Representative Matters

Litigation and Appeals Representative Matters

The following are examples of the types of matters our litigation and appeals attorneys handle:

COMMERCIAL LITIGATION

• Defense of a corporation that purchased an $ 18.5 million hotel in Manhattan in a lawsuit commenced by a potential investor which alleged that the corporation tortuously interfered with the investor’s contractual right to acquire the property and aided and abetted a breach of fiduciary duty by another investor who allegedly steered the property to the corporation.  
• Successfully defended an Audi dealer located in Great Neck in a case of first impression before the New York State Supreme Court, Appellate Division, Second Department, under the New York Franchised Motor Vehicle Act (the Dealer Act). Audi of America awarded the Great Neck Audi dealer a new dealership point in Westbury, New York, valued at approximately $20 million.  Audi dealers in Lynbrook and Huntington sued to stop the opening of the new Westbury dealership, alleging, among other things, that the new dealership violated provisions of the Dealer Act.  The New York State Supreme Court, Nassau County Commercial Division, dismissed the claims, which dismissal was then subsequently affirmed by the Appellate Division on appeal.
• Obtained summary judgment for a homeowner against a real estate agent in a real estate commission litigation matter. The agent told the client that someone was willing to purchase the house after failing to reach an agreement with another buyer, but was unable to produce the ready, willing and able buyer to meet with the seller and the other parties involved to discuss the price, and other matters related to the sale. The Court also found that the agent claimed responsibility for failure to close the sale.
• Successfully settled two business and partnership dissolution actions involving two closely held businesses: a specialty market situated on the site of a former gas station and the underlying real estate, equally owned by two partners. A settlement was reached prior to commencement of the trial in which one partner bought the other partner out. The Firm represented the buyer in the transaction.
• Won an appeal on behalf of a construction company in an action involving the issue of the proof necessary to obtain damages in a home improvement construction dispute. The lower court awarded damages to the homeowners who claimed the work was poorly performed and had to hire another contractor, only to have the decision reversed by the Appellate Court, which found that the homeowners failed to establish proof of actual damages.
• Prosecuted a breach of contract claim against affiliated business entities who accepted a letter of intent from the Firm’s client to sell certain pharmaceutical assets to the client and then attempted to sell the same assets to a third party.
• Prosecuted an action on behalf of a municipal client against an insurance company for breach of the contractual duty to defend the client in an underlying tort action.
• Prosecuted an action on behalf of a corporate client for breach of a security services agreement and related claims for tortious interference with contract and prospective business relationships.
• Successfully opposed a plaintiff’s attempt to amend a complaint in a complex international contract dispute concerning the purchase and shipment of confectionary equipment involving European business entities. The Firm’s attorneys represented the business entity being sued in the United States District Court for the Eastern District of New York by the plaintiff, a purchaser based in Switzerland, for, inter alia, breach of contract and breach of the implied covenant of good faith and fair dealing.
• Defended a partner who held interests in various partnerships that developed and owned five low-income, HUD-subsidized apartments in New York City. The partnerships claimed that he breached his fiduciary duty to the other partners by accepting compensation from certain partners in exchange for his tie-breaking vote to sell the partnerships’ assets (the buildings) for $35 million. The Firm also defended prosecution of claims by the same partner against other partners for breach of fiduciary duty in connection with the management of the partnerships’ properties.  After eight days of trial, the cases were settled in the Commercial Division of the Nassau County Supreme Court with, among other things, payment of $1.2 million to the client.
• Defended the North Shore LIJ Health System (now Northwell Health) in opposing a motion for a temporary restraining order and preliminary injunction brought by a physician and various concerned citizen groups seeking to enjoin the System from relocating a large orthopedic surgery group at Glen Cove Hospital to another hospital in the System.  After the Commercial Division of the Nassau County Supreme Court denied the requested injunctive relief, the medical group relocated to another hospital, and the case was settled.
• Represented an investment fund in connection with several litigations, including in state and federal court arising from the fund's investment of $14 million into the development of a patent license, breaches of fiduciary duty and aiding and abetting breach of fiduciary duty against the directors and officers.
• Prosecuted a fraud claim against the operator of a $25 million real-estate-investment Ponzi scheme.  The Commercial Division of the Nassau County Supreme Court granted summary judgment to the client based on the operator’s spoliation of key evidence.  After a contested inquest trial, a $2.1 million judgment was obtained in favor of the client.
• Defended judgment debtor's spouse in an action by judgment creditor to compel the sale of the judgment debtor's interest in the family residence.  The Appellate Division reversed and granted a protective order conditioning the sale o the purchaser becoming a tenant in common with the judgment debtor's spouse with no right to possession, use, and occupancy of the subject property since the judgment debtor's spouse and her family resided at the property.

