Accomplishments of Interest
Below we provide the full text of hundreds of decisions won by I&H over the last three decades, each introduced by a brief case synopsis, often with links to press and video. Sometimes we present related decisions as a series, thus telling interesting and complex litigation stories. Many of these decisions established principles of law. All of them achieved superior results for our clients. |
ALM Unlimited v. Donald Trump
(NYS Supreme Court Civil Court, NY County, 5/19/2010)
Our client, ALM Unlimited, Inc. ("ALM") entered into a sole licensing agent agreement with Donald Trump ("Trump") for the production of quality apparel bearing the "Trump" brand (the "Agreement"). ALM, pursuant the Agreement, coordinated a deal between Trump and apparel manufacturer, Phillips-Van Heusen ("PVH"). With specific regard to the PVH deal, the parties modified the Agreement, adjusting the fee schedule, amending the requirements under the Agreement and extending the time period contemplated thereunder ("Modified Agreement"). However, the Modified Agreement was not in the form of a formal writing, and Trump moved to dismiss the action based upon that fact. Our attorneys were able to convince the Court that despite the fact that the Modified Agreement was not reduced to a formal writing, the various emails, invoices and payments between the parties give rise to a viable claim for breach of contract, anticipatory breach of contract, quantum meruit and declaratory judgment.
199 Archer Ave. LLC v. NYC Health & Hospitals Corp.
(NYC Civil Court, NY County, 10/26/2010)
In this action, 166 Archer Ave sought to recover several months rent erroneously withheld by the New York City Health and Hospitals Corporation ("NYC-HHC") for a premises used and occupied for a NYC-HHC medical clinic. NYC-HHC claimed that certain damages to the building were a result of debris build-up on the premises. As a result, NYC-HHC claimed entitlement to a rent reduction and withheld rent. We successfully proved at trial that that the terms of the Lease clearly dictate that it was NYC-HHC responsibility to maintain the premises and remove any debris. Furthermore, the Court found that 166 Archer Ave completed any and all required repairs to the premises. Thus, the Court rendered a decision completely in favor of 166 Archer Ave Co. and against NYC-HHC for the full amounts owed.
Einstein and Boyd v. 357 LLC and the Corcoran Group, etal.
(Supreme Court, NY County, 10/21/2009)
In a decision with significant impact on e-discovery practices in New York State, the State supreme Court has sanctioned The Corcoran Group, a national real estate brokerage, for "willfully" misleading a Brooklyn couple into buying a defective, water-leaking "lemon" apartment - and then failing to protect or produce potentially damaging email evidence when the couple sued. The ruling by Manhattan supreme Court Justice Charles E. Ramos arose out of the discovery stage of a lawsuit in which the purchasers, a married couple with two young children, alleged that Corcoran, the sponsors, developers and others had fraudulently schemed to sell them a "lemon" apartment by concealing that the unit would flood severely with every rainstorm. The family was forced to move out of the apartment after a short time into rented quarters, but remains obligated to make mortgage and condominium payments on the unsalable unit. The case extends the existing standards for the protection of evidence in a lawsuit to electronically stored information for the first time in New York State. This is a landmark case. It establishes for the first time that in New York State, parties in a lawsuit must preserve and protect electronic documents just as if they were on paper. Attorneys and their clients can no longer remain in the 'typewriter era' and ignore the obligation in a lawsuit to avoid the destruction of potentially damaging electronically stored evidence. This case is a victory for computer-era common sense. Justice Ramos imposed sanctions against Corcoran and its attorneys for several violations, including:
- Failing to suspend its routine document deletion and destruction policy when the lawsuit began
- Failure to produce damaging electronically stored information (ESI) even while producing self-serving emails.
- Failure by Corcoran's IT director and counsel to tell brokers involved in the suit to stop deleting emails and other potentially relevant ESI.
Among the emails which the defendants failed to produce, according to the lawsuit, was one revealing that on rainy days, Corcoran would cancel appointments to show the unit to prospective buyers. " ... This court sanctions the Corcoran Defendants by finding that they are deemed to have known of the water infiltration problem and to have willfully misled the Plaintiffs by concealing that condition from them during the sales process," wrote Justice Ramos in a 31 page opinion. In his opinion, Justice Ramos observed that New York State law had not previously addressed the obligation of attorneys and parties to preserve electronic evidence. He said that the failure to observe proper evidence protection procedures, upon the start of litigation, was "grossly negligent." The case involves the 2007 purchase of a ground-level and partially subgrade duplex apartment in a Park Slope condominium by a married couple. Named in the suit with Corcoran were three of its brokers, the developer, sponsors, and vendors and others. The defendants were ordered to pay for the purchasers' legal and other costs. The underlying lawsuit will continue in supreme Court.
Link to You Tube Footage of Flood
Bosco v. Merle
(24 Misc.3d 139(A), Slip Copy, 2009 WL 2254947 (Table) N.Y.sup.App.Term, July 24, 2009)
Landlord served an owner-use nonrenewal notice on Rent Stabilized tenants, bearing the date November 2, 2005. Thereafter, landlord commenced a holdover proceeding, alleging in the petition that landlord had served a nonrenewal notice dated November 11, 2006 and that a copy of such was annexed to the petition. Annexed to the petition was a copy of a nonrenewal notice bearing the typewritten date of November 2, 2005 but altered in ink to read November 2, 2006. I&H represented the tenants and moved to dismiss.
The Appellate Term found that the unexplained alteration of the date on the copy of the notice attached to the petition, when taken together with the misstatement in the petition as to the date, gave rise to an inference of misconduct designed to deceive the court and stated that a "petition tainted by such misconduct will be dismissed."
Barbara Shapiro v. Faith Bowie
(supreme Court, Westchester County, 7/21/2009)
In a case of first impression regarding a gay couple, the Court granted Defendant's motion to dismiss Plaintiff's action for divorce, where the action was predicated upon the parties Vermont Civil Union. The Court found that the parties were not "married," and as such, Plaintiff had no cause of action for divorce.
Chamber Street Holdings, LLC v. RAM Equities, LLC
(supreme Court, NY County, 7/13/2009)
Plaintiff commercial landlord granted summary judgment against Defendant tenant in the amount of $54,434.49 (representing rental arrears, operating expenses, labor and a leasing commission) plus interest, attorney's fees, costs and disbursements. Under the terms of the Lease, the Defendant could elect to exercise its option to renew by delivering to the landlord, at least one year prior to the expiration date, written notice of its intent to do so. In this case, the Defendant gave the Plaintiff just six months written notice of its intention to renew the Lease for an additional five years. The Plaintiff nevertheless did not demand that the Defendant vacate the premises at the end of the Lease term. Rather, the Defendant remained in possession of the premises. Prior to the end of the renewal Lease period, Defendant abandoned the Premises. When Plaintiff sought to recover damages for unpaid rent, re-letting costs, etc., Defendant argued that its late notice of renewal was never effective to create a new five-year term, as it was given with less than one years notice, and was never formally accepted in writing by the landlord. The court found that the fact that the Defendant did not comply with the one year notice provision was of no significance since that notice provision was clearly inserted in the Lease for the benefit of the Plaintiff and could therefore be waived by Plaintiff. Defendant also argued that there was a surrender by operation of law which precluded the Plaintiff from seeking any rent which would have otherwise accrued after it abandoned the premises. Defendant argued that, by its conduct (namely, changing the locks, ceasing rent demands, and attempting to re-let the premises, the Plaintiff indicated its intent to consider the Lease terminated. The Court rejected this argument because the Lease contained a provision which expressly stated that no act done by the landlord shall be deemed an acceptance of surrender and that all agreements to accept a surrender must be in writing. Since there was no such written agreement, the Plaintiff's conduct could not be deemed to constitute an acceptance of Defendant's surrender by operation of law.
