Commercial Litigation

Landau, Davis, Boggio & Nimetz - McCarthy Fingar Lawyers

The McCarthy Fingar Team

McCarthy Fingar’s Commercial Litigation lawyers are among the best respected in White Plains and Westchester and throughout the New York metro region. Our lawyers help clients minimize risk and distraction in their businesses. We recognize that commercial litigation can be complicated and expensive and can have unintended consequences for our clients and their businesses. We seek to help clients gain leverage in the most efficient manner, resulting in favorable outcomes. Thus, we begin every engagement with an evaluation of the facts and a discussion with the client of the client’s legal rights and options. Sometimes, our team negotiates settlements at the inception of engagement, if such settlements are in our client’s best interest. By maintaining a focus on the client’s economic interests throughout the discovery, pretrial and trial phases of litigation, the firm has successfully resolved numerous business disputes, permitting their clients to be ahead of the competition.

Our lawyers regularly appear before state and federal courts in New York as well as arbitration and alternate dispute resolution forums. We represent individuals, corporations, partnerships, joint ventures and other entities in a wide variety of disputes, including, but not limited to, the following: breach of contract, fraud, business torts, business dissolutions, non-competition agreements in employment contracts, misappropriation of trade secrets, construction, commercial landlord/tenant, commercial real estate and insurance coverage. Our lawyers often are engaged for an appeal only, and our lawyers in our Appellate Practice appear before the Appellate Divisions of the New York State Supreme Court, the New York Court of Appeals and before the United States Federal Circuit Courts.

Banking

We represent a number of nationally chartered financial institutions as well as those chartered here in New York, and other jurisdictions. Our firm represents clients involving defaulted obligations, foreclosures, loan workouts and lender liability issues.

Business Organizations

Our firm represents client in shareholder derivative actions, deadlocks and minority oppression matters, dissolution, securities issues and arbitration.

Environmental

Our litigators, especially those in our Municipal Law & Land Use group, represents clients in environmental and land use matters. In particular, we counsel municipal and individual clients on compliance with municipal, state and federal regulations. We also represent clients on environmental civil actions and handle Article 78 proceedings and related matters.

Loan Restructures and Workouts

Working with the firm’s Commercial Finance group, our litigators represent clients in all courts to ensure that McCarthy Fingar’s commercial lending clients obtain the greatest recovery.

Other Litigation

The lawyers in McCarthy Fingar’s Commercial Litigation group represents clients in a wide variety of civil disputes. We describe some of our other experiences and resources below:

  • Estates and Trusts. Our lawyers represents clients in litigation in the Surrogate’s Court, including will contests, estate and trust accounting and other contested estate and trust related matters. For more information, see our Surrogate’s Court Litigation page.
  • Matrimonial and Family Law. When Matrimonial and Family law matters are not amicably resolved, we represent clients in litigation on such matters. See our Matrimonial and Family Law page for more information.
  • Tax Certiorari. The firm does tax certiorari work, with an emphasis on properties located in Westchester, Rockland and Putnam counties. For more information, see our Tax Certiorari & Condemnation page.

Contact Us

McCarthy Fingar’s litigation lawyers are dedicated to our clients’ success. If you think you may require our assistance or have any questions, please contact Robert H. Rosh by email (rrosh@mccarthyfingar.com) or phone (914-385-1025) or James K. Landau by email (jlandau@mccarthyfingar.com) or phone (914-385-1030).

06/30/2020

Landau Elected President of White Plains Bar Association

James K. Landau

James K. Landau, a member of our Cannabis LawCommercial Litigation and Appellate Practice groups, was sworn in as President of the White Plains Bar Association (WPBA). A member of the WPBA Board of Directors since 2014, Jim previously served as Vice President and Secretary. Jim joins current and former McCarthy Fingar attorneys, Dolores Gebhardt, Joel M. Aurnou, Kathleen DonelliJoseph P. Harrington, Martin Drazen and John G. McQuaid, all of whom served as WPBA President.

06/04/2020

Landau Speaks on Litigation Trends in Cannabis Industry

James K. Landau

James K. Landau, a member of our Cannabis LawCommercial Litigation and Appellate Practice groups, spoke on “Litigation Trends in the Cannabis Industry”, in a program sponsored by the Westchester County Bar Association

03/13/2020

Landau in Panel Discussion on Attorneys in Social Media

James K. Landau

James K. Landau, a member of our Cannabis LawCommercial Litigation and Appellate Practice groups, was part of a webinar panel discussion for a program entitled “Attorneys in Social Media” sponsored by the Practicing Law Institute.

