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Representative Cases and Matters for Business Litigation

Business Litigation - Intellectual Property - Patent Infringement

Yellow Cab, etc. v. Schwartz, et al, United States District Court, Southern District of New York, 1:13-cv-07575 (JSR/GWG).

in addition to a monetary settlement payable to our clients, after intense litigation and expedited discovery before Judge Jed S. Rakoff, Phil Landrigan and Peter Aufrichtig were able to obtain permanent injunctions against defendants’ infringement of the clients’ patent. The patent, previously prosecuted to issuance in the PTO by Peter, was for an in-vehicle vending machine. One party that was  introduced to the product by the client was also permanently enjoined from any activities related to in vehicle vending machines.

Business Litigation – Corporate & General Business  - Favorable Arbitration Award

Miller v. RMR Wealth Builders, American Arbitration Association, AAA Case#: 13-20-1300-2355, 10/21/14

The lawyers in our Business Litigation group sometimes represent shareholders in disputes that are determined in arbitration. Here, Phil Landrigan represented the remaining shareholders and the company in an arbitration brought by a former shareholder’s estate, seeking valuation on the buyout of the decedent’s shares. The estate sought to impose a value to the shares based on a supposed fair market value of the company, rather than the certificate of value on file with the company. Phil convinced the arbitrators to bifurcate proceedings to address as a threshold issue the enforceability of the shareholders agreement and the certificate of value on file with the company before considering potentially complex issues of market and/or other valuation methods with the attendant cumbersome and business threatening disclosure of confidential information. Phil won the first phase of the proceedings and avoided the expense and uncertainty of any valuation other than the one the shareholders had earlier agreed. Phil overcame equitable arguments as to the fairness of adhering to a initial low value ascribed by the shareholders shortly after forming the company and not updated for decades before the shareholder’s death. Phil argued that the company reimbursed shareholders for life insurance premiums on policies with face amounts in excess of the certificated value of their shares for the undocumented purpose of funding the shareholder buyout. Although the decedent allowed his policy to lapse because he didn’t want to pay even his proportionate share of the growing premiums and the argument that the benefits would offset the amount to be paid in any buyout was not successful in itself, it did undercut the estate’s supposed equitable/fairness argument as to the amount the company should pay for the shares.

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. Landrigan, Dina 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.

Business Litigation - Real Estate Transactions - Enforcement of Lease - Award of Attorney Fees

Armur Realty LLC et al. v. Banco do Brasil (U.S.D.C., N.J. 2011)

Sometimes, disputes on leasing and real estate transactions cannot be resolved out of court. Representing Banco do Brasil, Peter D. Aufrichtig obtained summary judgment dismissing the entire action to enforce a lease terminated by Banco do Brasil ab initio, in the United States District Court for the District of New Jersey. Peter also persuaded the court to direct the losing side to pay the firm's attorney fees in Peter's successful motion to dismiss the other side's case.

Business Litigation - Real Estate Transactions - Lease Dispute - Avoidance of Liability under Guaranty

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.

Business Litigation - CERCLA Action Seeking $44 million for Clean Up Costs to be Dismissed

Next Millenium Realty LLC, et al. v. Adchem Corp. et al., 2:03-cv-05985 (E.D.N.Y. 2010) (SJF)(MLO).

Federal Magistrate Judge Orehnstein has recommended that a $44 million CERCLA cost recovery action against one of the firm’s clients should be dismissed on statute of limitations grounds. Phillip C. Landrigan and counsel for the other co-defendants argued that construction of a Charcoal Treatment System and an Air Stripping Tower designed to strip volatile organic compounds from a nearby drinking supply well were part of the long term “remediation” plan for the site rather than emergency or short term “removal” efforts. The Magistrate Judge agreed, and found the distinction critical to the Court’s conclusion that the State’s claim accrued when construction of these systems began and that the statute of limitations had expired before the state brought suit.

In addition to approximately $4 million in past clean up costs, the recommendation would also bar the State’s CERCLA claims for an estimated $40 million in future costs. The case was subsequently settled for roughly 1/10th the State’s prior demand.

Business Litigation - Real Estate Transactions - Unlicensed Home Improvement Contractor

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 - Settlement of Small Claims

Settlement of Small Claims Case Alleging Damage to Real Property

Katherine Sohr Jedlicka successfully settled a case in which the firm was retained to represent two specific devisees of real property, one of whom was appointed as successor fiduciary of the estate of a Decedent.  The Estate’s fiduciary and the specific devisees were all named as defendants in a case where the plaintiff alleged damages to his real property were caused by real property owned by a Decedent at her death and specifically devised to three beneficiaries under the Will.  After the Surrogate’s Court rescinded a deed transfer from the Decedent’s estate to the specific devisees and permitted the sale of real property in order to pay estate expenses, the successor fiduciary settled the claim on behalf of the Estate.

