McCarthy Fingar's Corporate & Commercial Finance lawyers have large experience in dealing with domestic and even international banking matters. Here, Peter D. Aufrichtig represented a multi-national Bank client in connection with a series of ISDA Master Agreements to allow the Bank to deal, from a variety of its international branches, with other Banks in connection with a wide variety of financial instruments including derivatives.

Inbound investments into the United States from abroad can be subject to unduly high taxes, both in the country of origin and in the United States. With proper planning and structuring, our Corporate and Tax lawyers can help in minimizing such taxes. Here, Howell Bramson and Robert J. Kiggins represented a group of foreign investors who invested in a Tony Award winning Broadway show. Howell and Bob recommended forming a corporate ownership structure for the investors that was designed to limit their taxes both in the U.S. and the country of origin (the United Kingdom).

Sometimes, disputes on leasing and real estate transactions cannot be resolved out of court. In his representation of 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.

The value and marital portion of a spouse’s business interest are often essential issues in a divorce action. Kristen Mackay Pennessi and Kathleen Donelli successfully argued that the wife was entitled to only 25% of her husband’s partnership interest, if and when he actually receives any monies for his partnership interest. In this case, it was proven that the wife had only negligible and indirect contributions to the husband’s business partnership.

After divorce or support decrees are finalized, Matrimonial & Family Law lawyers sometimes make or defend against applications for a modification of child support. Kristen Mackay Pennessi successfully opposed the husband’s request for a downward modification of child support. In this case, although the husband was disabled and unable to continue to work as a firefighter, he was still collecting his full salary. Thus, there was no change of circumstances to warrant a reduction in the child support payments.

Enforcement of child support obligations in matrimonial actions is a common issue after a divorce decree is finalized. Where a payor has not paid child support, a Notice to Withhold Income for Child Support may be issued against the payor. However, where a Notice to Withhold Income for Child Support was wrongly issued against an out of state individual, Kristen Mackay Pennessi was able to successfully resolve the case by proving that the out of state individual had been mistakenly identified as someone else. After resolving the mistaken identity issue, Kristen was able to have the individual’s wages repaid (after they had wrongly been garnished pursuant to the Notice).

Our corporate lawyers represent foreign-based companies doing business transactions with U.S.-based companies. Here, David A. Menken acted as U.S. counsel to an Indian construction company in the negotiation and execution of a construction contract with a U.S. airplane manufacturer to build an aircraft maintenance facility at an airport in India.  

Our corporate lawyers represents shareholders in negotiations regarding, among other things, corporate management agreements dealing with capital contributions and the transferability of corporate stock. Here, David A. Menken represented the founder and principal shareholder of a consumer-products e-Commerce company in the negotiation of a shareholder agreement that established rules for the management of the corporation. David's work also ensured that the corporation's directors and officers not only worked effectively, but were mindful of the business goals of David's client as the primary shareholder.

A corporate lawyer cannot effectively represent a media company unless he or she understands the legal and business aspects of the media industry. Here, David A. Menken represented a New York media company in the acquisition of a consumer interest magazine. Purchase of an asset such as a magazine requires comprehensive due diligence as well as obtaining representations, warranties and indemnifications to ensure that the acquiring company has minimal risk that it is not purchasing a troubled asset.

As part of his work for clients, David A. Menken often facilitates foreign in-bound business investment by counseling clients on business formation issues, corporate governance and compliance with U.S. laws. In this matter, David acted as U.S. co-counsel for an Indian law firm that was establishing a U.S. business presence for a client based in India.

Representing a web-based concert and minor league baseball ticketing agency, David A. Menken drafted an on-line Terms of Service Agreement and a Privacy Policy for use on its web site in connection with sales of tickets and merchandise. The Terms of Service and the Privacy Policy were each drafted to provide maximum protection for the client, and to fully comply with local and Federal law, in an area of commerce which is rapidly evolving, both legally and technologically.

David A. Menken is corporate and technology counsel to a web-based aggregator and distributor of news videos. As part of his work, David seeks to assist his client to grow by means of attracting outside investment while at the same time keeping control of the business. David also serves as trademark and technology counsel to the client, protecting his client's unique business logo and proprietary software.