REAL ESTATE LITIGATION

• Obtained summary judgment on behalf of a client in a case involving a 36-acre parcel of land in Old Brookville owned by a Delaware LLC that was controlled by two cousins. The cousins entered into an operating agreement to partition the property, subject to them agreeing on the location of a final partitioning line.  Later on, they were unable to agree on where the final partitioning line should be located because they disagreed where to place an access road on the property. One cousin then sued the other for breach of contract seeking to compel a partitioning. The Firm, representing the defendant cousin, argued the operating agreement’s partitioning provision was an unenforceable agreement-to-agree because it omitted a material term, the final agreed upon location of the partitioning line, and there was no objective methodology or formula that the parties agreed upon that the Court could turn to supply the missing term. The Court agreed and dismissed the lawsuit.
• Successfully defended the developer of three (3) luxury homes in an action commenced by an adjoining golf club to enjoin the construction of the homes because they were allegedly being constructed in violation of restrictive covenants imposed on the properties.  The court denied the golf club’s motion for a preliminary injunction, which allowed construction of the homes to proceed unimpeded.  The parties thereafter negotiated a settlement of the case.
• Successfully defended a developer of a $100 million, 289-bed nursing home facility in Woodmere. Neighboring commercial property owners sought a preliminary injunction enjoining the project on the ground that it threatened the structural integrity of their buildings.  After conducting an evidentiary hearing, the Nassau County Supreme Court’s Commercial Division denied the preliminary injunction, thereby allowing the project to proceed to completion on schedule.
• Won a summary judgment on behalf of a local golf club to have a claim filed by two local residents dismissed. The residents claimed that a parcel of land that abutted the golf course belonged to them because of the improvements they made to the property and that the golf club tried to block their access to the property by making their own enhancements.
• Represented a real estate appraiser who was sued for, inter alia, fraudulent misrepresentation. In obtaining summary judgment for the Firm’s client, the court held that, in a real estate transaction, a buyer is required to conduct his own due diligence by the exercise of ordinary intelligence to discover the true nature of the transaction.
• Defended a commercial landlord in a breach of lease claim brought by its tenant, and simultaneously prosecuted a breach of lease claim against the tenant, which sought to assign a lease to another tenant at its 136,000-square-foot manufacturing facility.  The landlord’s refusal to consent to the assignment was reasonable as a matter of law and dismissed all of the tenant’s claims.  On the eve of trial of the landlord’s claims, the case was settled with, among other things, payment of $7 million to the landlord, including $450,000 in legal fees.
• Prosecuted a claim to enforce client's express, implied, and prescriptive easement rights.  The client owned a land-locked commercial building.  Access and utility service to the building is obtained over adjoining land which was in the process of being redeveloped with a $50 million mixed-use, multi-family residential and retail development project.  The developer fenced off the client's property, thereby denying the client vehicular access to certain parking areas on the adjoining land, and the developer also threatened to cut off utility service.  The court issued a temporary restraining order and preliminary injunction requiring the developer to open the gates to the fences and allow the client to access and park vehicles on certain portions of the adjoining land, and enjoining the developer from cutting off utility service to the client's building.
• Defended a municipality accused of improperly extinguishing a tax lien on real property in connection with its condemnation of the property.  A municipality condemned a parcel of commercial property in connection with a downtown revitalization plan.  The municipality failed to give notice of the condemnation proceeding to the private holder of a tax lien on the property, and, as a result, the tax lien holder did not appear in the proceeding and file a claim to a portion of the condemnation proceeds.  The trial court denied the motion because the claim sounded in tort and the claimant had failed to file a timely notice of claim under General Municipal Law § 50-e.  The Appellate Division, Second Department, affirmed the trial court's ruling. 
• Prosecuted a civil rights claim on behalf of client whose two-family home was taken from by a municipality for nonpayment of real estate taxes. 
• Prosecuted an action on behalf of the Long Island Railroad to eject a business and its equipment from LIRR land adjacent to the LIRR's main line branch to New York City.  After the LIRR moved for a preliminary injunction because the equipment was causing a dangerous condition that threatened the main commuter line, the case was settled with the defendant removing itself and the equipment from the property.
• Defended property owners in separate actions to foreclose a mechanic's lien.  After initial litigation, discovery, and motion practice, both cases were resolved through negotiated settlements.
• Prosecuted a private environmental clean-up action on behalf of a commercial property owner.  A discharge at a gas station adjacent to the client's property had contaminated the client's property.  An action was commenced against the owner of the gas station under, among other things, the New York State Navigation Law.  The court granted a judgment after trial against the gas station owner, who was ordered to pay damages to the Firm’s client for cleanup costs, environmental consulting fees and legal fees incurred by the client.  On appeal, the judgment on liability was affirmed, but the case was remanded for a new trial on the cost of cleaning up the property.  The case was settled on remand.