Link to Press on this Decision
3 East 54th Street New York, LLC v. Petry Media Corp.
(Civil Court, NY County, 1/30/09)
Commercial tenants who remained in possession of premises subsequent to the termination of lease by landlord, where the landlord accepted rent subsequent to the termination, are not, as they claim, "month to month" tenants pursuant the lease, entitled to a 30 day notice of termination pursuant to Real Property Law § 232-c before they can be removed from the premises. Rather, pursuant to the lease, the acceptance of rent by the petitioner before the termination date resulted in the lease remaining in effect. The tenant was not a month-to-month tenant and the notice in this proceeding was proper.
International Plaza Associates, L.P. v. Michael Lacher
(supreme Court, NY County, 4/14/08)
Corporate veil not allowed to be pierced. Claim of fraud does not contain the essential element of reasonable reliance in the face of written lease that contains an provision requiring any modification to be in writing signed by the landlord. Claim of fraudulent inducement is insufficient as it merely states a claim for breach of contract. Punitive damages are improperly pled in defendant's counterclaim and third party action.
Sakele Brothers, LLC v. Dey Street Enterprises
(Civ. Ct. NY 9/14/07)
Respondent/Tenant's motion to dismiss denied. Respondent argues that the discontinuance of an earlier proceeding was with prejudice, and that the lease provision that Petitioner invoked to commence this holdover proceeding is ambiguous and provides no clear basis for petitioner to commence the proceeding. Respondent's claim that petitioner's discontinuance of prior non-payment proceeding acts as a discontinuance with prejudice pursuant to CPLR 3217(c) is unavailing. The purpose of CPLR 3217(c) is to restrict the use of the discontinuance device as a means of harassment and a source of repetitive litigation. Where it is clear that a party is not attempting to harass, but has a legitimate purpose for a discontinuance, a prior discontinuance by means of notice does not operate as an adjudication on the merits. Here, the record does not support an argument that Petitioner was attempting to harass respondent, but had a legitimate purpose in its prior discontinuance on notice -- that is, Petitioner's anticipation of being paid without going forward with the nonpayment proceeding. Moreover, Petitioner's assertion correct that lease does indeed contain a conditional limitation. Contrary to Respondent's contention that conditional limitations are not favored by law, when a lease between commercial parties contains a conditional limitation for nonpayment of rent, it shall be enforced in the absence of a showing of fraud, overreaching or other unconscionable conduct by the landlord, which Respondent fails to make.
In the Matter of Leslie Brack and Michael Brack
(New York City Loft Board, January 18, 2007)
Tenants' application for reconsideration of a Loft Board order finding abandonment of the subject unit was denied where Tenants defaulted without extraordinary circumstances causing their failure to timely answer. Rather, despite four attempts by the Loft Board to get the Tenants to participate in the abandonment proceeding, no answer was ever filed. Tenants' correspondence demonstrates that they were fully award of the abandonment proceeding. The Board found that, "It appears that [Tenants] chose to gamble repeatedly that they would be able to work out a deal with their landlord before a Loft Board finding of abandonment became a problem for them. They gambled and lost."
Capogrosso v. Reade Broadway Associates
(supreme Court, NY County, 12/11/06)
Following trial on commercial tenant's claims that landlord breached the parties' lease and constructively evicted plaintiff by failing to provide adequate electricity, heat, security and cleaning services, tenant found liable to landlord for $216,075.40 for rent and broker fees, on landlord's counterclaim to recover as damages accelerated rent due under the lease and the damages that allegedly flowed from the breach including legal fees and costs, and matter sent to referee to determine attorneys' fees and costs owing from tenant to landlord. Plaintiff claimed at trial that the electric outlets in the space were inadequate and that the landlord breached its agreement to improve the electrical outlets -- but such was barred by the lease provision which indicates she is not entitled to any setoff or reduction in rent because of the landlord's failure to comply with the covenant to repair the premises, and, in any event, Plaintiff's testimony about this issue was not credible. Plaintiff was a practicing attorney and her allegation seemed doubtful that she and the landlord would enter into an agreement for the landlord to do electrical work without there being some clear written record of that arrangement. Her allegations were also belied by the work letter attached to the lease. Therefore, absent a specific promise by the landlord to enhance the electrical system to accommodate the amount of equipment plaintiff had, no basis existed to conclude that the landlord breached its obligations under the lease in connection with the provision of electrical service. Plaintiff's cause of action for constructive eviction based on the landlord's failure to provide adequate heat and cleaning services could not be maintained because plaintiff did not abandon the premises and continued to use them for their intended purpose until after defendant obtained a judgment awarding it possession. Even after judgment was obtained against her, plaintiff sought and obtained a stay of execution of that judgment of possession and plaintiff remained in the space for over a month paying the landlord use and occupancy. Plaintiff's request to remain in the space even after the eviction, and her request that her subtenants also be allowed to remain for at least a brief period of time, could hardly be reconciled with her claim that the space was virtually unusable as a law office and unfit for business purposes. Moreover, Plaintiff failed to prove any damages -- she did not provide any proof at trial that she turned work away because she was too busy dealing with the landlord, or that-she would have been able to obtain a sufficient number of clients to fill up all the hours that she allegedly spent on her lease related issues. Plaintiff did not provide any proof that a single client refused to come to her firm, or failed to return because of the conditions in her office. She did not call any witnesses to corroborate that her staff refused to work there, which might have affected her income, or to testify that they called in sick because of the conditions, including the alleged cold, in the office. She did not introduce any contemporaneous time records to document how many hours she spent on these matters and it seemed to the Court that her claim that she spent 80 hours writing or contacting the landlord was based on nothing more than a guess. Nor did plaintiff establish the value of any diminution in her leasehold due to the lack of heat and the poor cleaning services. Although the Court accepted plaintiff's testimony that there was not someone regularly providing security or signing people in and out of the building, she did not point to any obligation in the lease for the landlord to provide such services. Her suggestion that the downtown location of this building created an implied obligation to provide security, especially after September 11, was unpersuasive and would, if accepted, extend to every landlord in the area. Because landlord prevailed on its counterclaim for unpaid rent it was entitled to its attorney's fees, costs and disbursements incurred in this proceeding.
30 Broad, LLC v. Charles Lawrence
(12 Misc.3d 1179(A), supreme Court of the State of New York, New York County, July 10, 2006)
Personal guaranty by defendant of lease does not bind him, as he signed the lease on behalf of his company only, and not on his personal behalf. Reformation based on unilateral mistake requires a showing that the parties have reached agreement and, unknown to one party but known to the other (who has misled the first), the subsequent writing does not properly express that agreement. Unilateral mistake involves fraud. The only fraud alleged here is that defendant did not inform plaintiff that the lease, which plaintiff prepared, did not have a place for a guarantor's signature. Defendant's conduct, as alleged here, was not fraudulent. The fraudulent inducement cause of action appears to be based on alternative theories: that defendant made a guaranty or that he did not make a guaranty. Plaintiff alleges that defendant induced plaintiff into leasing the premises to tenant by falsely promising to guaranty the lease. Defendant then made the guaranty, but did not perform it. To state a claim of being fraudulently induced to enter a contract, a plaintiff must allege that the misrepresentation was one of then-present fact, which was extraneous to the contract and involved a duty separate from or in addition to that imposed by the contract. An allegation that defendant lied about his or her intention to perform the contract does not state a cause of action for fraud. It states a cause of action for breach of contract. Plaintiff's pleadings run afoul of all of these principles. Plaintiff alleges no more than that defendant did not intend to perform the guaranty when he made it. Nor does plaintiff state a fraud claim to the extent that it is alleging that defendant did not enter into a guaranty, but that defendant used the promise of entering into a guaranty to induce plaintiff to enter into the lease. An action for fraud will lie if the promisor did not intend to keep his promise when he made it. However, a party may not establish fraudulent intent solely from the non-performance of the future event. The defrauded party must allege specific facts showing that the promisor intended not to honor his obligations at the time the promise was made. The complaint is totally devoid of any such allegations. Neither does equitable or promissory estoppel preclude defendant from invoking the statute of frauds because Defendant's assertion that he would guaranty the lease is not a false representation of a fact, and the alleged injury, the loss of rent, is not unconscionable. Also, contrary to plaintiff's argument, the doctrine of part performance does not apply. An agreement that would otherwise be unenforceable, because of the statute of frauds, may become enforceable if the party seeking enforcement has performed part of the agreement. For part performance to bar the defense of the statute of frauds, plaintiff's actions must be "unequivocally referable" to the agreement alleged. It is not enough that the oral agreement gives significance to plaintiff's actions. Rather, the actions alone must be unintelligible or at least extraordinary, explainable only with reference to the alleged agreement. Plaintiff's lease of the space to tenant is not unequivocally referable to the promised guaranty. Defendant is not estopped from raising the statute of frauds.