David A. Menken represented a rock band in defense of a third party complaint to Facebook. The complaint prompted Facebook to disable its site in derogation of Facebook's own terms and conditions of service, thereby causing the band considerable loss of publicity.

Tax Certiorari & Condemnation lawyers must focus on whether a property has current rental value. In multiple annual assessment proceedings in which Stephen Davis sought tax refunds based on a high tax assessment of $950,000, Steve successfully negotiated a reduction in the assessment of an ancient theatre to $480,000. The lowered assessment reflects treatment of an older theatre (circa 1922) in Port Chester as though it were vacant land. Steve successfully presented to the Assessor and the Town’s tax certiorari counsel evidence that this almost 90 year old building possessed virtually zero value. The theater, occupying approximately 75% of the building, supported no uses, as it had gone dark in the late 1970s, had reached a state of utter deterioration, and would have required a further investment of many hundreds of thousands of dollars to rehabilitate just to render it rentable. The assessor recognized the argument that a property owner need not essentially rebuild the property in order to make it income producing for creation of assessable value.

As part of their work in complicated estates, sometimes lawyers have to seek permission of the Surrogate's Court to do things that were not contemplated by decedents when they made their wills. Here, Katherine Sohr Jedlicka successfully petitioned the Surrogate’s Court for permission for the fiduciary of an estate to sell specifically devised real property in order to pay estate expenses. That application was made in order to prevent foreclosure of the real property for unpaid real estate taxes. The Court granted the relief under SCPA 1904.

Litigation sometimes takes place when agreements are signed by clients and issues exist as to the enforceability and validity of such agreements. Here, Katherine Sohr Jedlicka and Gail M. Boggio successfully opposed a motion by the former attorney for an estate fiduciary and a cross motion by the estate fiduciary seeking, among other things, to dismiss objections to the fiduciary’s judicial accounting based on a Release and Discharge agreement signed by McCarthy Fingar's client, who was not represented by a lawyer at the time the agreement was signed. The Surrogate's Court denied the motions and set aside the agreement. The court ruled the movants had not proven that the objectant was given a copy of the fiduciary’s informal account on which the agreement was based, and that she was not given a sufficient amount of time to review the same. The court also denied the motion to dismiss on an alleged violation of the statute of limitations, finding the fiduciary had not openly repudiated her fiduciary duties. 

Our Corporate and Tax lawyers often provide legal and tax advice clients on foreign investment opportunities. Howell Bramson advised a client in connection with a multi-million dollar investment, through an irrevocable family trust, in a Brazilian fund. With the growth rates in many emerging markets (e.g. the “BRIC” countries, i.e., Brazil, Russia, India and China) much higher than the growth rate in the United States, many investors are looking for opportunities in such countries. Such investments can involve complicated income tax issues as well as estate planning opportunities.

Our Tax lawyers often advise clients on opportunities through Internal Revenue Service-sponsored tax initiatives. The IRS has instituted a program - the Offshore Voluntary Disclosure Initiative - which may be of benefit to certain taxpayers who have offshore investments but have failed to disclose such investments and failed to report the income earned on such investments. Pursuant to US Treasury Regulations, disclosure of such investments is generally required on a “Report of Foreign Bank and Financial Accounts” or “FBAR” form, in which a taxpayer reports the existence of such assets. Here, Howell Bramson advised a client in connection with the client's participation in IRS's new program.

Our Corporate & General Business lawyers are involved in many different types of sales and purchases of businesses. Howell Bramson has been involved in the purchase and sale of drug stores over the years. Here, Howell completed the sale of a drug store to a publicly traded chain of drug stores.