Appellate Practice - Business Litigation - Dismissal of Claims against Auction Gallery

Tarleton v. Astor Galleries, Ltd., 70 A.D.3d 811 (2d Dep’t 2010), lv. to app. denied, 15 N.Y.3d 715

Joseph J. Bbrophy, 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.

Business Litigation - Real Estate Transactions - Appointment of Receiver

DeAzevedo v. Angel, NYLJ, 7/7/10, at 26, col. 1 (Sup. Ct., NY Co.)

Some disputes simply cannot be resolved out of court. Paul S. Aufrichtig and Dina M. Aversano successfully were awarded injunctive relief for their client, the buyer of a cooperative apartment in New York City, by way of their motion brought by Order to Show Cause before the Supreme Court, New York County. The Court granted the buyer’s requested relief in the form of a court appointed receiver to facilitate the closing of a cooperative apartment that was consistently thwarted by the seller’s actions. In a decision published in the New York Law Journal, Judge Emily Jane Goodman appointed a receiver and empowered the receiver to take any actions that would effectuate transfer of the cooperative apartment.

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 - Real Estate Transactions – Corporate Dissolution - Sale of Commercial Building

Commercial Building Sold in the Settlement of a Dissolution Action

Small, closely-held companies sometime have disputes between shareholders that cannot be resolved out of court. Our lawyers are often retained to represent either the company or one of the shareholders. Here, Douglas Trokie represented a shareholder of a corporation in a dissolution action where the company’s sole asset was a commercial building. Through Doug's efforts, the matter was settled, and the parties agreed to an amicable sale of the building; and the net proceeds of sale of the building were divided between the two shareholders.  

Surrogate's Court Litigation - Trusts & Estates - Contested Accountings - Business Assets

Matter of Zacharakis (Surr. Ct., Rockland County 3-12-2009)

Business and real estate assets are often a source of controversy in estates and trusts. Here, control of shopping centers in Rockland County was in controversy. The fiduciary of the estate had maintained legal control and management of the corporations that owned the shopping centers by voting the estate's shares in the corporations to continue that control. Representing a beneficiary desiring to end the fiduciary's control over such shopping centers, Frank W. Streng and Gail M. Boggio successfully moved in Surrogate's Court, Rockland County, to compel the distributions of shares of stock in the corporations in order to permit the majority of the beneficiaries (which included the firm's client) to control the management of the shopping centers.

Business Litigation - CERCLA Environmental Cost Recovery Action Seeking $2.6 million Settled for $150,000

NYS v. Ametek, USDC, SDNY, Docket No. 7:05-cv-02186 (SCR)(LS)

Our lawyers have large experience in dealing with CERCLA litigation. Here, NY State’s $2.6 million claim for municipal landfill closure costs settled for merely $151,250 after Phillip C. Landrigan points both to client’s small volume of waste and municipality’s own culpable conduct at the site.

Phil convinced the NY State Attorney General’s Office that the municipality’s culpability in dumping incinerator ash, including wastes from area manufacturing and carting companies, made its claim to shift responsibility to the firm’s client ring hollow. In response to the apparent lack of appreciation of the municipality’s history of activity, both at its own incineration plant and as an operator of the landfill, the AG’s Office was forced to concede that the municipality would likely have to contribute well in excess of EPA’s “standard” guidelines for municipal landfill operators. Based on these arguments, all PRPs’ contributions were reduced from $2.6 million to $420,000, and based on the firm’s gathering of demonstrative proof, both of the volume of material dumped by the client and the volume of material on the site based on the DEC’s own studies, the client’s share was further reduced to only $151,250.

Appellate Practice - Business Litigation - Reduction on Finder's Fee for Commercial Real Estate Sale

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.

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.

Business Litigation - Breach of Warranty Agreement - Settled the Day Before Jury Selection

Breach of Warranty Agreement - Settled the Day Before Jury Selection

Robert M. Redis and Phillip C. Landrigan were trial counsel in a Seattle based retailer’s multi-million dollar dispute with a national cellular phone warranty provider. The Seattle retailer sold cellular phones and services together with warranties supplementing the manufacturer’s warranty to include breakage and other failure of the phones’ operation. After a history of customer complaints and general dissatisfaction with the warranty provider, including often long delayed return of physical phones to customers that continued to be non-operational, the client assumed responsibility for satisfying customer claims and sought damages against the warranty provider for its costs in doing so. Efforts by the warranty company to secrete assets were prevented by obtaining a pre-judgment restraint on its assets. Ultimately, a settlement for virtually all costs claimed by the client was obtained the day before jury selection.

