This section includes the summaries of significant reported decisions achieved by our firm’s attorneys.
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.
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 conveniens grounds, finding that Russia provided an adequate alternative forum to determine the infringement claims. On appeal, the Court of Appeals, Second Circuit, affirmed the dismissals.
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.
The Internal Revenue Service sued our clients to recover tax refunds. The taxpayers owned two S corporations that became insolvent and had debts discharged after the corporations’ properties had been foreclosed upon. We argued that under the applicable tax statutes, the discharge of debt increased the basis of the S corporation stock, resulting in losses that had been previously suspended. We contended that recognition of these losses reduced the taxpayers’ tax liabilities over a number of years, entitling them to the refunds.
Both parties filed summary judgment motions before the District Court, and the Court held for the IRS. On our appeal, the Third Circuit reversed the District Court and held for our clients. This issue had been split among various Circuit Courts of Appeals until the United States Supreme Court decision in Gitlitz v. Commissioner, 531 U.S. 206 (2001). In Gitlitz, the Supreme Court found in favor of the taxpayers, citing the Third Circuit decision in United States v. Farley.
Valley National Bank v. Deutsch, 88 A.D.3d 691, 930 N.Y.S.2d 477 (2nd Dept. 2011).
We represented the lender in a commercial foreclosure proceeding. The lower court granted our motion for summary judgment and to appoint a referee. On appeal, the Appellate Division affirmed the order and rejected the defendants’ defense based on their alleged inability to read or understand the English language and the loan documents signed by them.
Nachem v. Property Markets Group, Inc., 82 A.D.3d 573, 918 N.Y.S.2d 490 (1st 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.
We represented a commercial mortgage lender in two related lawsuits, wherein our client sought to foreclose on the property. In the Nassau County action, we were successful in securing the dismissal of fraud claims brought by a related party and subsequent transferee. We were then able to secure summary judgment in our client’s favor in the foreclosure proceeding in New York County.
In re Bushnell, 271 B.R. 54 (Bankr. D.Vt. 2001), appeal dismissed, 273 B.R. 359 (Bankr. D.Vt. 2001).
We represented the debtor, as Special Counsel, in a Vermont bankruptcy proceeding. We challenged more than $165,000,000 in claims asserted by limited partner investors who charged the debtor with violating the Racketeer Influenced and Corrupt Organizations Act (“RICO”) 18 U.S.C. §§ 1961-68. In 2001, after enduring a complicated procedural history, which included our victory in the Bankruptcy Court in 1996 wherein the Bankruptcy Court granted our motion to dismiss the RICO claims on statute of limitations grounds, the reversal of that victory by the United States District Court for the District of Vermont, and our successful defense of RICO claimants’ motion to lift the automatic stay and pursue the debtor in their District Court action pending in New York against other defendants. We moved again for summary judgment on statute of limitation grounds.
The Bankruptcy Court granted our motion for summary judgment and dismissed the RICO claims, agreeing with us that under the recent United States Supreme Court decision in Rotella v. Wood, 528 U.S. 549, 120 S.Ct. 1075, 145 L.Ed.2d 1047 (2000), the claims were time-barred. The Bankruptcy Court rejected the RICO claimants’ contention that our client was equitably estopped from asserting the limitations defense. The Bankruptcy Court agreed with us that the RICO claimants could not establish equitable tolling since, as a matter of law, they could not impute to our client the acts of fraudulent concealment allegedly engaged in by his partners. The RICO claimants appealed the decision. The Bankruptcy Court subsequently granted our motion to dismiss the appeal on the ground that the notice of appeal was not timely filed.
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.
The Universal Church v. Robert L. Geltzer,463 F.3d 218 (2nd Cir. 2006), cert. denied, 127 S.Ct. 961 (2007).
We represented a church in litigation involving novel issues under the Religious Liberty and Charitable Donation Protection Act, and the power of a Bankruptcy Chapter 7 trustee to void charitable contributions made by a debtor to her church. We prevailed before the Bankruptcy Court, which ruled that in determining the applicability of the Act’s safe harbor provisions, which protect charitable contributions from a trustee’s avoidance powers, only a debtor’s separate contributions in excess of fifteen percent of gross income may be avoided.