02/28/2020

Landau Speaks on Litigation Trends in Cannabis Industry

James K. Landau

James K. Landau, a member of our Cannabis Law, Commercial Litigation and Appellate Practice groups, spoke on “Litigation Trends in the Cannabis Industry “, in a program sponsored by the Westchester Black Bar Association.

01/29/2020

Landau Speaks on Cannabis Law & Enforcement Issues in Various States

James K. Landau

James K. Landau, a member of our Cannabis LawBusiness Litigation and Appellate Practice groups, spoke on “Commercial Litigation Issues to Date, Enforcement Issues, and Experience in Other Jurisdictions”, in a program entitled, “Budding Cannabis and CBD Litigation: Are You Ready for the Green Wave Heading Towards New York?”, sponsored by the Commercial and Federal Litigation Section of the New York State Bar Association. Jim’s presentation and the presentation of other speakers are in the news, as the New York State Bar Association adopted a report from its Committee on Cannabis Law that supports the legalization of adult recreational marijuana use in New York.

10/01/2019

McCarthy Fingar’s “Super Lawyers”

Frank W. Streng Gail M. Boggio Kathleen Donelli Dolores Gebhardt Douglas S. Trokie James K. Landau

Six of our lawyers have been selected Super Lawyers in the New York Metropolitan area. Gail M. Boggio has again been selected in the fields of Estate & Trust Litigation/Estate Planning & Probate/Elder Law. Kathleen Donelli has again been selected in the field of Family Law. Dolores Gebhardt has again been selected in the field of Family Law. James K. Landau has again been selected in the fields of Commercial Litigation and Appellate, and has again been selected for the Top 25 in Westchester County for Super LawyersFrank W. Streng has again been selected in the fields of Estate & Trust Litigation and Estate Planning & Probate. Douglas S. Trokie has again been selected in the fields of Business/Corporate, Closely Held Business, Real Estate, Business and Civil Litigation. Super Lawyers is a listing of outstanding lawyers from more than 70 practice areas who have been recognized by their colleagues as having the highest degree of peer recognition and professional achievement.

06/18/2019

Landau & Trokie Speak on Impending Legalization of Cannabis

Douglas S. Trokie James K. Landau

James K. Landau and Douglas S. Trokie, both members of our Cannabis Law group, spoke at a CLE program entitled, “Impending Legalization of Cannabis 2019: The Buzzz for Businesses.” This program was co-sponsored by the FPA Greater Hudson Valley Chapter, the Westchester County Bar Association and the Westchester Chapter of the New York State Society of CPAs.

06/03/2019

Landau Attends Symposium Hosted by Justices of Appellate Division, Second Department

James K. Landau

James K. Landau, a member of our Cannabis LawCommercial Litigation and Appellate Practice groups, and Co-Chair of the Appellate Practice Committee of the Westchester County Bar Association, attending a symposium for bar leaders hosted by Justices Connolly, Cohen and Duffy of the Appellate Division, Second Department.

05/23/2019

Landau & Trokie Speak on Legalization Status of Cannabis & Hemp in New York & Connecticut

Douglas S. Trokie James K. Landau

James K. Landau and Douglas S. Trokie, both members of our Cannabis Law group, spoke on “Legalization Status of Cannabis and Hemp in New York & Connecticut.” This program was co-sponsored by BOHCA (Business Owners Hemp Cannabis Association).

05/08/2019

Landau Speaks on Cannabis Law

James K. Landau

James K. Landau, a member of our Cannabis LawCommercial Litigation and Appellate Practice groups, gave an overview on recent decisions in cannabis law in a CLE program entitled, “Impending Legalization – Hot Topics in Cannabis Law.” The program was sponsored by Celesq and hosted by the West LegalEdcenter.

04/11/2019

Landau Lectures for WCBA on Cannabis Law

James K. Landau

James K. Landau, a member of our Cannabis LawCommercial Litigation and Appellate Practice groups, gave an overview on recent decisions in cannabis law in a CLE program entitled, “Impending Legalization – Hot Topics in Cannabis Law.” The program was sponsored by the Cannibas Law Committee of the Westchester County Bar Association.

