsel fees and costs to Dolores Gebhardt's client as a sanction for the defendant making a frivolous motion. Dolores, representing the wife, successfully persuaded the Appellate Division, Second Department, to uphold the lower court determination on appeal.
As part of their work, Tax Certiorari and Condemnation lawyers must understand environmental issues and their impact on a property's valuation. Representing Westchester Joint Water Works (WJWW), Stephen Davis successfully upheld WJWW's condemnation against attack from an alleged failure of WJWW to undertake adequate environmental considerations. Exercising its original jurisdiction, the Appellate Division sustained the argument that WJWW properly relied upon three prior negative declarations for the affected subdivision in discharging WJWW’s obligation to take and consider the required long, hard look at the project’s effect upon the environment.
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.
Our lawyers sometimes represent corporate and individual fiduciaries in contested accounting proceedings. In one such case, Robert M. Redis and the firm sought, through a summary judgment motion in the Surrogate’s Court, to dismiss objections asserted to an accounting of our client, a co-trustee, by the remaindermen of the trust. The remaindermen filed objections to the accounting, alleging violation of the diversification requirement of the Prudent Investor Act, even though they were aware of the challenged transactions and even though they later became co-trustees and continued to hold the same challenged investments. The Surrogate dismissed the objections as to the original co-trustee, who had previously resigned as co-trustee, but basically denied our motion to dismiss the objections to the accounting of our client. In Matter of Bloomingdale, 48 A.D.3d 559, 853 N.Y.S.2d 92 (2d Dep’t 2008), the Appellate Division partially reversed the Surrogate, holding that because co-fiduciaries are one entity, the remaindermen could not maintain objections for the period in which they served as co-trustees.
McCarthy Fingar's lawyers are leaders in the legal community, and our Matrimonial & Family Law lawyers have been strong proponents of no-fault divorce. In fact, Judge Sondra M. Miller was an influential voice in the passage, in 2010, of the new no-fault divorce law. In Molloy, Dolores Gebhardt’s client was denied a divorce on the ground of abandonment. The decision became the basis for Dolores Gebhardt’s article on the law of abandonment entitled, "Justice Abandoned: Forty Years of Stalemate in Actions for Divorce on the Ground of Abandonment" 27 Pace Law Review 605 (2007).
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.
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.
Developers sometimes come to McCarthy Fingar and our Business Litigation group to deal with disputes with municipalities on the terms and conditions of a development deal. Here, Robert M. Redis and the firm successfully sued the Planning Board of the Village of North Hills and its building department over the failure of the municipality to release staged infra structure subdivision and bonds, as called for in the enabling municipal approvals. The development was a high end project in a wealthy Long Island community. The municipality had refused to release the bonds until other matters unrelated to the bonds were resolved. Those other issues involved substantial amounts of money and would have harmed the client if the bonds were not released. After the municipality wrongfully refused to release the bonds. Bob commenced a CPLR Article 78 Proceeding to have the bonds released and persuaded the trial court to make an order mandating the release of the bonds. The municipality immediately appealed the order, holding up the release of the bonds, but the Appellate Divsion, Second Department unanimously upheld the lower court decision, and the bonds were released.
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.
Amari v. Molloy, NYLJ 8/8/00, p. 23, col. 5 (Kings County Sup. Ct. 2000), aff'd, 293 A.D.2d 431 (2d Dep't 2002)
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.
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.
Sometimes, lawyers fail to identify and pursue a claim that should have been brought for a client; and sometimes the trial court makes the wrong decision when a legal malpractice claim is filed. Here, Joseph J. Brophy obtained a reversal from the Appellate Division, Second Department, on a legal malpractice action brought against an attorney for a failure to prosecute a claim for a client. The malpractice claim had been wrongly dismissed by the trial court.
Our lawyers often represent beneficiaries in contested accountings of executors and trustees. In one such case, Frank W. Streng and Robert M. Redis succeeded at the trial court level and obtained a surcharge against a former executor in excess of $1.6 million and an award of attorneys fees against that former fiduciary in the amount of $250,000. Bob and Frank then succeeded in upholding the Surrogate's Court's determinations on all appeals.
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.
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.
Our lawyers represent companies in disputes on sophisticated business transactions, sometimes involving real estate. Here, Robert M. Redis, on appeal, convinced the the Appellate Division, First Department, to reverse a lower court's denial of a motion for summary judgment. The outcome was that Bob's client obtained stock warrants as part of the rent on a large commercial property located in Connecticut
This matter involved a commercial net leasing arrangement between our client -lessor (Middlebury) and defendant-lessee (General Datacomm) (GDC). The lease was subsequently amended to provide GDC a rent reduction in return for its issuance of warrants to purchase its common stock, pursuant to a separate warrant agreement. Specifically, the original lease, executed in 1984, provided for two forms of rent. The first was a scheduled rent, which initially consisted of a fixed amount but which, during the course of the 12-year lease, became an indexation of a fixed amount. The second was “additional rent”, which essentially passed on to GDC all costs, expenses or obligations of maintaining the property, such as real estate taxes, utilities, insurance, repairs, etc. The additional rent provisions remained unchanged under any of the three amendments to the lease.