Cohen v. Utica First Insurance Company
(436 F.supp.2d 517)
This was a case where we represented the owner of mansion on the North Shore of Long Island whose house burned down about two weeks prior to completion. In the course of suing the general contractor (a case which settled for $2 million dollars) (see Cohen v. Mario Industries), we pursued the insurance company of the painting contractor, which insurance company had denied coverage on the ground that the contractor did not give "timely" notice of the fire to the insurance company. In this decision, the United States District Court, Eastern District of New York, denied the insurance company's motion for summary judgment and ordered the case to trial. After a three day jury trial, the jury came back with a verdict for the home owner after about an hour's deliberation. After the verdict, the insurance company not only agreed to pay the entire amount of the policy, but agreed to pay pre-judgment interest.
Madison Third Building Companies, LLC v. 357 LLC Berkey, etal.
(30 A.D.3d 1146, 817 N.Y.S.2d 228, (1st Dept. 6/6/2006))
Commercial building owner represented by I&H brought action against real estate brokers for tortious interference with contract. The supreme Court, New York County, denied brokers' motion to dismiss, and they appealed. The supreme Court, Appellate Division, held that owner's allegation provided fair notice of the necessary "but for" causation between the alleged negotiations and the lessee's alleged breach of lease. For purposes of commercial building owner's claim for tortious interference with an existing contract, owner's allegation that real estate brokers continued to negotiate to obtain space elsewhere for owner's contract lessee, despite their knowledge that there was a fully executed lease already in existence, was properly understood as alleging not merely that brokers negotiated during the single day between the execution of the lease and the lessee's repudiation, but that they improperly continued the negotiations begun earlier, and therefore the allegation provided fair notice of the necessary "but for" causation between the alleged negotiations and the lessee's alleged breach of lease.
Madison Third Building Companies, LLC v. CB Richard Ellis, Inc.
2006 NY Slip Op 04372 (App Div 1st 2006) June 6, 2006
supreme Court's order denying motion to dismiss in an action for tortious interference with contract unanimously affirmed. Plaintiff commercial building owner's allegation that defendant's real estate brokers continued to negotiate to obtain space elsewhere for plaintiff's contract lessee, despite their knowledge that there was a fully executed lease already in existence provides fair notice of the necessary "but for" causation between the alleged negotiations and the lessee's alleged breach of lease. Defendants' argument rejected that the allegation of negotiations is conclusory, and that any inference of "but for" causation between the alleged negotiations and breach is speculative, in the absence of details showing when, how and by whom the negotiations were conducted. Defendants' assertion that they stopped negotiating for the other space when they learned of the executed lease merely presents an issue of fact to be decided after joinder of issue.
Bedford Gardens Company, LP v. Silka Sure Hecht Jacobowitz
29 A.D.3d 501 (2nd dept. 2006)
The supreme Court erred in denying that branch of the motion of Bedford Gardens, a housing company organized under the Mitchell-Lama Law, which was for summary judgment on its cause of action for ejectment. The last tenant of record of the premises was Gilmore. Pursuant to a Housing Court stipulation of settlement Bedford Gardens agreed to permit the defendant Silka Sure Hecht to occupy the premises with Gilmore. Thereafter, Hecht was listed on annual re-certifications for the premises as Gilmore's "friend." At some point, Gilmore vacated the apartment and the defendant Jacob Jacobowitz moved into the apartment. Thereafter, Bedford Gardens advised the defendants that they could not retain possession of the apartment based on their failure to qualify as remaining family members entitled to succession rights. HPD found that the defendants were not remaining family members of Gilmore entitled to succession rights and issued a certificate of eviction against them. The decision informed the defendants that the only review of the determination was pursuant to CPLR article 78. The defendants did not institute a CPLR article 78 proceeding. Bedford Gardens thereafter sent the defendants a "Notice to Quit Licensee" and commenced this action seeking a judgment of ejectment against the defendants. Bedford Gardens moved for summary judgment on its cause of action for ejectment, the supreme Court denied Bedford Gardens' motion and this appeal was taken. The supreme Court was reversed and summary judgment granted to Bedford Gardens because HPD is vested with exclusive jurisdiction to determine remaining family-member claims in city-aided Mitchell-Lama housing, and its issuance of a certificate of eviction cannot be collaterally attacked in a subsequent action for ejectment. If the defendants felt aggrieved by HPD's determination, their remedy was to challenge that determination in a CPLR Article 78 proceeding - a step they failed to take.
Epstein v. Samaroo
(sup. Ct. NY 5/17/06)
Specific performance granted to purchaser in commercial real estate contract after trial. Purchaser's alleged slight tardiness in obtaining the commitment was irrelevant in the absence of a "time is of the essence" clause in the contract and particularly because the contract had no requirement to give the seller notice of issuance of the commitment. And in any event, the commitment was in fact secured in a timely fashion because the clock should run not from when the contract was signed and handed to the purchaser, but it should run from the time it was received in the mail by the purchaser's attorney. And finally, seller loses because the election by the seller to declare the contract void did not occur until after the issuance of the commitment, thus the notice to declare the contract void has no effect.
Epstein v. Samaroo
(supreme Court of the State of New York, Kings County, June 22, 2007)
In this action for specific performance of a contract fro the sale of real property plaintiff-buyer's motion to enforce a judgment which ordered the defendant-seller, to complete the contract of sale and convey her interest in the property to the plaintiff-buyer granted. Defendant may not raise an issue as to the purchase price when such price was decided as part of the trial and is now law of the case.
TS Tenant, LLC. v. Insurent Agency Corp.
(Civ. Ct. NY 4/19/06)
Respondent-tenant's motion to dismiss in commercial non-payment proceeding denied, which alleged that landlord did not properly notice tenant because there existed a license agreement between the parties, and therefore a 10 day notice to quit pursuant to RPAPL §713 should have been served, instead of the 30 day notice to terminate a tenancy pursuant to RPL §232. Although the agreement between the parties was entitled "Temporary License Agreement", the agreement incorporated the terms of a Loft Lease Form indicating the intentions of the parties to maintain a landlord and tenant arrangement. Moreover, clearly pursuant to specific language in the agreement itself there was no intention to continue under the Temporary License Agreement upon the agreement's expiration. Furthermore, Respondent remained on the premises subsequent to the agreement's expiration, and Respondent paid rent on a monthly basis, thereby creating a month-to-month tenancy pursuant to RPL §232. Finally, Respondent's possession of the property was exclusive, Petitioner did not have access to the property, which is an element of a landlord and tenant relationship; a license is non-exclusive.