McCarthy Fingar's lawyers are sometimes retained to recover funds from lawyers who improperly fail to give their clients moneys due them. In 2008, McCarthy Fingar partner, Joseph Brophy, who leads the firm's Legal Malpractice group, was contacted by the grandmother of a disabled young woman. The grandmother had recently been appointed as guardian by the court in place of the young woman’s parents, who were squabbling over control of money that had been awarded to their daughter in settlement of a lawsuit several years before. The grandmother was concerned that the father may have misappropriated $125,000 of her granddaughter’s money that had been entrusted to him by the court to help pay for housing for the granddaughter. The grandmother had asked the court for information, but had been told that the settlement papers were sealed. She retained Joe to apply to get access to the sealed settlement documents. The prior attorneys were uncooperative and Joe had to bring on a special proceeding to obtain the settlement documents. When he did obtain them, Joe learned that the attorneys had released $125,000 to the father in violation of a court order requiring the father to file a security interest in the house he was buying, to protect his daughter’s funds, before the money was released. After buying the house, he had then mortgaged it twice, so the $125,000 had in effect gone into the father's pocket. Joe also learned that the former lawyers had been awarded hundreds of thousands of dollars by the court for expenses in anticipation of a trial that had never taken place, and that they had never accounted to the court or their clients for any of that money. After Joe filed a legal malpractice claim against the attorneys and brought on an application for contempt against the lawyers and the father, the lawyers pressured the father to place a lien upon the house, accounted for the funds, and refunded over $177,000 to Joe’s client. The father eventually sold the house and paid back the $125,000 he owed to his daughter.

In reaching settlements in Collaborative Divorce, it is important that both sides agree on sensible financial terms. Here, Dolores Gebhardt's client was a homemaker and mother; and the husband was a business development executive. As part of the settlement, Dolores' client received substantial maintenance for 9.5 years and full ownership of the house, and the husband will continue to pay mortgage and taxes until December, 2020.

Our Commercial Finance & Corporate lawyers often work together to assist our banking and other clients. Here, Joseph P. Harrington and Milton R. Gleit represented one of our banking clients in restructuring a defaulted corporate loan. As part of their work, Joe and Milt negotiated and documented the bifurcation and restructure of a series of defaulted term loans. The creative outcome was that fifty percent of the total debt was consolidated into a single new term loan; and the remaining fifty percent was converted into a preferred equity position in the restructured borrower.

Peter D. Aufrichtig is working with a client to convey a multi-million dollar apartment on a high floor in the Trump Tower condominium at 5th Avenue in Manhattan, based on a 26 year old contract. However, the contract neither identifies the property with any particularity nor describes any specific consideration for the conveyance. The apartment has been vacant and in legal limbo for more than 25 years, until Peter's creative lawyering helped design and navigate a complex path to a successful conveyance with good, insurable title insurance. Just another example of McCarthy Fingar's Real Estate lawyers developing creative solutions to vexing legal problems.

The firm’s Tax Certiorari & Condemnation lawyers’ familiarity with Mamaroneck’s flooding conditions benefit clients seeking reduction of their assessments when those conditions adversely impact their property. Representing the owner of a high end, two tenant, 20,000 sq. ft. industrial building in Mamaroneck’s “Flats,” the Village’s industrial area, Stephen Davis successfully negotiated settlements of multiple annual tax certiorari proceedings, reducing the Town assessments by 45% and the Village assessments by 55%. In the second case, Steve achieved comparable reductions for another warehouse in “The Flats.” Steve successfully presented to the two Assessors and to the Town’s and Village’s tax certiorari counsel, evidence that the 2007 March and April floods significantly depressed market value in the area, and continues to do so. Adding to the prior flooding the deluge created by recent Hurricane Irene, these days “The Flats” of Mamaroneck seem to be referred to as the Sheldrake River flood plain. This reputation for repeated severe flooding engenders greatly reduced values for the many warehouse buildings of this once prime lower Westchester industrial area.

McCarthy Fingar’s Commercial Finance lawyers often represent our lending clients in commercial Real Estate Transactions. Here, Joseph P. Harrington represented the lender on a $21 million dollar construction loan for the development of a mixed use shopping center with a national supermarket as the anchor tenant under a long term lease. 

Buying and selling businesses is an integral part of our Corporate & General Business practice. Howell Bramson has represented drug stores over the years, including a partial or complete sale of the business. Here, Howell represented the corporate owner of a substantial drug store in a sale of its prescription inventory and customer lists to CVS. As part of the transaction, the principal of the seller entered into a non-compete agreement.

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.