• Defended a borrower in an action to foreclose a $19,125,000 mortgage lien on the client's office building.  After extensive litigation, the case was settled with the client providing a deed in lieu of foreclosure.
• Defended a mezzanine lender in a foreclosure action commenced by a senior lender to foreclose on $18 million in senior mortgages on a condominium-development project.  The mezzanine lender asserted claims against the senior lender for breach of a subordination and intercreditor agreement and equitable subordination.  The case reached a negotiated settlement after extensive litigation. 
• Defended the Long Island Rail Road in an action arising out of the LIRR's termination of a license agreement on the grounds that the licensee illegally removed and disposed of asbestos-laden material at the license location. The case was settled after mediation shortly before commencement of the trial.
• Prosecuted trespass, loss of lateral support, and property damage claims on behalf of a business owner in connection with the construction of a four-story office building and two-story, below-grade parking garage on a neighboring site.  The case involved subterranean trespass issues, nuisance, loss of lateral support, and negligence claims and counterclaims.  The court dismissed all counterclaims against the client.  The case was settled on the eve of trial, with the payment of $600,000 in damages to our client. 
• Defended the Metropolitan Transportation Authority in an action commenced by a tenant for fraud and breach of lease.  The tenant alleged that the MTA did not lease all of the square footage set forth in the lease and sought to recover approximately $500,000 in damages.  The case was settled after extensive motion practice and an appeal to the Appellate Division.
• Prosecuted a $1.2 million commercial mortgage foreclosure action on behalf of a client to foreclose on commercially zoned waterfront property located on Sheepshead Bay, Brooklyn, New York.  After judgment of foreclosure and sale was granted, the defendant filed for bankruptcy.  The Firm continued to represent the client in the bankruptcy proceeding as special zoning and real-estate counsel.  The client ultimately acquired the property in the bankruptcy proceeding for the value of the mortgage lien.
• Prosecuted a commercial mortgage foreclosure action that became subsumed within a federal civil forfeiture action regarding the subject property.  The client held a $1 million purchase money mortgage on a commercial building in Nassau County that went into forfeiture when the owner was indicted by a federal grand jury for illegally selling prescription drugs from the building.  After months of negotiation and the commencement of a mortgage foreclosure action that was ultimately removed to the United States District Court for the Eastern District of New York, the United States entered into a settlement agreement with the client, in which the government recognized the validity and priority of the client’s mortgage and agreed to promptly sell the building to satisfy the outstanding balance owed on the mortgage (including principal, interest and the client’s attorney’s fees).  The building was ultimately sold at a public auction, and the client was made whole from the sale.
• Prosecuted an action to extinguish an express easement over a client's property that was imposed on the property by a prior corporate owner of the property.  The issue in the case was whether the individuals who signed the easement instrument on behalf of the corporate grantor had the authority to sign the instrument on behalf of the corporation.  After extensive litigation and motion practice, the case was settled with the extinguishment of the easement over the client’s property.
• Defended a contract-vendee in contract to purchase a $3.75 million school and camp property in Suffolk County, New York, in a suit brought by a tenant on the property claiming to hold a right of first refusal to acquire the property.  The court dismissed the tenant's claims, which dismissal was affirmed by the Appellate Division, Second Department, allowing the client to close on the purchase of the property.
• Prosecuted a motion to vacate a foreclosure sale of a client’s $1 million residence for failure to pay common charges to a homeowner’s association.  The client failed to pay the common charges and answer the complaint in the foreclosure action because she was caring for her seriously ill husband who, just weeks before the commencement of the action, had been diagnosed with a terminal illness, and who passed away while the foreclosure action was pending.  The home was sold for $326,000 at a foreclosure sale, and the purchaser told the client to leave. When the attorney and the homeowner’s association refused to consent to vacate the sale, a motion to set aside the sale was interposed.  During its investigation, the Firm determined she was not properly served with process and the purchaser was a business entity owned and operated by an attorney representing the homeowner’s association. The Suffolk County Supreme Court granted the motion and voided the sale, finding that it was based on bad faith and unconscionable conduct.  Title to the residence was thereafter restored to the client.
• Defended a hotel owner in a fraudulent conveyance action in which the plaintiff sought to divest the client from title to an $8 million hotel in Sheepshead Bay, Brooklyn, on the grounds that the client allegedly acquired title to the property via a series of fraudulent conveyances from the seller.  After discovery and motion practice, the parties agreed to federal court mediation and the case ended in a negotiated settlement in which the client contributed $80,000 towards the settlement.
• Prosecuted an action to enjoin a neighboring property owner from using an express access easement over the client's property on the basis that the neighboring property owner was abusing the easement by creating nuisance/dangerous conditions on the client's property.  After discovery, the case settled with the extinguishment of the easement over the client's property.