57th Street Day Spa, LLC v. 135 East 57th Street, LLC
(sup. Ct. N.Y. Cty. 12/9/05)
Yellowstone injunction denied and tenant's complaint dismissed. Lease required tenant to give defendant a $200,000 letter of credit as a security deposit; gave landlord the right to draw down on the letter of credit; required tenant to keep the letter of credit funded up to $200,000; required tenant to restore any of its proceeds applied by defendant to the payment of rent; and also gave landlord the right to treat tenant's failure to replenish the letter of credit as a default. Tenant withheld $79,088.97 of its rent based upon a claim that an overpayment. Thereafter, landlord drew down the sum of $63,572.48 and applied same to the payment of rent. A notice to cure was served upon tenant's failure to replenish the letter of credit. The relief prayed for in the complaint included a declaration that tenant was not obligated to pay the security deposit restoration as additional rent. Tenant's obligation to replenish the letter of credit, however, was unqualified. Moreover, an estoppel letter precludes tenant's claim of an overpayment where it acknowledged that it was not entitled to any offsets, abatements or deductions against the rent payable under the lease.
90 William Street Development Group, LLC v. Oshman & Mirisola, LLP, et al.
(Civ. Ct. N.Y. Cty. 11/25/05)
Respondent's objection to the timeliness of a notice to cure based on its contention that petitioner was required under the Court of Appeals case ATM One LLC v. Landaverde to add five days for mailing, was rejected by the court. Landaverde cannot be read to apply to a commercial landlord-tenant proceeding where the lease is absolutely specific as to the service requirements for the notice to cure, to wit: where the lease provides that the notice will be deemed to have been given on the date when it shall have been mailed. Thus, tenant was given more than the full cure period it bargained for when it agreed to the terms of the lease. Also, the notice was served upon the correct party, although such party may have assigned the lease, because Landlord gave no consent to such assignment as required by the lease. Thus Tenant's motion to dismiss was denied.
Vernon Walden, Inc., v. Lipoid Gmbh, et al.
Slip Copy, 2005 WL 3088333 (D.N.J.)
(United States District Court, D. New Jersey, 11/17/05)
This was a breach of contract and Robinson-Patman anti-trust action brought in Federal Court by a former agent I&H's client, Lipoid GmbH and Lipoid USA, LLC. The major threat in this case was the Robinson-Patman anti-trust cause of action because under Section 4 of the Clayton Act, a prevailing plaintiff is entitled to treble damages. In this particular case, the plaintiff's expert sought to establish that it had suffered injuries to the "violation" of the Robinson-Patman Act in the amount of $1,729,191 or, when trebled, $5,187,573. I&H was able to get the expert's testimony excluded because the expert testimony failed to connect the alleged antitrust damage proofs to sales losses directly to price discrimination. The court also excluded the testimony on the ground that the expert improperly relied upon his client's "speculations" as to sales (and profits) that would have occurred in the absence of the alleged violation. The court held that because the foundation of the expert's opinion was "unreliable", the court found that the "opinion itself is unreliable". Once this decision was issued, which foreclosed the possibility of treble damages on the day before the jury trial was scheduled to commence, the case was settled on favorable terms.
Down East Properties, Inc. v. DiMase
(Civ. Ct. N.Y. Cty. 8/15/05)
Summary judgment for landlord in this residential holdover proceeding against a tenant-at-will. The tenant's husband's family owned this luxury apartment. Years earlier, the husband's family had sued to evict both tenant and her husband, and a warrant of eviction was obtained; however, the husband's family never executed the warrant. The tenant and her husband subsequently separated and the husband moved out of the apartment. This case resulted when the estranged husband's family again sued tenant. Tenant attempted to dismiss this proceeding, claiming the prior action by her estranged husband's family was still pending. The court rejected this argument, ruling the prior holdover proceeding was deemed abandoned. Next, tenant's motion for a declaratory judgment denied because the Housing Court lacked jurisdiction to grant such relief. Moreover, tenant was correctly sued as a tenant-at-will because an owner's acquiescence in a continued occupancy where the occupancy is subordinate to the title of owner may justify the inference that a tenancy-at-will has been created. Finally, landlord maintained its burden in establishing the prima facie elements of its petition and tenant did not dispute them, therefore summary judgment for landlord was granted.
Zapin v. CBS Coverage Group, Inc.
(sup. Ct. NY 6/8/05)
Partial summary judgment for Defendants on tortious interference with contract or contractual relations claims, which require elements missing here, to wit: the existence of a valid contract between the plaintiff and a third party, defendant's knowledge of that contract, defendant's intentional procurement of the third party's breach of contract without justification, actual breach and damages. The court held that intentional interference was required, not merely an intrusion that is negligent or incident to some other lawful purpose. Plaintiff attributed Defendant's actions, including her alleged direction to co-defendant to withhold money due to Plaintiff, to a personal animosity that Defendant had toward Plaintiff's principal. But Plaintiff provided no support this accusation. Plaintiff's pleading of prima facie tort was likewise deficient. Plaintiff had advanced no non-speculative basis to believe that additional discovery might yield evidence warranting a different disposition.
Affirmed on appeal:
Zapin v. CBS Coverage Group, Inc.
(26 AD3d 231, 1st Dept. 2006)
Plaintiff brought action against defendant for tortious interference with contract. Defendant filed counterclaims for breach of contract. The supreme Court, New York County, Helen E. Freedman, J., denied plaintiff's motion for partial summary judgment, and granted the defendants' cross motion for summary judgment. Plaintiff appealed. The supreme Court, Appellate Division, held that: (1) genuine issue of fact as to whether defendant continued to perform under contract precluded entry of summary judgment on defendant's breach of contract counterclaims, and (2) there were not sufficient facts in record on summary judgment to establish tortious interference with contract claim. Appellate Division affirmed, holding that genuine issue of fact as to whether defendant continued to perform under contract, even after plaintiff allegedly terminated contract wrongfully, precluded entry of summary judgment on defendant's breach of contract counterclaims. Also, holding that there were not sufficient facts in record on summary judgment, from plaintiff's pleading, or in plaintiff's cursory affidavit, to meet heightened standard of showing that defendant had, individually, acted outside her corporate capacity, maliciously and for personal profit at plaintiff's expense, as required to support tortious interference with contract claim.
Zapin v. CBS Coverage Group, Inc.
(sup. Ct. NY 6/12/2006)
Zapin v. CBS Coverage Group, Inc.
(43 A.D.3d 798, 844 N.Y.S.2d 189, First Dept. September 27, 2007)
Insurance broker brought action against its former administrative and processing agent, and agent's president, alleging that agent had breached its contract to provide administrative and processing services. Defendants counterclaimed for commissions allegedly due, and president also counterclaimed for amounts that she and her prior brokerage entity had expended to settle law suits brought by equipment vendors against both her and broker. The supreme Court, New York County, Helen E. Freedman, J., after a bench trial, awarded broker $48,678 plus interest, and awarded president $35,000. Parties cross-appealed. The supreme Court, Appellate Division, held that: (1) defendants were entitled to a credit for monies the insurance companies had deducted from premiums on account of returned commissions or cancelled policies prior to the effective date of the agency agreement; (2) defendants were entitled to a credit from broker for earned premiums that agent had paid the insurance carrier but never received reimbursement from broker; (3) defendants were not entitled to a credit for certain future accounts receivable; and (4) agent was entitled to prejudgment interest based on broker's breach of contract. Appellate Division affirmed and modified and matter remanded for a determination of prejudgment interest. Appellate Division held that agency and its president were entitled to a credit for monies the insurance companies had deducted from premiums on account of returned commissions or cancelled policies prior to the effective date of the agency agreement. Appellate Division held that agency and its president were entitled to a credit from broker for earned premiums that agent had paid the insurance carrier but for which agent had never received reimbursement from broker. Appellate Division held that agency and president were not entitled to a credit for certain future accounts receivable, where those amounts were not yet paid and no services had been provided for those installments. Appellate Division held that former administrative and processing agent for insurance broker was entitled to prejudgment interest based on broker's breach of parties' contract, where broker failed promptly to sign a commingling agreement, and diverted payments owed to agent to its own account.