Phil and Bob thwarted efforts by the warranty company’s counsel to prevent introduction of damages evidence in summary form. Having streamlined the trial by preventing the need to introduce the actual defective phones and their corresponding warranty claim forms and coverage determinations, the likelihood of both a favorable and timely decision was greatly enhanced.

Ultimately, the settlement was paid out of a contingency fund established under a post litigation asset purchase agreement. Phil’s detailed, well documented and legally compelling opinion as to the reasonableness of the settlement convinced the acquiring company to release the settlement funds without further litigation.

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.

Business Litigation - Corporate & General Business - Summary Judgment on Breach of Contract

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.

Appellate Practice  - Business Litigation - Real Estate Transactions - Option to Purchase Real Estate

Keiser v. Todd, 290 A.D.2d 492, 736 N.Y.S.2d 255 (2d Dep't 2005)

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.

Business Litigation - Appellate Practice - Real Estate Transactions - Release of Development Bonds

Bayswater Gracewood LLC v. Planning Board of Village of North Hills, 19 A.D.3d 411 (2d Dep't 2005)

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.

Surrogate's Court Litigation - Will & Trust Contests - Revocable Trusts

Matter of Hoffman, 6 Misc. 3d 1011A, 800 N.Y.S.2d 342 (Surr. Ct., Westchester 2004)

"Will Contests" take different forms, and the lawyers in our Surrogate's Court Litigation group have experience in virtually every area. Trustees of a purported revocable inter vivos trust may claim title to property that would otherwise be disposed of under a Will or by intestacy (without a Will). In a relatively novel case, in Hoffman, the firm represented a client who was a beneficiary under her husband's Will of a membership in the New York Stock Exchange. However, even before the execution of his Will, the decedent allegedly created a revocable trust agreement for the benefit of a child of a prior marriage and allegedly transferred his NYSE seat to the trust. The NYSE seat had not been transferred to the trust through any assignment process but had been listed on a schedule of assets of the trust, with the following notation: "1. Membership in the New York Stock Exchange. The NY Stock Exchange does not permit registration of memberships in the name of trustees. Grantor and Trustees recognize this to be the case." Citing the provisions of a relatively new statute, EPTL 7-1.18, McCarthy Fingar lawyers, Frank W. Streng, Deborah Yurchuk McCarthy and Robert M. Redis, sought summary judgment against the trustees strictly on the question of the effectiveness of the transfer, arguing, among other things, that the recital of the NYSE seat as an asset of the trust in a schedule was not enough to consummate the transfer. The Court agreed and dismissed this portion of the trustees' case.

Business Litigation - Municipal Regulation - Sprinkler System Retrofit Ordinance Invalid

Peo. (Vil. Of Mamaroneck) v. Argueso, Justice Court of the Town of Harrison, Johnston, J. aff’d Appellate Term. 9th & 10th Judicial Districts (1993) and Zaccagninio v. Village of Rye Brook, Supreme Court, Westchester County, Lefkowitz, J. (2004)

Stephen Davis successfully invalidated in both cases a retrofit sprinkler system ordinance on the basis that the legislation creating the State Uniform Building Code, which except under certain very limited circumstances, precludes both the Code and local governments from requiring retrofitting to pre-1984 structures. And, in regard to local governments, precludes enactment of any local law at variance with the State Code.

Business Litigation - Appellate Practice - Statute of  Frauds on Real Estate Transaction

Frankel v. Ford Leasing Dev. Co., 7 A.D.3d 757, 776 N.Y.S.2d 905 (2d Dep't 2004)

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.

Business Litigation - Appellate Practice - Attorney Fee Dispute

Papadopolous v. Goldstein, Goldstein & Rikon, P.C., 283 A.D.2d 649, 725 N.Y.S.2d 364 (2d Dep’t 2001), appeal denied, 97 N.Y.2d 677

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 - Settlement during Jury Selection - Claim by Commercial Broker for Commissions

Decnos v. Argueso, 01 Civ. 2617 (LMS) (USDC, SDNY)

Our lawyers are sometimes retained on disputes for claims for brokerage commissions. Here, Robert M. Redis and his co-counsel was able to successfully settle a multimillion dollar claim of breach of contract, fraud and misrepresentation made by a commercial business broker. The claim, filed in Federal court, arose out of a multimillion dollar stock purchase agreement of a international manufacturer of industrial resins, waxes and ceramics. After pretrial discovery the matter was set for trial; and, during the jury selection process, Bob was able to negotiate a settlement on favorable terms.

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.