ZONING AND LAND USE LITIGATION

• Successfully represented two developers against the Village of Rockville Centre, which imposed a building moratorium on a project which, the village claimed, consisted of the construction of a “private road.” A Nassau County Supreme Court judge struck down the moratorium, claiming it unjustly targeted the applicants and was issued in response to community opposition to the project.
• Successfully defended the City of Glen Cove in two lawsuits filed by residents who challenged the city’s approval of a 176-unit condominium complex. The Plaintiffs claimed the city failed to properly identify and analyze the environmental impacts of the land-use determinations under SEQRA. The court dismissed both lawsuits, ruling that the City fully complied with SEQRA.  A temporary restraining order on the project was also vacated, allowing the project to move forward.
• Defense of a 126 unit, residential, water front condominium complex in an Article 78 proceeding in which the owner of neighboring land sought to annul a determination by a municipal zoning board which revoked the landowner’s building permit to construct a ten story residential tower on the neighboring land based on a petition brought by the client challenging the validity of the building permit. 
• Successfully appealed a decision on behalf of a restaurant which was denied a request to annul a five-year durational limit the Town’s Board of Zoning and Appeals placed on its parking lot that extends into the Town’s Residence District. The Appellate Court ruled the ZBA did not have the authority to impose the durational limit on the parking lot because the town code does not confer any such power to limit the life of the approval.
• Obtained a reversal of a decision the Town of Hempstead Board of Appeals made against the Firm’s client, a property owner who sought a variance to maintain a two-family dwelling on a 10,000-square-foot parcel within the Town’s Business District. The Firm argued there was no evidence to suggest the size of the parcel in question was not adequate for two-family use and the deficiency in the size of the lot would cause harm to the surrounding neighborhood, and the Nassau County Supreme Court vacated the Board’s decision.
• Prosecuted an appeal on behalf of an owner and operator of a private, 2.1-mile, closed-loop motorcycle track located on a 134-acre, FAA-licensed airport in upstate New York.  The appeal was from a judgment issued in a hybrid Article 78 proceeding/plenary action by the New York State Supreme Court, Delaware County, which judgment severely limited the use of the track based on conditions allegedly contained in a municipal site plan approval.  The Appellate Division, Third Department, reversed the judgment on the ground that the trial court erred by summarily granting judgment to the petitioners on the cause of action for a determination on which uses were lawful uses under the site plan approval.  The issue was remanded to the trial court for further proceedings. 
• Successfully represented a local beach club against two local residents who claimed the zoning variances granted to the establishment would result in injury, or damage, to their property due to traffic congestion or overcrowding.
• Successfully represented a commercial property owner in an Article 78 proceeding in New York State Supreme Court against the Town of Hempstead’s Zoning Board of Appeals. The court overturned the Board’s decision to impose a five-year durational time limit on a special use permit for a Uniondale laundromat. The court held that the zoning board lacked the authority to impose a time limit on the life of the special permit. This decision marked a significant victory for business property rights.
• Prosecuted a civil rights claim against a municipality that condemned the client's building and forced the client to shut down her business — a family-run kennel that has been in operation for nearly 100 years.  The municipality condemned the building on the grounds that it was allegedly an unsafe structure under the New York State Fire Code.  The client was forced to close her business.  An action was commenced against the local municipality for, among other things, violating the client's procedural and substantive due process rights protected under the Fourteenth Amendment by condemning the building without first providing the client with a pre-deprivation due process hearing.  The court issued a temporary restraining order and preliminary injunction enjoining the municipality from enforcing the condemnation order against our client, which enabled the client to reopen and stay open for business during the pendency of the condemnation order and action. 
• Represented a property owner in an appeal of a zoning board of appeals determinations set forth in a criminal summons returnable in a local criminal court.  The zoning board of appeals dismissed the appeal on the ground that it did not have jurisdiction to hear an appeal from a determination set forth in a criminal summons returnable in court.  The New York State Supreme Court, Nassau County, upheld the zoning board's determination.  The New York State Supreme Court, Appellate Division, Second Department, reversed, finding that the zoning board had jurisdiction to hear the appeal.  This was a case of first impression in New York.  On remand to the zoning board, the client was granted variances to maintain his building and the criminal summons was dismissed.
• Assisted litigation counsel with the defense of a municipality in a civil-rights action arising from the municipality's adoption of a local zoning law regulating places of worship and its review and conditional approval of a religious cemetery in the municipality under that local law.  Following the municipality's conditional approval of the cemetery, the property owner, a religious corporation, sued the municipality alleging that its local zoning law and its conditional approval of the cemetery violated the property owner's rights under the Free Exercise Clause of the First Amendment; the Due Process and Equal Protection Clauses of the Fourteenth Amendment; and the Substantial Burden and Equal Terms provisions of the federal Religious Land Use and Institutionalized Persons Act.
• Prosecuted an Article 78 proceeding against a Village which failed to follow SEQRA requirements when it rezoned the client’s 25,000-square-foot commercial building from industrial to residential zoning.  The Nassau County Supreme Court annulled the rezoning, finding that the Village had failed to take the requisite “hard look” at the environmental impacts of the rezoning under SEQRA.  The decision was affirmed by the Appellate Division, Second Department.  The New York State Court of Appeals denied the municipality's request for permission to appeal the ruling further.  The court victory reinstated the industrial zoning and the client was able to sell the building for $6 million.  The new owner redeveloped the property for commercial purposes.
• Prosecuted an Article 78 proceeding against a zoning board of appeals that denied variances to a client seeking approval to construct a residential dwelling on her waterfront property.  The variances were necessary to respect tidal wetlands setbacks on her property.  The New York State Supreme Court, Nassau County, upheld the denial.  On appeal, the New York State Supreme Court, Appellate Division, Second Department, ruled in favor of the client, reversed the trial court's judgment, and ordered the local zoning board of appeals to grant substantial variances to the client so her development project could proceed.