03/15/2019

Landau Speaks on Ethics in Social Media

James K. Landau

James K. Landau, a member of our Cannabis LawCommercial Litigation and Appellate Practice groups, was part of a panel discussion in Manhattan on a program entitled “Ethics in Social Media 2019” sponsored by the Practicing Law Institute.

02/01/2019

Landau Co-Authors Article on Cannibis Law

James K. Landau

With the expected legalization of marijuana in New York, McCarthy Fingar’s corporate and litigation lawyers are gearing up to represent clients as to the legal issues presented by such legalization. One of our lawyers, James K. Landau, a member of our Cannabis LawCommercial Litigation and Appellate Practice groups, co-authored an article in in the February, 2019 issue of Westchester Lawyer, published by the Westchester County Bar Association, entitled, “The Expected Legalization of Cannabis for Adult Use in New York Will Bring New Challenges for Attorneys.”

03/28/2018

Landau Elected to WCBA Board

James K. Landau

James K. Landau, a member of our Commercial Litigation and Appellate Practice groups, was elected to the Board of Directors of the Westchester County Bar Association.

03/20/2018

Landau Speaks on Debt Collection Issues for NYSBA

James K. Landau

James K. Landau, a member of our Commercial Litigation and Appellate Practice groups, lectured in Mt. Kisco, New York on CPLR Article 52 Enforcement Devices as part of an all-day program entitled “Debt Collections and the Enforcement of Money Judgments” for a program sponsored by the Business Law Section of the New York State Bar Association.

03/16/2018

Landau on Panel Discussing Ethics for Attorneys in Social Media

James K. Landau

James K. Landau, a member of our Commercial Litigation and Appellate Practice groups, was part of a panel discussion in Manhattan on a program entitled “Ethics for Attorneys in Social Media” sponsored by the Practicing Law Institute.

03/12/2018

Nimetz Joins Firm as Associate Attorney

Irma K. Nimetz

We are pleased to announce that Irma K. Nimetz has joined the firm as an associate attorney and is a member of our Appellate PracticeCommercial Litigation and Surrogate’s Court Litigation groups.  Prior to joining McCarthy Fingar, Irma was an attorney with the New York State Attorney General’s Office, where she received the Louis J. Lefkowitz Memorial Award for outstanding performance by an Assistant Attorney General. Irma has experience handling governmental investigations against individuals, businesses and not-for-profit organizations, as well as defending actions and Article 78 proceedings brought against the State of New York and its agencies.

07/04/2017

Landau Joins Firm as a Partner

James K. Landau

We are pleased to announce that, effective July 4, 2017, James K. Landau has joined the firm as a partner and is a member of our Commercial Litigation and Appellate Practice groups. Jim has spent the bulk of his experience at Proskauer Rose LLP and Brown Raysman Millstein Felder & Steiner LLP. Jim has represented companies of all sizes and individuals in federal, state and local courts and tribunals, including arbitrations before the American Arbitration Association and mediations. Jim’s practice focuses on a broad range of matters, including commercial real estate litigation, commercial landlord-tenant litigation, commercial collection work, commercial arbitrations, insurance coverage litigation, bankruptcy litigation, employment disputes, partnership dissolution proceedings, and mortgage foreclosure actions. Jim also frequently counsels employers and employees in connection with the enforceability of restrictive covenants in employment agreements.

03/01/2015

Trokie Joins McCarthy Fingar as New Partner

Douglas S. Trokie

We are pleased to announce that, effective March 1, 2015, Douglas S. Trokie has joined the firm as a partner and is a member of our Commercial LitigationCommercial FinanceCorporate & General Business and Real Estate Transactions groups. Prior to joining the firm, Doug was a founding partner of Trokie Landau LLP, and has been representing individuals and companies of all sizes for over 30 years in a broad range of commercial, corporate, real estate and litigation matters, both in the New York area and worldwide.

10/01/2013

Boggio, Bramson, Brophy, Donelli, Gebhardt & Miller Selected as Super Lawyers

Gail M. Boggio Howell Bramson Kathleen Donelli Dolores Gebhardt Hon. Sondra M. Miller

Six of our lawyers have been selected Super Lawyers in the New York Metropolitan area. Gail M. Boggio has been selected in the fields of Estate & Trust Litigation/Estate Planning & Probate/Elder Law. Howell Bramson has again been selected in the fields of Estate Planning/Tax and Corporate Business. Joseph Brophy has again been selected in the fields of Personal Injury/Medical Malpractice, General, Estate & Trust Litigation. Kathleen Donelli has again been selected in the fields of Family Law/Collaborative Law/Appellate. Dolores Gebhardt has again been selected in the fields of Family Law/Collaborative Law/Appellate. Judge Sondra Miller has again been selected in the fields of Appellate/Family Law. Super Lawyers is a listing of outstanding lawyers from more than 70 practice areas who have been recognized by their colleagues as having the highest degree of peer recognition and professional achievement.