Business Litigation - Summary Judgment Motion - Sale of Business Assets

Daniel Drug Med World v. D and A Drug (Sup. Ct., Rockland 1999) (7040/1997)

Controversies, and, then, litigation, sometimes takes place after the sale of company assets. Here, Robert M. Redis successfully obtained summary judgment in favor of his client, the defendant, the seller of a wholesale pharmacy, against allegations of breach of contract, fraud and misrepresentation involving a multimillion dollar asset purchase agreement.

Business Litigation - Appellate Practice - Article 78 Proceeding - Nursing Home

Hudson Communities Coalition, Inc. v. New York State Office Parks, Recreation & Historic Preservation, 251 A.D.2d 504, 673 N.Y.S.2d 595 (2d Dep’t 1998)

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 - Appellate Practice - Real Estate Transactions - Obtained Stock Warrants in Lieu of Rent

Middlebury Off. Park Ltd. Partnership v General Datacomm Indus., 248 A.D.2d 313, 670 N.Y.S.2d 482 (1st Dep't 1998)

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.

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 - Commercial Finance - Lender Liability Claims

St. Andrews Condominium Corp. v. Chemical Bank (Sup. Ct., Westchester County)

Our Business Litigation and Commercial Finance lawyers have experience in all types of commercial lending issues, including lender liability claims. Here, Robert M. Redis successfully resolved lender liability and related claims including alleged violation of the condominium offering plan, construction and design defects against our client, a major national bank, which  acted as a $70 million construction lender. The project was a large cluster zoned residential condominium and a redesign of the adjacent St.  Andrews Golf Club course. The project was developed by various Jack Nicklaus entities. Mr. Nicklaus also redesigned the St.  Andrews Golf Club course, which was adjacent to the condominium and which the owners of the condominium units were able to join. As part of his work, Bob  was able to negotiate a settlement among the home owners, the St. Andrews Golf Club and curling rink, the Nicklaus group  and the Town of Greenburgh,  so that  all claims were dropped against our client, the lender. We were also able to establish necessary rights of way and easements for the units, saving our client, the lender, significant exposure and defense costs in what would have been  protracted litigation.

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.

Business Litigation - Appellate Practice - Real Estate Transactions - Land Use & Zoning - Historic Preservation Actions

Perry Gething Foundation v. Stinson, 218 A.D.2d 791 (2d Dep't 1995)

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.

Business Litigation - Appellate Practice - Landlord/Tenant Issues

1185 Avenue of the Americas Associates v. The Resolution Trust Corp.

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.

Business Litigation - Appellate Practice - Real Estate Easements

Route 22 Associates v. Cipes, 204 A.D.2d 705 (2d Dep't 1994)

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.

Business Litigation - Appellate Practice - Real Estate Transactions - Environmental & Land Use & Zoning Litigation

Victor Weingarten, Bayswater Development Corp. v. Town of Lewisburo, 76 N.Y.2d 460 (1990)

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.

Business Litigation - Appellate Practice - Real Estate Contract

Jaffer v. Miles, 134 A.D.2d 572 (2d Dep't 1987)

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.

Appellate Practice - Business Litigation - First Amendment - Dismissal of Libel & Defamation Case

Barbarita v. Gannett Company Inc., 92 A.D.2d 599 (2d Dep't 1983)

Robert M. Redis, who has substantially experience on First Amendment issues, successfully obtained summary judgment against a former supervisor of the County of Putnam, who sued Bob's newspaper client for libel and defamation. In the lower court, Bob successfully argued that the former supervisor was a public figure and that the standard of "constitutional malice, set forth by the United States Supreme Court in the New York Timescase, i.e., a knowing lie or reckless disregard as to whether the statement was true, should apply. On appeal, Bob persuaded the Appellate Division, Second Department, to uphold the lower court decision.

Appellate Practice - Business Litigation - First Amendment - Dismissal of Right of Privacy Case

Kiss v. County of Putnam and Westchester Rockland Newspapers, Inc., 59 A.D.2d 773 (2d Dep't 1977)

Robert M. Redis, who has substantial experience in First Amendment and privacy issues, obtained dismissal of an action against a newspaper publisher that sought damages for an alleged invasion of privacy. Here, Bob defended a newspaper in an invasion of privacy action brought under New York’s Privacy Law (Civil Rights Law Section 50-51). The plaintiff claimed that, irrespective of the truth of the article, the newspaper should not have published the article. However, New York‘s right of privacy law only protects commercial usage of a person’s name and usage. And, since the newspaper was not exploiting the individual's name or likeness for commercial reasons, Bob succesffuly argued in the trial court that the claim must be dismissed. Bob also convinced the Appellate Division, Second Department, to uphold the dismissal on appeal.

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.

Business Litigation - Appellate Practice - Foreclosure - Surplus Monies for General Creditors

Ercolani v. Sam & Al Realty Co., 17 N.Y.2d 299 (1966)

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.