Zapin v. CBS Coverage Group, Inc.
(Appellate Division, First Dept. January 22, 2008)
Defendants-appellants-respondents motion for reargument of or, in the alternative, for leave to appeal to the Court of Appeals from the decision and order of this Court entered on September 27, 2007 denied.
Braun Associates, LLC, V. Madison Third Building Companies, LLC
(sup. Ct. NY 5/16/05)
In this action over a substantial broker's fee, plaintiff Broker's motion in limine for an order denying Defendant the right at trial to present to the trier of fact evidence as to the monetary and non-monetary performance of the tenant under the lease is denied. Typically, a tenant's subsequent default had no bearing on the broker's right to collect commission for procuring the lease because commission was earned when the broker produced a tenant who was ready, willing and able to enter into a lease acceptable to the terms of the lessor. But parties to a brokerage agreement may condition payment of commission on the happening of certain other events, such as tenants' actual payment of rent. Defendant argued that it was the "clear understanding of the parties" that a condition precedent to payment of the Broker's commission was the tenant's actual payment of rent. Here, where no written agreement exists and the Broker is pursuing a quantum meruit theory, the parties may submit evidence of conversations, negotiations and agreements made prior to and contemporaneously to the lease for the purpose of determining the intention of the parties as to how commission was to be calculated.
Brocros v. Milling
(Civ. Ct. N.Y. Cty. 3/15/05)
Defendant/Tenant's motion to consolidate this plenary action arising from a landlord-tenant dispute with a summary proceeding pending in Housing Court granted because the two cases arise from the same nucleus of operative facts and share the same witnesses, even where Plaintiff/Landlord claims it will be prejudiced because a summary proceeding pending for two years will be further delayed by consolidation. Moreover, Defendant/Tenant allowed to amend its answer to added causes of action arising out of Landlord's harassment.
82 Thomas Street Realty Corp. v. Robert Harding
(Civ. Ct. N.Y. Cty. 11/18/04)
Summary judgment for Petitioner-Landlord in this Loft case where no triable issue of fact exists because Respondent-Tenant never applied for reconsideration of or appealed a ruling of the Loft Board which determined that the subject premises was de-regulated. The Court must defer to the Loft Board.
145 Park Avenue, L.P. v. IRF/ACORN Group LLC a/k/a RF Furniture Rentals
(supreme Court of the State of New York, July 26, 2004)
In an action by a landlord against a former commercial tenant to collect the balance of unpaid rent due under a written lease which was repudiated by the tenant when it vacated the premises prior to the end of the lease term (allegedly due to business hardship occasioned by 9/11), summary judgment granted to landlord for back rent and attorneys fees, where tenant claimed an oral modification in the lease, but such claim was overcome by a lease clause barring oral modifications.
Madison Third Building Companies v. Fox Hall Realty Law Office, Inc.
(Civ. Ct. N.Y. Cty. 4/6/04)
Subtenant's motion to dismiss for defective service was denied. Respondent-Overtenant was in the business of subleasing office space. Upon the commencement of this action, Landlord served the front desk receptionist of the Overtenant. The front desk receptionist told Landlord's process server that she was authorized to accept service on behalf of the Subtenants. The Court held that the overtenant had a strong incentive to pass the papers along to the subtenants, and since there were no allegations that the papers were in fact never received, service was proper.
Atlantic Westerly v. I.G.M.P. Management Inc.
(Civ. Ct. N.Y. Cty. 3/31/04)
Court granted Respondent's motion for an order dismissing the petition for lack of subject matter jurisdiction based upon landlord's incorrect description of the premises. Landlord described the Premises as store #10 in both the Rent Demand and Petition. In fact, in the lease between the parties, the correct store number is #9. The Court held that an accurate description of the premises is so fundamental to a summary proceeding that a defect will deprive the court of jurisdiction.
82 Thomas St. Realty Corp. v. Skopic
(Civ. Ct. N.Y. Cty. 2/5/04)
Summary judgment denied to tenant in non-primary residence holdover, where, although tenant garners a great deal of sympathy because she is a single mother living within blocks of the site of the World Trade Center disaster, the facts of the tenant's residence in Pennsylvania for approximately sixteen months are almost entirely within the tenant's control and not within the petitioner's control. Also, tenant's defenses stricken, including that the change in the Golub notice window period to 90 - 150 days was unconstitutional.
In re The Cassandra Group & Geltzer, as Trustee v. Guy D'antona
312 B.R. 491 (Bkrtcy.S.D.N.Y., 2004.)
Plaintiff, the trustee in bankruptcy for
an investment advisory services company, brought an
adversary bankruptcy proceeding against our client, the
attorney-in-fact for an overseas corporation from whom the
debtor had rented an apartment. Plaintiff sought to avoid
several transfers, claiming actual and constructive
fraudulent transfer, and sought to recover the value of the
transactions from the attorney-in-fact. The transfers in
question were the collection and deposit of rents for the
apartment leased by the debtor. By virtue of a power of
attorney, the attorney-in-fact managed the apartment,
deposited all rents in his IOLA fiduciary account, and took
his attorney's fees from the same.
The court denied Plaintiff's summary judgment motion, and
granted partial summary judgment to our client, finding that
our client, as an agent of his principal, did not have
"dominion and control" over the transferred funds, and took
no benefit from the transactions he carried out for his
principal, other than the legal fees to which he was
entitled. The attorney-in-fact was found by the court to be
"an innocent conduit of funds," and not fraudulent
transferee with the power to use the funds for his own
purposes. Further, the court found that our client's payment
of his own legal fees from the account in which he deposited
rent for the apartment was on par with a maintenance fee
which the attorney-in-fact, by virtue of the power of
attorney, was empowered to effect.
The Court denied Plaintiff's summary judgment motion because
Plaintiff did not show an absence of fair consideration in
exchange for the rent payments to the attorney-in-fact.
W&W Glass Systems v. Cohen Brothers Realty Corp. et al.
(sup. Ct. N.Y. Cty. 12/12/03)
Defendant building owner and managing agent's motion to dismiss a complaint of a glass contractor granted. The cause of action for breach on contract against the building owner was dismissed because the plain language of the agreement between the parties conditioned payment to the glass contractor-plaintiff on its submission to building owner-defendant of certain documents, including written certification by an architect that the work had been completed, which the contractor never submitted. The cause of action for breach of contract against the managing agent was dismissed because the managing agent was not a party to the contract. The cause of action for unjust enrichment was dismissed because there was a valid contract between the parties, and the existence of a valid and enforceable agreement precludes quasi-contractual recovery. The fourth cause of action to recover under the lien law was dismissed because the notice in question failed to adequately describe the labor supplied pursuant to the agreements between the parties, and the notice also failed to correctly identify the agreed price and value of the labor performed.
Sakele Brothers, LLC v. Pegasus Shipping, Inc.