11/30/2011

Donelli Lectures for NYSBA on “Avoiding Ethical Dilemmas in Day-to-Day Practice”

Kathleen Donelli

Kathleen Donelli lectured on “Avoiding Ethical Dilemmas in Day-to-Day Practice” at the Marriott Hotel in Tarrytown, New York on November 30, 2011 for the Committee on Attorney Professionalism of the New York State Bar Association.

06/15/2011

Gebhardt Discusses Her Term as President of Westchester Women’s Bar Association

Dolores Gebhardt

In finishing her one year term as President of the Westchester Women’s Bar Association, Dolores Gebhardt spoke at the annual dinner on June 15, 2011 about WWBA’s accomplishments during her term. She also had this to say about her original goal to increase the number of men in WWBA: “One of the goals of my presidency was to increase the involvement of men in the WWBA. Despite the difficult economic climate, our membership was similar to last year’s. In fact, as of this writing, we had over 600 members, and kept our ten delegates to WBASNY. Better yet, nearly 70 members are men . . . more than last year!”

04/01/2008

Davis Joins Firm and Heads Up New Tax Certiorari & Condemnation Group

Stephen Davis

Stephen Davis has merged his practice and joined the firm as counsel and is a member of our Commercial Litigation, Tax Certiorari and Condemnation and Real Estate Transactions groups.

06/01/2006

Greenawalt Appointed to Task Force of Westchester County Department of Parks

William S. Greenawalt was appointed Chair of the Westchester County’s Citizen’s Task Force on Deer Management and Forest Regeneration. The appointment was made by the Westchester County Department of Parks, Recreation and Conservation. (6/06). This new Task Force, amongst other things, is addressing problems of invasive plant species, acid rain, invasive earthworms and diseases killing trees and plants. Bill also serves as Chair of the Westchester County Parks Board

05/03/2006

Rosh Lectures for NYSBA on Mortgage Foreclosures

Robert H. Rosh

Robert H. Rosh lectured on Mortgage Foreclosures in Tarrytown, New York on May 3, 2006 for the Real Property Law Section of the New York State Bar Association as part of an all-day program entitled “Practical Skills: Mortgage Foreclosures and Workouts”.

12/01/2005

Greenawalt Joins Firm as Counsel and is Part of Commercial Litigation Group

We are pleased to announce that William S. Greenawalt has joined our Firm as Counsel. Bill is a member of the Firm’s Commercial Litigation group.

08/01/2005

Santoro Joins Firm as Associate

Michelle L. Santoro

Michelle L. Santoro has joined the firm as an associate and is a member of our Commercial Litigation and Matrimonial and Family Law groups.

04/24/2002

Donelli Lectures for WWBA on Taking & Defending Depositions

Kathleen Donelli

Kathleen Donelli lectured on April 24, 2002 in White Plains, New York for the Westchester Women’s Bar Association on “Taking and Defending Depositions.” For lecture materials, click on Seminar Outline.

KOSL Building Group, LLC, et al. v. Minvielle, AAA Case No. 01-18-0004-2257-2-JF

James K. Landau

James K. Landau

Commercial Litigation – Mediation – Dispute Over Land Development

Our Commercial Litigation lawyers are sometimes asked to assist clients in disputes that can be resolved by mediation. Here, James K. Landau  successfully represented a contractor in connection with a dispute over an owner of land to be developed in Rye, New York. The parties entered into a contract giving KOSL, the exclusive right to build a house and other improvements on the subject property. The owner claimed that notwithstanding the foregoing, it had the right to choose another contractor to build a sea wall and dock on the property. After successfully invoking the alternative dispute resolution procedures provided in the contract, Mr. Landau obtained a favorable settlement on behalf of KOSL in mediation conducted via the American Arbitration Association.