The District Court and Second Circuit disagreed, finding that the Act permitted the trustee to aggregate the contributions in a single year to determine if the contributions exceeded the fifteen percent of gross income threshold. However, we prevailed on the appeal to the extent that the Second Circuit held that the trustee had failed to establish the debtor’s insolvency at the times of the various contributions and that issues of fact needed to be resolved concerning the church’s other safe harbor defense as to whether the contributions were consistent with the debtor’s giving practices.
Williams v. United States of America, 181 B.R. 1 (Bankr., D.R.I. 1995), modified, 188 B.R. 721 (Bankr., D.R.I. 1995), aff’d as modified, 215 B.R. 289 (D.R.I. 1997), appeal dismissed, 156 F.3d 86 (1st Cir. 1998), cert. denied, 525 U.S. 1123, 142 L.Ed.2d 904, 119 S.Ct. 905 (1999).
We represented the debtor as Special Tax Counsel in a Rhode Island bankruptcy proceeding, challenging $6,500,000 of tax claims filed by the IRS. We vigorously pursued discovery and believed the Government had withheld vital documents. We prosecuted a motion to preclude and for sanctions, which resulted in a three-day trial. After trial, the Bankruptcy Court granted our motion and sanctioned the Government, requiring it to pay the debtor’s legal fees. The Court found that the IRS’ “willfulness is as plain as it can be” and that its actions “were specifically calculated to impede plaintiff’s attempts to obtain discovery material to which it was clearly entitled.”
Regatta Condominium Association v. Village of Mamaroneck, 303 A.D.2d 739, 758 N.Y.S.2d 102 (2nd Dept. 2003).
In a construction dispute, we represented an owner’s representative in a lawsuit brought by a condominium association alleging construction defects. On appeal, the Appellate Division dismissed the complaint against our client. The appellate court held that the condominium association was not a third-party beneficiary of our client’s contract with the owner.
Hudson v. City of New York, 267 A.D.2d 351, 700 N.Y.S.2d 67 (2nd Dep’t 1999).
We represented the administratrix of the estate of decedent, who died of asthma while incarcerated at Rikers Island. We sued the City of New York for wrongful death. Over a period of three years, the City failed to produce the decedent’s incarceration records, despite our discovery demands and two court orders compelling such disclosure. We moved to strike the City’s answer and for a default against the City. The lower court denied the motion, and instead precluded the City from calling witnesses to testify to any matter regarding the decedent, outside of the medical records the City had produced.
We appealed, believing that the relief was not sufficient, and that the answer should have been stricken. The Appellate Division, Second Department, agreed and reversed the lower court, holding that the City’s conduct was “willful and contumacious” and that the lower court had “improvidently exercised its discretion” in denying our motion to strike the answer. The matter was remanded for an inquest on the issue of damages.
Beaver Street Associates v. Lady Liberty Tavern Corp., 94 B.R. 812 (S.D.N.Y. 1988).
Mr. Chinitz, in bankruptcy and appellate proceedings, prevailed in a case presenting an issue of first impression. The District Court reversed the Bankruptcy Court and held that a debtor’s interest in a commercial lease had been properly terminated prior to the bankruptcy by the New York City Civil Court’s Final Judgment of Possession, and that the landlord was entitled to evict the debtor from the space.
In re Heritage Equity & Realty LLC, Chapter 11 Case No. 12-46807 (Bankr., E.D.N.Y.)
In Re 552 W 24th LLC, Chapter 11 Case No. 1-11-43231 (Bankr., E.D.N.Y.)
In re Delta Holdings LLC, Chapter 11 Case No. 10-22936 (Bankr., S.D.N.Y.)
In commercial foreclosure proceedings, it is common for the borrower, or some other party claiming an interest in the real property, to file a bankruptcy petition on the eve of the foreclosure sale. A bankruptcy filing automatically triggers the “automatic stay” under the Bankruptcy Code, 11 U.S.C. § 362(a), staying the foreclosure sale. Even if the lender subsequently obtains an order from the Bankruptcy Court vacating the stay, another bankruptcy filing by the borrower or another party may stay a subsequent foreclosure sale, further delaying the foreclosure process for substantial periods of time, at significant expense to the lender.
In the above bankruptcy cases, where we represented the lenders, we were successful in obtaining in rem relief, where the Court ordered that a subsequent bankruptcy filing will not trigger a stay of the foreclosure, thus permitting the foreclosure sale to proceed. In this manner, our clients were able to proceed with the foreclosure without enduring further obstructionist tactics from the borrowers.
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.