Key Decisions
Matter of Vaccari, 2019 N.Y. App. LEXIS 4029, 2019 NY Slip Op 04034, 2019 WL 2218688 (1st Dept., May 23, 2019).
We represented a closed corporation and the majority shareholder in a judicial dissolution proceeding brought by the minority shareholders. We were successful in securing the dismissal of the matter by moving simultaneously: (1) to dismiss the petition concurrently with the filing of the answer; and (2) for summary judgment in our clients’ favor. The lower court (Bransten, J.) granted the motions. The lower court ruled that a motion to dismiss a complaint under CPRL § 3211(a)(7) for failure to state a cause of action may be made concurrently with the filing the answer. Pursuant to that prong of the motion, several of the claims, including the claim seeking judicial dissolution, were dismissed as a matter of law. Since an answer had been filed, and we agreed to expedite discovery, the lower court considered the summary judgment motion, and granted summary judgment dismissing the claims that had survived the motion to dismiss. The First Department affirmed. Of particular note, the First Department held that since petitioners had failed to oppose our clients’ statement of uncontroverted facts (which statement must be filed under the local rules when seeking summary judgment), the lower court correctly credited the allegations of fact contained in the statement. Upon crediting those allegations, the Second Department concluded that the lower court had properly found that petitioners had failed to raise genuine issues of material fact.
Personal
Hands-On Partner
Involvement
Hands-On Partner
Involvement
135 Bowery LLC v. 10717 LLC, 145 A.D.3d 1225, 43 N.Y.S. 3d 207 (3rd Dept. 2016).
We represented our client in a proceeding commenced in Sullivan County Supreme Court to impose a constructive trust, and for declaratory relief, with respect to certain real property acquired by the defendant limited liability company with $1,800,000 of monies stolen by our client’s former attorney. Following joinder of issue, we moved for summary judgment. Thereafter, defendant’s attorney submitted a substitution of counsel purporting to designate one of defendant’s members, who was not an attorney, as counsel of record for defendant. The member then requested a 60-day extension of time to secure new counsel and oppose the motion.
We maintained that pursuant to CPLR § 321(a) (which prohibits an entity from appearing without an attorney) the member could not properly appear on behalf of the company. The lower court agreed and denied the request. The lower court thereafter granted the summary judgment motion on default finding that defendant was derelict in timely acquiring counsel. Defendant thereafter moved to vacate the judgment, claiming reasonable excuse for the default and a meritorious defense, which the lower court denied. The Third Department affirmed, finding that the lower court acted within its discretion in concluding that defendant was aware of the pending motion and was derelict in securing counsel to oppose the motion. Further, the Third Department held that a corporation’s failure to comply with CPLR § 321 provides no basis to vacate a judgment since the rule is not intended to penalize an adverse party for the corporation’s improper appearance, but is rather to ensure that the entity is represented by a licensed attorney.
Rosenshein v. Kushner, 2016 U.S.Dist. LEXIS 114909 (S.D.N.Y., August 26, 2016), aff’d, 2017 U.S. App. LEXIS 6960 (2d Cir., April 21, 2017).
We represented a defendant in an action commenced in 2015 by an investor alleging violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”). The District Court granted our motion to dismiss the complaint on statute of limitations grounds finding that, based on the allegations of the amended complaint, the plaintiff was on inquiry notice of the alleged RICO violations by no later than the end of 2009. As such, the four year statute of limitations that govern RICO claims expired in 2013, rendering the lawsuit untimely. The District Court also denied plaintiff’s request to amend the complaint since he had already amended the complaint, and he failed to explain how a further amendment would be productive. The United States Court of Appeal for the Second Circuit affirmed the dismissal, agreeing with the District Court that the RICO statute of limitations barred the claims since inquiry notice was triggered outside the limitations period, and the investor had failed to conduct any investigation.
Redrock Kings, LLC v. Kings Hotel, Inc., 109 A.D.3d 602, 970 N.Y.S.2d 804 (2nd Dept. 2013).
We represented the holder by assignment of a mortgage and mortgage note in a foreclosure proceeding commenced against the borrower. The lower court denied our client’s motion for summary judgment on the complaint and for an appointment of a referee to compute the amount of money due our client. We appealed, and the Second Department reversed, holding that we had established prima facie entitlement to judgment as a matter of law, and agreeing with us that the defendants had failed to raise a triable issue of fact as to our client’s standing to foreclose.
Putnam County Temple & Jewish Center, Inc. v. Rhinbeck Savings Bank, 87 A.D.3d 1118 (2nd Dept. 2011), and Rhinebeck Savings Bank v. Putnam County Temple & Jewish Center, Inc., 87 A.D.3d 1125 (2nd Dept. 2011).