In the Matter of the Application of AVC Properties LLC v. The Village of Mamaroneck Zoning Board of Appeals, et al. (Sup. Ct. Westchester, Index Nos. 59146 and 62808/2018)

James K. Landau, Lori Lee Dickson

James K. Landau Lori Lee Dickson

Municipal Law & Land Use – Article 78 Proceedings – Zoning Board of Appeals

McCarthy Fingar’s Municipal Law & Land Use lawyers are often defending decisions made by our municipal clients.  Here, James K. Landau and Lori Lee Dickson successfully obtained the dismissal of two Article 78 petitions brought by AVC Properties, a landowner and developer who sought to appeal from resolutions issued by against firm client Village of Mamaroneck Zoning Board of Appeals (the “ZBA”). The Court agreed with ZBA’s argument that challenges to its resolutions were not ripe for judicial review because the resolutions were not final and any claimed harm by the landowner may be prevented, ameliorated or rendered moot by further steps available to petitioner and further administrative action.

[Read in full]

Krowe v. Todd, AAA Case No. 01-18-0000-4009

James K. Landau, Irma K. Nimetz

James K. Landau Irma K. Nimetz

Commercial Litigation – Arbitration/Mediation

Our Commercial Litigation lawyers represent clients in arbitration before the American Arbitration Association. James K. Landau  and Irma K. Nimetz successfully represented a business owner in a dispute with the other member of a closely held limited liability company. Here, our client commenced an arbitration through the American Arbitration Association seeking damages on theories of breach of contract, breach of fiduciary duty, breach of the covenant of good faith and fair dealing and seeking an accounting and the imposition of a constructive trust based on certain alleged unauthorized use of company funds by the respondent. After the respondent interposed counterclaims and moved for summary judgment, a settlement favorable to our client was obtained in mediation.

Brook v. NYI Building Products, Inc., et al. (Sup. Ct., Nassau, Index No. 60803/17)

Douglas S. Trokie, James K. Landau

Douglas S. Trokie James K. Landau

Commercial Litigation – Corporate & General Business – Breach of Contract – Non-Compete Clause

Our firm’s Commercial Litigation and Corporate & General Business groups sometimes team up for our clients. Here, James K. Landau and Douglas S. Trokie successfully represented our clients who had sold their business to defendants, only to have defendants default under a settlement agreement amending a prior stock purchase agreement, consulting agreement and a non-compete and non-solicitation agreement. We commenced an action for breach of contract as well as for a judgment declaring that that our clients had no further obligations to defendants under both of the non-compete and settlement agreements due to defendants’ breach. In an effort to get more leverage, defendants interposed a frivolous counterclaim and interposed improper disclosure demands that sought to impose burdens on plaintiffs that were greater than those imposed by the CPLR and Commercial Division Rules. A settlement favorable to our clients was obtained after we moved to dismiss the counterclaims and for sanctions.

Matter of Petition of 1241 Castle Hill LLC (Sup. Ct. Bronx, Index No. 26434/17E)

James K. Landau

James K. Landau

Commercial Litigation – Lien Law – Mechanics  Lien

McCarthy Fingar’s Commercial Litigation lawyers sometimes represent clients in connection with proceedings involving mechanic’s liens. Here, James K. Landau obtained a judgment in favor of an owner of a building cancelling and vacating a mechanic’s lien placed on the building by a supplier of restaurant products and equipment to a restaurant who was a tenant in the building. He did so by first serving the lienor with a notice and demand pursuant to § 59 of the Lien Law that the lienor commence an action to foreclose its lien or show cause why the lien should not be canceled and vacated. When the lienor failed to respond within the time frame set forth in the statute, Mr. Landau commenced a special proceeding to cancel the lien pursuant to Lien Law § 19(4).

Matter of Petition of Riverdale Equities Ltd (Sup. Ct., Bronx, Index No. 28462/2017E)

James K. Landau

James K. Landau

Commercial Litigation – Vacating Mechanics Lien

McCarthy Fingar’s Commercial Litigation lawyers sometimes assist clients in vacating mechanic’s liens. Here, James K. Landau obtained a judgment in favor of an owner of a building cancelling and vacating a mechanic’s lien placed on the building by a supplier of restaurant products and equipment to a restaurant who was a former tenant in the building. He did so by first serving the lienor with a notice and demand pursuant to § 59 of the Lien Law that the lienor commence an action to foreclose its lien or show cause why the lien should not be canceled and vacated. When the lienor failed to respond within the time frame set forth in the statute, Mr. Landau commenced a special proceeding to cancel the lien pursuant to Lien Law § 19(4).