The lease was first amended in 1992, to lower the scheduled rent by eliminating the indexation and lowering the fixed amount, in consideration for the warrant agreement, which provided for the issuance of warrants by GDC to Middlebury allowing the latter to purchase shares of the former's common stock. The number of warrants issued would be determined by a formula applied to the “net rental savings”, the difference between the fixed rent under the original lease and that under the amended lease.
Pursuant to this formulation of the warrant agreement, GDC duly issued warrants to Middlebury in October 1993. Although earlier that year Middlebury had made a claim against GDC for indemnification regarding environmental damages alleged by third parties, which subsequently evolved into a Federal action, the lessee GDC did not factor this claim or any other “additional rent” item into the calculation of the number of warrants issued. This was true despite the executions of the first amendment to the warrant agreement just after the environmental claim was made, and the second amendment to the warrant agreement at the time the warrants were issued. Also within this period, the second and third lease amendments were made, further reducing the scheduled rent.
The second amendment to the warrant agreement provided that the “net rental savings” be determined by the difference between what would have been the scheduled annual rent under the original lease and the scheduled annual rent paid as set forth in the second amended lease. GDC, however, declined to issue warrants for 1994 and 1995, claiming that due to the pending environmental indemnification claim, it was unable to calculate the number of warrants to be issued.
Bob on behalf of Middlebury commenced an action seeking specific performance of the obligation to undertaken by GDC to issue the stock warrants. The motion for summary judgment was denied. Bob on behalf of Middlebury took an appeal. After oral argument on the appeal, the Appellate Division, First Departmentreversed the denial of summary judgment and ordered GDC to issue the stock warrants to our client.
McCarthy Fingar often represents clients in Will & Trust Contests. Frank W. Streng, as counsel to the named executor, successfully defended against objections to the filing of a Codicil to the Decedent’s Will. At trial, a jury upheld the Codicil to the Decedent’s Will and threw out objections made to such Codicil by one family member. On appeal, we persuaded the Appellate Division, Second Depatment, to uphold the trial judge’s refusal to set aside the jury verdict.
One of the most satisfying things our Matrimonial & Family Law lawyers do is to get a favorable outcome for a client on a child custody issue. Kathleen Donelli won the landmark New York State Court of Appeals decision on child relocation in Tropea v. Tropea, and has frequently lectured on child relocation issues. In a child relocation case, Kathleen successfully persuaded the Appellate Division, Second Deparment, to permit her client, the custodial parent, to relocate.
Custody of minor children is sometimes an issue that continues after the parents obtain their divorce and have reached agreement on visitation issues. Sometimes, the custodial parent seeks to change his or her location, and the noncustodial parent cries foul and seeks to prevent or oppose that relocation. In Tropea, Kathleen Donelli prevailed in a child relocation case in New York's highest court, the New York State Court of Appeals. Tropea established the prevailing law in New York on relocation.
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.
In Kelly, Joel M. Aurnou succeeded in getting a unanimous appellate opinion dismissing a punitive damage claim against his corporate client.
McCarthy Fingar's Business Litigation and Real Estate Transactions groups have also represented clients on real estate title disputes. Here, Robert M. Redis successfully obtained summary judgment at the trial court after extensive discovery. The issues involved restrictions on land use, historic preservation, zoning matters and doctrines of merger of ownership. The plaintiff commenced this action for declaration that the prior owner’s 1980 "subdivision" of Lot No. 4 violated the restrictive covenant prohibiting a lot subdivision without the approval of the owners of the other three lots. If the plaintiff's position was correct, Bob's clients could lose their homes. Their property was adjacent to a property listed on the New York State Historic Registry because of it involvement in the American Revolution. The trial court determined that, insofar as the prior owners of the property, the Benjamin family, either individually, or through their controlled corporation, Andros Realty Co., owned all of the parcels as of 1922, the restrictive covenant at issue was extinguished by the doctrine of merger. This determination was contested on appeal. The Appellate Division, Second Department, disagreed with the lower court and found that the merger had not occurred; but Bob won the appeal when they agreed with his alternative argument that the plaintiff's action was barred by laches. The laches argument was that the plaintiff sat back and did nothing, knowing that the homeowners were engaged in substantial construction on the lot. The plaintiff delayed seeking to enforce the restrictive covenant until after the homeowners had completed the bulk of the construction and incurred a great deal of expense with the knowledge of the plaintiff.
After prevailing in the Federal District Court, Kathleen Donelli successfully convinced the US Court of Appeals, for the Second Circuit, to affirm the District Court's denial of landlord's claim for $7 million in unpaid rent.
