Representative Matters

Landau, Davis, Nimetz & Borrelli - Appellate Attorneys in Westchester

Mitarotonda v. Mitarotonda, ___ A.D.3d ___ (2d Dep’t 2019)

Kristen Mackay Pennessi

Kristen Mackay Pennessi

Matrimonial & Family Law – Child Custody – Appellate Practice – Constructive Emancipation

Our matrimonial lawyers often represent clients on financial issues relating to child custody. Here, Kristen Pennessi & Kathleen Donelli won an appeal in the Appellate Division in which the lower court denied a post-divorce judgment motion, brought by the noncustodial parent (the “father”), to stop paying the custodial parent (our client, the “mother”) child support based on constructive emancipation. Under the doctrine of constructive emancipation, New York courts have held that child support payments may be suspended where the “custodial parent unjustifiably frustrates the noncustodial parent’s right of reasonable access.” Kristen and Kathleen successfully argued that our client, the custodial parent, did not deliberately frustrate or actively interfere with the father’s relationship with his children. Therefore, the court ordered that the father continue to pay child support even though his children refused to have meaningful contact with him.

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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.

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Probate Proceedings – Complicated Uncontested Will

Michael S. Kutzin

Michael S. Kutzin

Trusts & Estates– Probate Proceedings – Complicated Uncontested Will

Not all probate proceedings are created equal. In 2018, after taking over from prior counsel, Michael S. Kutzin succeeded in having a will admitted to probate that clerks in the New York County Surrogate’s Court referred to as one of the most complex uncontested matters that they had seen. In that case, the decedent, who was unmarried and had no children, had filed a prior will in the court which had a series of unusual provisions, including a trust for the benefit of first cousins once removed living in Ireland and England. She also had a large extended family in the United States and abroad. To complicate matters further, numerous beneficiaries and interested parties died after the decedent did but before the will was admitted to probate, making the probate particularly difficult. Nevertheless, through hard work and determination, Michael succeeded in having the will admitted to probate.

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).

Mamaroneck Coastal Environmental Coalition v. Village of Mamaroneck Board of Appeals ___ A.D. 3d __ (2d Dep’t July 26, 2017).

Lester D. Steinman

Lester D. Steinman

Municipal Law & Land Use  – Appellate Practice – Defending Land Use Board Decision 

Developing a proper record and articulating detailed findings are the keys for our Municipal Law & Land Use lawyers to successfully defending local land use board decision making, both in the lower court and in the appellate court. Here, Petitioner brought an Article 78 proceeding challenging the ZBA’s determination to grant a special permit to the Hampshire Club to conduct nonmember events on its property as arbitrary, capricious and contrary to law. Representing the ZBA, Lester D. Steinman and Anna L. Georgiou successfully argued that the ZBA’s determination was rationally based and supported by substantial evidence in the record. The Supreme Court, Westchester County, (Jamieson, J.S.C.) agreed dismissing the Article 78 proceeding. On appeal, the Supreme Court’s determination was affirmed by the Appellate Division, Second Department.

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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).

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Matter of Imperato, 149 A.D.3d 1072 (2d Dep’t 2017)

James K. Landau

James K. Landau

Appellate Practice – Surrogate’s Court Litigation – Property Turnover Proceedings – Statutes of Limitations

Our firm’s Surrogate’s Court Litigation group represents both fiduciaries and beneficiaries in Property Turnover Proceedings, and statutes of limitations issues frequently arise in such cases. Here, James K. Landau, who is also a member of our Appellate Practice and Commercial Litigation  groups, convinced the Appellate Division, Second Department, to reverse the Surrogate’s Court order that had granted the executor’s motion for summary judgment against Mr. Landau’s client in an action alleging conversion, fraud, breach of fiduciary duty and the imposition of a constructive trust and denied Mr. Landau’s client’s cross-motion for summary judgment dismissing the petition. In reversing, the Second Department agreed with Mr. Landau’s argument that petitioner had failed to meet her prima facie burden of establishing her entitlement to judgment as a matter of law on the causes of action alleging fraud, breach of fiduciary duty and seeking the imposition of a constructive trust. The Second Department also agreed with Mr. Landau’s argument that his client’s cross-motion to dismiss the conversion cause of action in the petition should have been granted because it was not commenced within three years of the alleged conversion.

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1216 Henry Avenue LLC v. Village of Mamaroneck Planning Board (Sup. Ct,, Westchester Co. February 7, 2017)

Lester D. Steinman

Lester D. Steinman

Municipal Law & Land Use – SEQRA – Conditioned Negative Declaration 

Knowledge of the intricacies of the New York State Environmental Quality Review Act (“SEQRA”) is a vital asset of our Municipal Law & Land Use in defending local government land use board decisions against environmental challenges. Here, Petitioner filed an Article 78 proceeding challenging certain aspects of a Conditioned Negative Declaration (“CND”) adopted by the Planning Board under SEQRA in connection with its review of a three lot subdivision application.  Representing the Planning Board, Lester D. Steinman moved to dismiss the litigation on the grounds that, in the absence of a determination on the merits of the underlying subdivision application, the challenge to the CND was premature. The Supreme Court, (Minihan, A.J.S.C.), agreed and dismissed the proceeding.

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