We represented a temple in its lawsuit against its construction lender to void certain mortgages as invalid under the Religious Corporations Law. The Temple alleged that judicial approval of the mortgages had not been properly obtained, rendering the mortgages void as a matter of law. The Temple also sued its lawyers for fraud on the court and legal malpractice. On appeal, the Second Department reinstated the Temple’s complaint. In the related foreclosure proceeding brought by the bank, the Appellate Division stayed the foreclosure proceeding pending the resolution of the Temple’s action.
Nachem v. Property Markets Group, Inc., 82 A.D.3d 573, 918 N.Y.S.2d 490 (2nd Dept. 2011).
We represented a real estate asset manager in his multi-million dollar lawsuit against his former employer for failing to recognize his equity interest in a real estate development project pursuant to the terms of the parties’ agreement. The lower court granted our client summary judgment on the issue of liability and directed discovery on the issue of damages. On appeal, the First Department affirmed the award of summary judgment, finding the terms of the agreement to be unambiguous and rejecting the defendants’ attempt to inject extrinsic evidence to vary the terms of the agreement.
Valley National Bank v. Deutsch, 88 A.D.3d 691, 930 N.Y.S.2d 477 (2nd Dept. 2011).
We represented the bank in this mortgage foreclosure proceeding. The lower court granted our client’s motion for summary judgment on the complaint and to appoint a referee to compute the amount due it. The Second Department affirmed, finding that the bank had established prima facie entitlement to summary judgment, and defendant had failed to raise a triable issue of fact with regard to any bona fide defense. Specifically, the Second Department rejected the defendants’ contention that they had limited ability to read and comprehend the English language, and thus to understand the documents that they had signed, finding that the defendants appeared at the closing with counsel and failed to show that they made any reasonable effort to have the documents read to them.
Overseas Media, Inc. v. Skvortsov, 277 Fed. Appx. 92 (2d Cir. 2008), affirming, Overseas Media, Inc. v. Skvortsov, 407 F.Supp.2d 563 and 441 F.Supp.2d 610 (S.D.N.Y. 2006).
We represented a Russian television production company and its president in a copyright infringement action brought in U.S. District Court by a Russian entity and its affiliates. In two separate opinions, the District Court granted our motion on behalf of the Russian production company to dismiss the action for lack of personal jurisdiction, finding, after extensive jurisdictional discovery, that our client was not subject to long-arm jurisdiction. The Court also granted our motion on behalf of the company’s president and dismissed the action on forum non conveniensgrounds, finding that Russia provided an adequate alternative forum to determine the infringement claims. On appeal, the Court of Appeals, Second Circuit, affirmed the dismissals.
People v. Rosenblatt, 277 A.D.2d 61, 717 N.Y.S.2d 9 (1st Dept. 2000).
We represented ticket brokers charged with felonies under the New York Tax Law for failing to collect and pay sales tax on the resale of tickets to sporting events. We moved to dismiss the indictment, contending that, as a matter of law, the Tax Law did not impose sales tax on the resale of a ticket to a sporting event. The motion was denied, and the defendants were subsequently convicted after trial of felony sales tax violations. After verdict, and prior to sentence, we moved to set aside the sales-tax convictions, extraordinary relief that is rarely granted. We argued that the trial court was no longer bound by the earlier ruling that had denied our motion to dismiss the indictment. The trial court agreed that it could review the issue, agreed with our interpretation of the Tax Law, and set aside the sales tax convictions. The People appealed, and the Appellate Division, First Department, affirmed the trial court’s decision.
WMW Machinery, Inc. and General Bearing Corporation v. Werkzeugmaschinenhandel GmbH Im Aufbau, 960 F.Supp. 734 (S.D.N.Y. 1997).
Upon the unification of East and West Germany, the Treuhandanstalt (“Treuhand”) was created to privatize the East German holdings. In this action, we represented the United States joint venture company and the joint venture corporate partner in an action filed in the United States District Court for the Southern District of New York against the Treuhand, the German Democratic Republic joint venture partner, a state-created entity exclusively responsible for the import and export of East German machine tools, and the liquidator assigned by the Treuhand. We sued for breach of fiduciary duty, breach of contract, and other relief.
Defendants moved to dismiss the complaint, claiming immunity under the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1602 et seq. (FSIA) and the Act of State Doctrine. In a decision of great significance, the District Court held that, under the “commercial activity” exception to FSIA immunity, the Treuhand could be sued here, and that the Act of State Doctrine did not preclude our clients’ claims against the Treuhand and the former East German entity
Centenaro v. Poliero 25 Misc. 3d 1207A, 901 N.Y.S. 2d 905 (Sup. Ct., Queens Co., 2009); Poliero v. Centenaro, No. 09 CV 2682 (RRM), 2009 U.S. Dist. LEXIS 83665 (E.D.N.Y August 14, 2009); Poliero v. Centenaro, No. 09 CV 2682 (RRM) (CLP), 2009 U.S. Dist. LEXIS 82764 (E.D.N.Y September 11, 2009); aff’d 373 Fed. Appx. 102, 2010 U.S. App. LEXIS 8193 (2d Cir. N.Y. 2010).