(Civ. Ct. N.Y. Cty. 12/8/03)
Summary judgment was granted after landlord sought to enforce an acceleration clause under the lease between the parties, when after the September 11, 2001 attacks the tenant abandoned the premises without any notice to the landlord. Tenant claimed solely by an affidavit from the company's president that the space was "completely uninhabitable." The court found that since this assertion was not supported by any concrete description of how and why the space was uninhabitable, nor by any expert evidence, it was insufficient to defeat summary judgment. Further, the court noted that the defendant could not distinguish between the restrictions that were put in place by law enforcement and other public authorities which affected the general public, and acts of the landlord which denied the tenant access to the premises.
Brocros Realty Corp. v. INTV, Inc.
(Civ. Ct. N.Y. Cty. 12/5/03)
Summary judgment for landlord denied where commercial tenant raised a triable issue of fact regarding whether the petition was issued by an authorized officer of the corporate petitioner. Corporate landlord was involved in a separate supreme Court proceeding for the dissolution of its corporation. Tenant asserted that president of the corporate landlord commenced summary proceeding without the authority of the corporation, and the only reason the proceeding was commenced was to drag tenant into an internecine dispute among the shareholders of landlord corporation. Tenant asserted that pursuant to RPAPL § 721, the person claiming to be acting on behalf of the landlord in fact had no authority to do so and therefore has no standing to maintain the proceeding.
Cohen v. Mario Industries
(sup. Ct. Nassau Cty. 9/30/03)
A party cannot use the procedural mechanism of a subpoena duces tecum to expand permissible discovery under existing law. Accordingly, a trial subpoena which constitutes nothing more than a "fishing expedition" and seeks information which could have been requested in the pre-trial phase of the proceeding should be quashed.
Pavia v. Couri -- a Case Study
The following is a series of over a dozen decisions regarding a case where Itkowitz & Harwood represented a private landlord against an outrageously litigious, Rent Stabilized tenant and won. A December 10, 2006 New York Times article that appeared on the front page of the Sunday Business Section said of this case that, "according to New York housing officials, [this case] is one of the nastiest residential wrangles in recent memory." These decisions are extremely instructional in persistent and original litigation tactics. They show how a determined litigant (in this case the landlord) can prevail by persevering in a cause he believes is just.
In this case, the premises was an apartment in a beautiful, restored brownstone on the Upper East Side of Manhattan. The tenant, James C. Couri, had been the tenant of the apartment since 1996 and was found by DHCR to be Rent Stabilized. The landlord, George Pavia, also resided in the building with his family.
Couri was a nightmare tenant. Couri erupted into a paroxysm of vicious harassment against Pavia, which included: over 230 harassing letters to Pavia and his representatives, which include racial slurs, inappropriate sexual comments and all manner of threats; harassing telephone calls to Pavia; a letter writing campaign of unfounded complaints against Pavia to the Bar Association, the IRS, the New York Times, other tenants of the building in which the subject premises is located, Pavia's contractors, the New York State Inspector General, the Police Department, Pavia's wife's apparent employer, and Child Protective Services; excessive noise; the refusal of access for repairs; ugly harassment of Couri's neighbor and Pavia's other tenant that itself included at least 47 letters, replete with inappropriate and bigoted homosexual comments, abusive phone calls, buzzer ringing and lawsuits, which resulted in the other tenant abandoning the building; and harassment of other tenants in the building. The New York Times reported (above) that, "The Pavia-Couri fracas has been marked by frequently barbed language, most often deployed by Mr. Couri in hundreds of letters, phone calls and rants fired off to his landlord, housing agencies, and Mr. Pavia's lawyers."
Couri was a particularly trying adversary because he is a chronic, pathological abuser of the legal process. In an action entitled Couri v. Cristiano, New York supreme Court, in an affirmation of Thomas M. Mullaney, Esq. in support of a motion, annexed was an investigator's report, which stated that an investigation of New York, Kings and Westchester County court records revealed that: Couri has 157 separately indexed cases to which he is a party, in the vast majority of which he is a plaintiff pro-se; that Couri has a long history of making fantastic, unsubstantiated allegations of horrible wrongdoings against his adversaries; that Couri has made a habit of suing opposing counsel; and that he has left behind him a trail of twenty years worth of landlord and tenant disputes, spanning approximately eight different cases. The New York Times reported (above) that, "A reporter's search of a legal database turned up nearly 150 cases in which mr. Couri was named as a party most often as a plaintiff since 1972." Pavia's son conducted an independent investigation and unearthed over 80 such cases by Couri.
Couri's papers in this case were filled with absurd statements about Pavia, a respected member of the Bar in this State for over 50 years and a senior partner of the highly regarded international law firm of Pavia and Harcourt. This firm urged the Court to keep in mind that Couri plead guilty in Federal Court to fraud. As set forth in the case of Drobbin v. Nicolet Instrument Corp. et al., 631 F.supp 860, 868, United States District Judge Haight described Couri, as follows:
"Couri has a checkered past. He has twice pleaded guilty in this Court to charges of fraud. One charge involved securities fraud. The other involved fraudulent statements made to a bank in connection with an art gallery Couri controlled. Couri is the subject of an injunction against securities laws violations obtained by the Securities and Exchange Commission."
Moreover, the case was challenging because there was no precedent for a nuisance case based on the grounds present here. At the outset of this litigation Couri was represented by the highly regarded firm of Rosenberg & Estis. A partner there advised this firm that there was no way Couri would be evicted on the grounds complained of.. no one ever had.
Ultimately, however, this office prevailed in all decisions included below, and Pavia won the case. After the trial of the matter, a judgment for possession of the apartment and a money judgment for back rent were ultimately awarded against Couri.
Link to Full Text of Decisions
Devlin v. Knowles
(Surrogate's Ct. Kings Cty. 9/27/03)
In this Surrogate's Court proceeding to turn over a grant of real property, petitioner's lis pendens was canceled where the summons in the proceeding was not served within 30 days of the filing of the lis pendens. In response to having the lis pendens cancelled, the petitioner moved to enjoin the respondent from selling, mortgaging, assigning, or encumbering the premises. Their motion was denied.
Devlin v. Knowles, Ameriquest, Citibank
(Surrogates Court, Kings County, 2/7/07)
In this miscellaneous proceeding, Petitioner, the Executor of the estate of Mildred Strand, commenced a turnover proceeding to transfer the real property located at 111 East 3rd Street, Brooklyn, New York, which had been partially transferred, prior to her death, to her grandson, David Knowles, on the grounds of undue influence and lack of testamentary capacity. Ameriquest and Citibank were mortgagees on the premises and were named as respondents. The Court found for Respondent Knowles, even though it found that Petitioner proved that Knowles had a confidential relationship with the decedent. The decedent was elderly and infirm; respondent was responsible for all of the decedent's affairs, financial, emotional and physical. There was a substantial change from the will, in that the prior will left the bulk of the estate to the Petitioner and the inter vivos transfer of the main asset of the estate to the Respondent-grandson substantially changed the disposition of the decedent's assets. Petitioner made a prima facie case of undue influence through circumstantial evidence and the burden then shifted to Respondent to explain by clear and convincing evidence why the above listed factors did not lead inescapably to a conclusion of undue influence. Respondent amply met the burden of proving lack of undue influence. Respondent was a godson and a grandchild of the decedent who lived with her for thirty years and who took care of all the decedent's affairs for many years prior to her death. Despite the fact that he recently got married and was difficult for him to do so, Respondent took care of all of decedent's needs, picking up medicine, stocking the house with food, collecting rental income, paying all of her bills, dealing with the home health care agencies, doctors, applying for home care, and visiting her in the hospital. The Court acknowledged that Respondent did an admirable job of taking care of the decedent under tough circumstances. The Court contrasted this action with that of the petitioner, who, when the decedent contacted her that she was in need of help and requested that she take care of her on the weekends, she refused, and who abruptly cut off all relations with the decedent for at least three years until decedent's death. Petitioner's claims regarding the alleged improper acknowledgment of the deed were equally without merit.