Having prevailed in the lower court, Kathleen Donelli persuaded the Appellate Division, Second Department to affirmed the trial court's decision, declaring the validity of an easement.
Our lawyers often represent clients in dealing with beneficiary designations on pension and qualified plans. In one such case, Howell Bramson, Robert M. Redis and other lawyers at the firm successfully represented a surviving spouse’s estate and persuaded the lower court to invalidate a beneficiary designation on a qualified plan for the Decedent’s child (to the exclusion of the decedent’s spouse) on the grounds that the beneficiary designation violated the spousal consent rules under ERISA. The trial court's determination was upheld, on appeal, by the Second Circuit Court of Appeals. The appeal also deal with significant legal questions, such as the applicability of ERISA to controlled foreign corporations and whether these sufficiently implicated the Interstate Commerce Clause of the United States Constitution.
Our lawyers often represent beneficiaries that suffer financial injury through improper actions of executors and trustees. Here, Frank W. Streng represented a beneficiary at a trial to obtain the removal of a preliminary executor who had acted improperly in the administration of the estate. The removed fiduciary appealed, and Frank and other McCarthy Fingar lawyers, Robert M. Redis and Deborah Yurchuck McCarthy, successfully persuaded the appellate court to affirm the trial court's decision to remove the fiduciary.
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).
McCarthy Fingar's Business Litigation and Real Estate Transactions groups have large experience in real estate development issues, whether representing developers or local towns or municipalities. Here, Robert M. Redis represented the Town of Lewisboro in Northern Westchester, in upholding its local law requiring a developer of a clustered residential development to pay recreational fees in lieu of dedicating land in the development for park purposes. Previously the developer could designate certain property in the cluster development to be set aside for purposes of parks and recreation facilities, irrespective of whether the amount of nearby park and recreation facilities adequately served the specific development and the development's impact on town-wide recreational facilities.
Bob successfully upheld the law in the lower court against myriad challenges, including one arguing that the local law constituted an unconstitutional taking under the Fifth Amendment. Bob then successful defended the trial court's opinion before the Appellate Division, Second Department, and, then, before the New York Court of Appeals, in a matter of first impression.
Years later Bob was retained by his opponent, the developer, Bayswater, to handle litigation and appeals against a different municipality located on Long Island.
Often, there are issues on the interpretation of a Decedent's Will that can have large effect on the Decedent's testamentary plan. In this case, Frank W. Streng, and other lawyers at the firm represented children of a Decedent’s first marriage in litigation against the Decedent’s surviving spouse where the surviving spouse sought (unsuccessfully) to obtain an interpretation of her husband’s Will which would have effectively excluded the Decedent’s children as beneficiaries under the Will. The other side appealed, and the appelate court affirmed the lower court ruling.
In this case, Kathleen Donelli persuaded the Appellate Division, Second Department to reverse the trial court's denial of summary judgment to seller, finding that the memorandum between the seller and purchaser was not an enforceable contract.
Tax Certiorari and Condemnation cases almost always involve the use of experts to establish value. Here, Stephen Davis successfully used an expert to establish rental value for apartments in a cooperative apartment buildling conversion as part of the capitalization of income process. At the taxpayer’s behest, the court applied a remedial statute designed to avoid use of sales prices for each unit, the effect of which would make the sum of the parts worth more than the whole, i.e., worth more than a neighboring similar apartment building. Instead, the rental value, rather than the so-called conversion value, was considered to be the best measure of value. Then, Steve convinced the Appellate Division to affirm the lower court ruling.
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.
Sometimes, the tax apportionment clause - an often overlooked clause in a will - has a huge impact on the actual distributions under a will. In this case, Frank W. Streng and others at the firm successfully represented a major health care institution in a contested accouting proceeding in which we challenged the executors’ interpretation of the decedent’s tax apportionment clause in her Will. The charitable beneficiary would have been deprived of hundreds of thousands of dollars of its proper share of a multi-million dollar estate had the executors' interpretation been adopted. The lower court opinion was affirmed by the appellate court.
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.
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.
The valuation technique used by Tax Certiorari & Condemnation lawyers is the key to success or failure of their cases. Here, Stephen Davis successfully obtained a tax assessment reduction for property owned by the user department store permitted by capitalizing rental value. He did so through the use of expert testimony on rental values, rather than employing a cumbersome reconstruction cost methodology that would have likely resulted in a higher valuation for the client's property. Steve then won on the appeal.
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.
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.
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.
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).
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.
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.
Representing a creditor, Stephen Davis successfully persuaded the Court of Appeals to reverse a decision of the Appellate Division, Second Department. Upon reversal, the lower court was compelled to recognize the right of general creditors to intervene in opposition to a referee’s report of sale, in order to restore what should have been surplus moneys from which the creditors’ claims could then be paid.