CIVIL RIGHTS LITIGATION

• Represented a volunteer firefighter in state and federal court actions in which the firefighter alleged that his procedural due process rights were violated in a connection with his dismissal from the fire department.
• Represented commercial property owner in a state court action against a municipality in which the commercial property owner alleged that the municipality wrongfully condemned the building out of which the business operated in violation of the commercial property owner’s procedural due process rights.  Obtained preliminary injunction enjoining the municipality from enforcing its condemnation order. 
• Commenced a federal action against a municipality for violating a residential property owner’s procedural due process rights in connection with its taking of the residential property for nonpayment of real property taxes.  Case settled with transfer of the property back to the client. 
• Representation of commercial property owners in state court actions alleging violations of procedural due process in connection with the taking of their properties for nonpayment of real estate taxes.

LABOR & EMPLOYMENT LITIGATION

• Participated with a legal team that obtained a federal jury verdict of more than $14 million in damages for five Indian national workers against a marine and fabrication company, an attorney and an India-based recruiter. The Indian national workers claimed that the defendants engaged in human trafficking, forced labor, racketeering and civil rights violations against them because of their nationality.
• Won dismissal in a complex employment and labor case for three separate companies operating under a trade name in the commercial kitchen cleaning and repair business. The Firm represented the businesses being sued in a Manhattan federal court by former industrial cleaning employees for, inter alia, violations of the Fair Labor Standards Act, New York Labor Law and unjust enrichment for alleged nonpayment of overtime wages.
• Defendeda regional franchisee of a national restaurant/entertainment chain in a putative class and collective action commenced in the United States District Court for the Eastern District of New York by present and past employees to collect alleged unpaid wages under federal and state labor laws.  The case was moved to arbitration and settled shortly thereafter.
• Defended a national church in connection with a series of lawsuits that arose out of the church’s termination of one of its officers for various alleged financial improprieties.  The case, which involved the intricacies of the internal governance of the church, ended in a negotiated settlement.

OTHER LITIGATION MATTERS

• Successfully represented a former member of the Order of the Sons of Italy in America Lodge, who sought to protect the Lodge’s assets by forming a not-for-profit corporation. The two members — who are now deceased — incorporated the Lodge with the client, but did so as a for-profit entity. This meant the profits from the sales proceeds could be retained by the members, but that did not fall in line with the Lodge’s mission. When the client was denied access to the Lodge’s meeting minutes and financial statements because he was no longer a Lodge member, the Firm filed a declaratory judgment requesting that, as “the last living incorporator,” he be allowed to call a special meeting to convert the entity into a non-profit corporation. The court ordered that a special meeting be held to adopt by-laws and elect directors to the corporation. The court also granted the Firm’s motion to amend the decision so that the officers either transfer the assets to a duly formed non-profit organization or re-charter the corporation as a not-for-profit entity.