Valvo v. Spitale
(305 A.D.2d 668, 761 N.Y.S.2d 236, (2nd Dept. 5/27/2003)
Daughter brought action to impose constructive trust on real property. Mother filed counterclaim for money owed for daughter's use and occupancy of house. The supreme Court, Kings County, Dowd, J., entered judgment in favor of mother, and daughter appealed. The supreme Court, Appellate Division, held that daughter failed to establish entitlement to constructive trust. Appellate Division affirmed. To warrant imposition of constructive trust, plaintiff must plead and prove four essential elements: (1) confidential or fiduciary relationship, (2) promise, express or implied, (3) transfer in reliance thereon, and (4) unjust enrichment caused by breach of promise.
Jin Kwan Choi v. 333 Henry Street Corp.
(sup. Ct. Kings Cty. 5/6/03)
Plaintiff, a tenant with a 10-year lease in a building owned by defendant, failed to comply with the exhaust system requirements of the Administrative Code of New York. Defendant landlord then notified plaintiff that he was in default of the lease and had five days to cure the default. After Notice to Cure expired, defendant elected to terminate plaintiff's lease. In order to enjoin defendants from taking possession of plaintiff's premises or from commencing proceedings to terminate or cancel his leasehold interest and proprietary lease with respect to the premises, plaintiff requested a Yellowstone injunction, but because he waited until two months after the expiration of the Notice to Cure, the court rejected plaintiff's request on the basis of its untimeliness.
Aievoli v. Spitale
(sup. Ct. Kings Cty. 4/28/03)
Court granted defendant's motion for an order dismissing an action and to cancel notice of pendency for failure to timely serve the summons and complaint within 30 days of filing the notice of pendency. Court also granted defendant's motion for an order to dismiss the complaint and cancel notice of pendency on the grounds that the action was barred by collateral estoppel, failed to state a cause of action, and the court lacked personal jurisdiction over the defendant.
Semans v. Kennedy
(Civ. Ct. N.Y. Cty. 8/21/02)
Petitioner landlords commenced summary proceeding against respondent tenants to recover rent arrears. Tenants argued that they were not obligated to pay rent from the initial occupancy date until the time when landlords obtained of certificate of occupancy. Court rejected tenants' argument, ruling that lack of certificate of occupancy was not a barrier to landlord's collection of rent, since delay in issuance of certificate of occupancy was due to bureaucratic complications and to finishing details requested by tenants, and landlords' work on apartment did not threaten the building's structural integrity or the health and safety of tenants. Court ordered tenants to pay rent due.
For press on Itkowitz & Harwood's work on behalf of plaintiffs, click on the link below:
Decorative Center of Houston, L.P. v. Direct Response Publications, Inc.
(S.D.Tex. 6/12/02)
Defendant, a publishing company, had agreed to publish four annual directories of tenants in common trade in commercial building owned by plaintiff. After two years, parties entered into a Termination Agreement and plaintiff paid defendant as consideration for defendant's agreement not to publish the remaining two directories. Defendant then solicited plaintiff's tenants for inclusion in a separate trade directory. Plaintiff filed a claim against defendant, alleging that defendant's solicitation was false advertising and that by soliciting tenants, defendant had breached Termination Agreement. Court ruled that nothing in defendant's solicitation was false and that defendant had disclosed that it was seeking information for its own publication and not for the plaintiff's publication. Court also ruled that defendants could not be said to have broken Termination Agreement because of ambiguity of Agreement.
NAME REDACTED v. Channing
2002 N.Y. Slip Op. 04642, 742 N.Y.S.2d 632 (App. Div. 1st Dept. 6/6/02)
Where landlord sued to evict rent-stabilized tenant for refusing to sign a lease and for using the basement level of his multi-floor apartment as sleeping quarters in violation of the building's certificate of occupancy, no claim for retaliatory eviction will lie based on the theory that landlord was trying to make tenant sign a lease that gave him fewer rights than his 1974 lease when the Appellate Division found that landlord didn't even know there was a 1974 lease and tenant's use of the basement as sleeping quarters was against the law. Tenant couldn't claim the landlord was trying to evict him after tenant sought to enforce his legal rights, and tenant's retaliatory eviction claim was properly dismissed.
NAME REDACTED v. Channing
(sup. Ct. N.Y. Cty. 12/18/02)
Tenant's motion to compel landlord to answer it's many discovery requests (which included both a request for documents as well as a request for responses to multiple questions posed to plaintiff landlord at his deposition which landlord's counsel objected to and directed him not to answer) largely denied - including financial documents and information (such as operating statements, profit and loss statements, subscription agreements, tax returns, K- 1s, and partnership agreements), in connection with landlord's interests/investments in assorted real estate partnerships and a carpet business that have nothing to do with the subject lawsuit. Such financial requests were too far removed from the facts in controversy to be not material or necessary. Neither were landlord's income tax returns discoverable. Moreover, other of tenant's requests were protected by the attorney-client privilege and/or attorney work product exclusion. Finally, tenant's request that landlord be prospectively directed to answer all questions at his continued deposition, except as to privileged matters, was denied.
Blackstone v. Hess
2002 N.Y. Slip Op. 50281(U) (App. Term 1st Dept. 6/3/02)
Respondent-tenant-appellant, an elderly woman who had occupied her rent-stabilized apartment for 35 years, was evicted by landlord on default of one month's rent while vacationing in Florida. The lower court refused to vacate the default and restore tenant to possession, saying the application was brought too late. Appellate Term overruled and found that considering the circumstances and the modest amount of payment default, the court should have granted tenant's motion for vacatur and for restoration to her apartment.
The above decision was affirmed on landlord's motion to appeal. Tenant was restored to her apartment. Here is the Appellate Division's ruling:
Blackstone v. Hess
(App. Div. 1st Dept. 2/6/03)
The following is the most recent development in this case. The court found that as the "prevailing party," the defendant-respondent-tenant is entitled to an award of attorneys' fees.
Blackstone v. Hess
(Civ. Ct. Bronx Cty. 1/30/04)
Hess v. Blackstone
(sup. Ct. Bronx Cty. 3/3/04)
Court granted a 73 year old Plaintiff a special trial preference pursuant to CPLR Section 3403(a)(4) based upon her age.
57th Street Day Spa v. 135 East 57th Street, LLC
(sup. Ct. N.Y. Cty. 3/26/02)
Defendant landlord had mailed to plaintiff tenant a notice to cure based on tenant's default in failing to seek landlord's permission to assign the premises. The court denied tenant's motion for a Yellowstone injunction because tenant did not seek relief until after the time to cure had expired.
Perkins v. Division of Housing and Community Renewal and Orion Realty et al.
(298 AD2d 588, 2nd Dept. 2002)
Filing of an overcharge complaint in 1991, based on the late filing of a 1984 registration statement was untimely. The Rent Regulation Reform Act of 1997 did not deprive Tenant of due process when it imposed a four-year statute of limitations on overcharge complaints.
Lyman, Inc. v. 132 W. 125 Co.
(sup. Ct. N.Y. Cty. 11/1/01)
Defendant commercial landlord successfully moved to dismiss plaintiff tenant's cause of action for offsets or overpayments based on statute of limitations grounds, because the landlord began billing tenant for alleged overcharges more than six years prior to the commencement of the lawsuit, using a computational methodology that remained constant over the years. Also, tenant's cause of action for breach of security deposit agreement to give interest was dismissed on statute of limitations grounds. Moreover, tenant's motion to modify order granting Yellowstone injunction was conditioned on payment of rent currently invoiced to a lower number was denied.