[Read in full]

Sellmon v. Cotter (Sup. Ct., Westchester Co., Index No. 11444/11)

Robert H. Rosh

Robert H. Rosh

Commercial Litigation – Real Estate Transactions – Lease Dispute – Avoidance of Liability under Guaranty

McCarthy Fingar’s Commercial 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.

Breach of Fiduciary Duty, Fraud & Other Torts (U.S. Dist. Ct., S.D.N.Y.) (2008)

Robert H. Rosh

Robert H. Rosh

Commercial Litigation – Breach of Fiduciary Duty & Fraud

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.

Wiernik v. Kurth (Sup. Ct., Westchester Co., Index No. 6216/07) (2010)

Robert H. Rosh

Robert H. Rosh

Commercial LitigationReal Estate Transactions – Unlicensed Home Improvement Contractor

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.

Guastella v. Wheeler, Sup. Ct., Westchester Co., Index Nos. 77891/06; 10129/07

Robert H. Rosh

Robert H. Rosh

Commercial Litigation – Land Use Litigation – Real Estate Easements

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.

Commercial Building Sold in the Settlement of a Dissolution Action

Douglas S. Trokie

Douglas S. Trokie

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

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.  

Settlement of Partnership Dispute on Misuse of Funds on Eve of Trial

Robert H. Rosh

Robert H. Rosh

Commercial Litigation – Partnership Disputes – Misuse of Funds

McCarthy Fingar’s Commercial 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.

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

Frank W. Streng, Gail M. Boggio

Frank W. Streng Gail M. Boggio

Surrogate’s Court LitigationTrusts & EstatesContested Accountings – Business Assets

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.

[Read in full]

Unemployment Insurance Appeal Board, White Plains, New York, 2009

Robert H. Rosh

Robert H. Rosh

Commercial Litigation – Pro Bono Work – Department of Labor Determination Disqualifying Claimant from Receiving Benefits Overturned on Administrative Appeal

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.

Contest over Finder’s Fee for Sale of Commercial Real Estate

Dolores Gebhardt, Hon. Sondra M. Miller

Dolores Gebhardt Hon. Sondra M. Miller

Appellate PracticeCommercial Litigation – Reduction on Finder’s Fee for Commercial Real Estate Sale

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.

Giordano v. Berisha (Sup. Ct., Bronx Co., Index No. 23224/06)

Robert H. Rosh

Robert H. Rosh

Commercial Litigation – Goods Sold and Delivered

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.

Breach of Fiduciary Duty and Fraud (U.S. Bankruptcy Court) (EDNY) (2008)

Robert H. Rosh

Robert H. Rosh

Commercial Litigation – Breach of Fiduciary Duty and Fraud – Fraudulent Conveyances

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.

Giordano v. Need Oil Corporation (Sup. Ct., Westchester Co., Index No. 21891/05)

Robert H. Rosh

Robert H. Rosh

Commercial Litigation  – Contract Dispute – Guarantor’s Liability under Note

Our Commercial 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.

Grace v. Grace, Index No. 21143-05 (Sup. Ct., Westchester Co., Decision and Order (Lefkowitz, J.) (2006)

Robert H. Rosh

Robert H. Rosh

Commercial LitigationCorporate & General Business – Summary Judgment on Breach of Contract

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.

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

Stephen Davis

Stephen Davis

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

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.

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

Robert H. Rosh

Robert H. Rosh

Appellate Practice  – Commercial LitigationReal Estate Transactions – Option to Purchase Real Estate

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.

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Linsker v. Mohr (Sup. Ct., Westchester Co., Index No. 12788/02)

Robert H. Rosh

Robert H. Rosh

Commercial Litigation – Jurisdictional Dispute – Court Dismisses Action for Lack of Personal Jurisdiction over Defendant

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.

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

Robert H. Rosh

Robert H. Rosh

Commercial Litigation – Appellate Practice – Statute of  Frauds on Real Estate Transaction

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.

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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

Stephen Davis

Commercial Litigation – Municipal Regulation – Sprinkler System Retrofit Ordinance Invalid

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.

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

Robert H. Rosh

Robert H. Rosh

Commercial Litigation – Appellate Practice – Attorney Fee Dispute

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.

[Read in full]

Caligor Medical & Office Supplies v. Mandell (Dist. Ct., Nassau) (Index No. 13011-98)

Robert H. Rosh

Robert H. Rosh

Commercial Litigation – Disputes with Vendors

Clients often ask our Commercial 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.

