Representative Matters
Representation of an Individual In Child Support Matter Regarding Mistaken Identity
Matrimonial & Family Law – Enforcement of Child Support – Wrongful Garnishment of Wages – Mistaken Identity
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).
Commercial Finance – Real Estate Transactions – $21 Million Construction Loan for Development of Mixed Use Shopping Center
Commercial Finance – Real Estate Transactions – Construction Loan for Mixed Use Shopping Center
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.
Matter of Sasso, unpublished decision of Westchester County Surrogate’s Court dtd. July 25, 2011 (File No. 2000-1938/E)
Trusts & Estates – Surrogate’s Court Litigation – Invalidating Release & Discharge Agreement
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.
Representation of Father in Successfully Enforcing Stipulation allowing Father to Make Final decisions on Child’s Religious Upbringing
Matrimonial & Family Law – Enforcement of Settlement – Decisions on Religious Upbringing of Children
Our Matrimonial & Family Law lawyers are often retained to enforce a client’s rights under a settlement agreement made by the client and his or her ex-spouse. Here, the parties had entered into a stipulation giving the father the final decision making authority on a child’s religious upbringing. Kristen Mackay Pennessi and Kathleen Donelli successfully argued in Family Court that the mother violated the stipulation when she refused to allow the child to attend Bar Mitzvah classes.
Representation of Mother in Successfully Opposing Father’s Petition For Downward Modification of Child Support
Matrimonial & Family Law – Downward Modification of Child Support
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.
Sellmon v. Cotter (Sup. Ct., Westchester Co., Index No. 11444/11)
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.
Representation of Banking Client in Successful Restructure of Corporate Debt
Milton R. Gleit, Joseph P. Harrington
Commercial Finance – Corporate & General Business – Successful Restructure of Corporate Debt
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.
Representation of Wife in Successfully Arguing that Forgiveness of a Loan to Husband is Considered Income When Calculating Maintenance
Matrimonial & Family Law – Post Judgment Maintenance Calculation – Forgiveness of Loan is Considered Income For Purposes of Calculating Maintenance
Our matrimonial lawyers often represent clients post-judgment for purposes of enforcing or modifying support obligations. Where the husband was required to pay the wife maintenance each year based on a calculation of his income, Kristen Mackay Pennessi & Kathleen Donelli successfully argued that where the husband received an unsecured loan from his employer in the amount of over $5 million, the portion of the loan forgiven each year was constitutes income to the husband for purposes of calculating his maintenance obligation.
Westchester Playhouses v. Assessor of Town of Rye (Supreme Court, Westchester Co. 2011)
Tax Certiorari & Condemnation – Valuation of Ancient Theater
In order to succeed for their clients, tax certiorari 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.
Corporate & General Business – Sale of Drug Store’s Prescription Inventory & Customer Lists to CVS
Corporate & General Business – Non-Compete Clauses – Sale of Drug Store’s Prescription Inventory & Customer Lists
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.