We successfully represented our Italian husband-father client in companion state and federal actions, by obtaining custody and ordering the return of three young children to the family’s home in Italy. The parents had consented to temporarily relocate their family for two years from the family’s domicile in Vicenza, Italy to New York City, to enable the husband to open a New York City office of the family’s business and attempt to reconcile the parties’ marriage.
In the state action, we successfully secured the dismissal of the wife’s divorce proceeding, and defeated the wife’s attempt to obtain custody and remain in New York, on the ground that neither party met the “residence” or domicile requirements of Domestic Relations Law, § 230.
In the Federal Hague Convention action, after trial, we successfully prevailed on the husband’s Hague Convention claims, and the US Magistrate directed that the parties’ three children be returned to their Italian home and country of origin, based on the parties’ last expressed joint intent, and the rules enunciated in US v. Gitter.
The US District Court adopted the Magistrate’s findings and recommendations, and the U.S. Court of Appeals affirmed. Both the state court and federal decisions have been widely cited as leading case-law authority.
Cummin v. Cummin, 56 A.D.2d 400, 870 N.Y.S.2d 238 (1st Dept. 2008).
We represented the ex-husband in a post-judgment matrimonial proceeding against his ex-wife and a separate fraud action against the ex-wife’s boyfriend. Our client alleged that the ex-wife and boyfriend conspired to fraudulently induce him to make rental reimbursement payments. The lower court granted our motion to consolidate the actions for trial. The First Department affirmed the lower court’s order, which held that the matrimonial action was to be tried by the court and the fraud action was to be tried by a jury. The First Department held that, so long as the fraud action is decided first, the jury would not be unduly influenced by any decision made by the court in the matrimonial action.
Hougie v. Hougie, 261 A.D.2d 261, 689 N.Y.S.2d 490 (1st Dept. 1999).
We represented the wife at the trial and appellate levels. In a landmark decision, the Appellate Division, First Department, affirmed the lower court decision, which held that the career skills of an investment banker, acquired during the marriage, and which resulted in the ability to earn exceptional income, was to be valued and distributed as a marital asset. The court held that such career skills were to be treated no differently than the acquisition of a professional degree or license during the marriage.
Given the case law authority that held that enhanced earnings, generated by reason of a professional degree or license acquired during the marriage, was “property” for equitable distribution purposes in a divorce action, we demonstrated the inherent inequity of applying a rule of law that sought to impose dramatically different results in financially similar cases.
Missett v. Missett, 125 A.D.2d 275, 509 N.Y.S.2d 815 (1st Dept. 1986).
We represented the husband at the trial and appellate levels. The Appellate Division, First Department, affirmed the lower court decision, which granted our client summary judgment, dismissing the wife’s attempt to re-write the parties’ separation agreement in such a way as to entitle her to share in the sale of the husband’s investment partnership interests.
During discovery, we located and produced the 20 year old draft agreements, which substantiated that during the negotiation of the parties’ separation agreement (prepared by other counsel), the wife released her claims to share in the type of assets she sought to lay claim to in her action.
Kaltenbach v. Kaltenbach, 121 A.D.2d 689, 504 N.Y.S.2d 452 (2nd Dept. 1986).
We represented the husband at the trial and appellate levels. The Appellate Division, Second Department, substantially affirmed the trial court decision, after a lengthy equitable distribution trial, awarding the wife of 15 years with 20% of the husband’s business interests, and three years of maintenance, but reversed the trial court, holding that the parties’ joint income tax liabilities be satisfied from marital assets, rather than being the sole responsibility of the husband.
Lobatto v. Lobatto, 109 A.D.2d 697, 487 N.Y.S.2d 326 (1st Dept. 1985).
We represented the wife at the trial and appellate levels. The Appellate Division, First Department, affirmed the lower court decision, holding in one of the first comprehensive opinions following the passage of the Equitable Distribution Law, that equitable distribution mandated a searching inquiry into the parties’ finances throughout the entire 20 year length of the marriage.
The husband was directed to comply with detailed financial discovery of his complex real estate holdings, especially since the husband claimed those assets to be his separate property. The complexity of the case and the husband’s unsubstantiated claims justified a detailed tracing of the husband’s finances.
Parker v. Parker, 163 A.D.3d 405, 81 N.Y.S.3d 22 (1st Dept. 2018).
We represented the former wife in a post-judgment matrimonial proceeding. Our client incurred substantial damages from her former husband’s numerous defaults under their matrimonial settlement agreement. The lower court granted our motion for a money judgment awarding our client compensatory damages, liquidated damages and counsel fees. The First Department affirmed the lower court’s order and further affirmed that our client did not owe a fiduciary duty to her ex-husband.