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)

Robert H. Rosh

Robert H. Rosh

Commercial Litigation – Appellate Practice – Article 78 Proceeding – Nursing Home

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.

[Read in full]

Midwest First v. Mosello (Sup. Ct., Westchester Co., Index No. 13615/98)

Robert H. Rosh

Robert H. Rosh

Commercial Litigation – Foreclosure – Bankruptcy & Eviction

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.

Midwest First v Mosello (Sup. Ct., Westchester Co., Index No. 13615/98)

Robert H. Rosh

Robert H. Rosh

Commercial Litigation – Deficiency Judgment – Court Admonishes Defendants for Offering Self-Serving Evidence at Hearing

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.

Chemical Bank v. East Main Inc. (Sup. Ct., Westchester Co., Index No. 20547/95)

Robert H. Rosh

Robert H. Rosh

Commercial Litigation – Mortgage Loan Dispute – Court Rejects Defendant’s Lack of Consideration Defense

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.

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

Kathleen Donelli

Kathleen Donelli

Commercial Litigation – Appellate Practice – Landlord/Tenant Issues

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.

[Read in full]

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

Kathleen Donelli

Kathleen Donelli

Commercial Litigation – Appellate Practice – Real Estate Easements

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.

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

Kathleen Donelli

Kathleen Donelli

Commercial Litigation – Appellate Practice – Real Estate Contract

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.

[Read in full]

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

Stephen Davis

Commercial Litigation – Appellate Practice – Landlord/Tenant – Tax Base Mutual Ignorance Fails To Support Reformation

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.

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

Stephen Davis

Stephen Davis

Commercial Litigation – Appellate Practice – Foreclosure – Surplus Monies for General Creditors

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.

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Presenter Description Organization Date
James K. Landau
James K. Landau

Attorneys in Social Media

Practicing Law Institute

03/13/2020
James K. Landau
James K. Landau

Litigation Trends in the Cannabis Industry

Westchester Black Bar Association

02/28/2020
James K. Landau
James K. Landau

Budding Cannabis and CBD Litigation: Are You Ready for the Green Wave Heading Towards New York?

Commercial and Federal Litigation Section of the New York State Bar Association

01/29/2020
James K. Landau
James K. Landau

The Developing Commercial Cannabis Case Law

Committee on Cannabis Law of the New York State Bar Association

01/28/2020
Douglas S. Trokie
Douglas S. Trokie
James K. Landau
James K. Landau

Impending Legalization of Cannabis 2019: The Buzzz for Businesses

FPA Greater Hudson Valley Chapter, Westchester County Bar Association and Westchester Chapter of the New York State Society of CPAs

06/18/2019
James K. Landau
James K. Landau

Impending Legalization – Hot Topics in Cannabis Law

Celesq and West LegalEdcenter

05/08/2019
James K. Landau
James K. Landau

Impending Legalization – Hot Topics in Cannabis Law

Cannibas Law Committee of the Westchester County Bar Association

04/11/2019
James K. Landau
James K. Landau

Ethics in Social Media 2019

Practicing Law Institute

03/15/2019
Kathleen Donelli
Kathleen Donelli

Ethics & Professionalism Update 2012

Pace University School of Law, White Plains, New York

02/05/2012
Kathleen Donelli
Kathleen Donelli

Avoiding Ethical Dilemmas in Day-to-Day Practice

Committee on Attorney Professionalism of the New York State Bar Association

11/30/2011
Dolores Gebhardt
Dolores Gebhardt

Departing Comments, Completion of Term as President of Westchester Women’s Bar Association

Mamaroneck, New York, Westchester Women’s Bar Association

06/15/2011

Expert Witnesses in Matrimonial Cases: Direct & Cross-Examination

Westchester Women’s Bar Association, White Plains, New York

10/23/2007
Robert H. Rosh
Robert H. Rosh

Mortgage Foreclosures, as part of an all-day program entitled “Practical Skills: Mortgage Foreclosures and Workouts”

Real Property Law Section of the New York State Bar Association, Tarrytown, New York

05/03/2006

“Anatomy of an Election: Issues for Election Law Lawyers”

White Plains, New York, Westchester Women’s Bar Association

10/20/2005
Kathleen Donelli
Kathleen Donelli

“Taking and Defending Depositions”

Westchester Women’s Bar Association

04/24/2002