The following is a victory we won when clearing the New York City headquarters of the Directors Guild of America:
Rascoff Zysblat Organization v. Directors Guild of America
(sup. Ct. N.Y. Cty. 5/2/01)
Where landlord had the right to terminate tenant's lease if building is renovated or demolished, etc., and landlord invoked the early termination procedure by giving tenant 180 days notice of termination as was required, court found it to be sufficient that landlord had relied on Construction Manager agreement, based on the theory that hiring a Construction Manager complied with the lease provision allowing for early termination where the evidence clearly demonstrated development of the building and the scope of the project exceeded the requirement in the lease to invoke termination.
The above decision was affirmed upon appeal. Here is the text of the Appellate Division's decision:
Rascoff Zysblat Organization v. Directors
Guild of America
297 A.D.2d 241, 746 N.Y.S.2d 388 (Mem) (App. Div. 1st Dept. 8/22/02)
See the Full Text of Itkowitz Brief as Published by Westlaw at 2002 WL 34354699
285 West Broadway Associates Limited Associates v. Interactive Sports, Inc.
(Civil Court of the City of New York, New York County, April 25, 2001)
Summary judgment dismissing affirmative defenses and counterclaims and awarding Petitioner/Landlord a possessory judgment on its claims for rent, additional rent and attorneys' fees, granted, and Respondent's cross-motion for summary judgment dismissing the Petition is denied. Affirmative defenses and counterclaims dismissed include: lack of jurisdiction due to alleged failure to make a proper rent demand; allegation that Petition seeks stale rent; alleged failure of the Petition to state a cause of action; allegation that the Petition fails to comply with the requirements of RPAPL Section 741, which sets forth the required contents of a Petition in a summary proceeding, in that Petitioner had allegedly not supported the Petition's allegation that Petitioner is the net lessee of the building; allegation that the amount of rent demanded in the Petition is not correct; laches, waiver and/or estoppeI; allegation that the leased premises "are not safe or fit to be used for the purposes for which they were intended to be used"; allegation that the Petition is defective because it was not signed by counsel; allegation of lack of jurisdiction due to improper service of Petitioner's predicate notice; allegation that that Petitioner failed to serve the Respondent-Tenant with the preliminary notices required to be served under the subject lease agreement and therefore the real estate taxes and other additional rent demanded are not due and owing; allegation of lack of jurisdiction due to improper service of the Notice of Petition and Petition; allegation of partial constructive eviction; breach of the covenant of quiet enjoyment; allegation that the value of the premises was reduced by Petitioner's failure to make repairs and provide all services called for under the lease.
Broome Realty Associates v. Esposito
(Civ. Ct. N.Y. Cty. 3/7/01)
Most of tenant's affirmative defenses and counterclaims were struck in this non-primary residence case, including: breach of warranty of habitability, harassment, abuse of process, improper service of the predicate notice of termination. Disclosure was granted to landlord, and tenant was ordered to pay rent during proceeding.
475 Park Ave. So. Co. v. Betelgeuse Productions, Inc.
(Civ. Ct. N.Y. Cty. 3/2/01)
Landlord granted summary judgment in this holdover based upon tenant's failure to replenish its security deposit after landlord drew down on the security for non-payment of rent.
Freeman Foursome v. Cabana Carioca
(sup. Ct. N.Y. Cty. 1/30/01)
Plaintiff, owner of a four-story building in Manhattan, had net-leased the entire building to a corporation, and obtained judgment after trial for rent, additional rent, costs of cleanup and re-letting, payment of violations, expenses connected with obtaining amended certificate of occupancy, and expenses in connection with other obligations undertaken but not carried out by the net lessee. Court also held that when, prior to judgment, principals of corporate tenant repaid a loan to themselves as major shareholders, such transfer was presumptively fraudulent and designed with the intention of hindering plaintiff landlord as a creditor; therefore, plaintiff was allowed to collect against individual defendants as well. Decision affirmed on appeal (293 A.D.2d 964, 741 N.Y.S.2d 146 (App. Div. 1st Dept. 4/30/02)).
Simon & Son Upholstery, Inc. v. 601 West Associates
268 A.D.2d 359 (1st dept. 2000)
Landlord who withdrew elevator service from tenant after purchasing upscale building was directed to reinstate elevator service. Court ruled that prior landlord, who rented to a furniture company, agreed to tenant's utilization of a portion of the space as a photographic studio. Court held that landlord accepted payments from the photo studio, and that "[w]hile no explicit consent can be found it is clear from the course of dealings that landlord consented to the use of the premises as a studio."
Simon & Son Upholstery, Inc. v. 601 West Associates
(sup. Ct. N.Y. Cty. 10/15/01)
Following reversal of the lower court decision denying tenant an injunction requiring landlord to provide elevator services, court then granted tenant summary judgment requiring landlord to provide tenant after-hours elevator service necessary for the conduct of its photographic studio business. Here is that decision:
Simon & Son Upholstery, Inc. v. 601 West Associates
(sup. Ct. N.Y. Cty. 8/27/03)
The most recent decision handed down by the supreme Court preserved the plaintiff tenants' case for punitive damages and allowed plaintiffs to allege a denial of signage. The case has been moved to jury selection for resolution of the third and fourth causes of action for tortious interference. To read the Court's memorandum decision, click on the link below:
European American Bank v. Three Park Ave. Building Co.
(Civ. Ct. N.Y. Cty. 10/3/00)
Defendant had leased premises to third party (not named in suit), which had obtained as security a letter of credit from plaintiff made payable to defendant. When third party defaulted under its lease, defendant drew down the full amount of letter of credit, and plaintiff then commenced action to recover a portion of payment. Court found that while third party may owe money to plaintiff, defendant is under no obligation to turn over any portion of payment to plaintiff, and drawing down of entire amount of letter of credit was valid. Defendant awarded costs and disbursements.
Wented Realty Corp. v. Hisako Oshima Watanabe
(Civ. Ct. N.Y. Cty. 9/7/00)
Landlord won summary judgment and was granted a money judgment in the amount of three times the rent sued for because lease allowed for such damages. Hearing for attorney's fees was also granted. Tenant's argument that it renewed lease was unpersuasive because it did not exercise the renewal option in strict compliance with the lease terms.
622 Building Co. v. Cosi Sandwich Bar
(sup. Ct. N.Y. Cty. 8/21/00)
This case was a dispute about the propriety of the landlord's objection to a proposed sub-tenant, where tenant merged with another entity but failed to give landlord notice of such under lease. Court held that landlord was not subject to arbitration requirement under lease, because landlord shouldn't be forced to arbitrate with a successor to tenant who is present only because tenant breached the lease terms.
Duane Reade, Inc. v. Reade Broadway Associates
710 N.Y.S.2d 566, 7/10/00 N.Y.L.J. 22, (col.5), 28 H.C.R. 456A (App. Div. 1st Dept. 6/6/00)
Under terms of commercial lease, landlord was contractually relieved of liability for delay in delivering leased premises caused by a holdover tenant. Landlord expeditiously commenced a holdover proceeding and promptly entered a stipulation ensuring holdover's vacatur with only a five-month delay, which in all likelihood prevented additional delay arising from completion of holdover proceeding and recovery of possession of premises. The period of approximately five months for landlord to recover possession of commercial realty from holdover tenant was not an unreasonable amount of time while holdover proceeding occurred in Civil Court. (Lease provision requires landlord to take all reasonable steps to assure that tenant would get possession of premises as soon as possible after the expiration of holdover tenant's lease.)
622 Building Company, LLC v. Empire Blue Cross and Blue Shield
(sup. Ct. NY Cty. 12/29/99)
In commercial lease dispute, the plaintiff/landlord's motion for summary judgment and to dismiss defendant's affirmative defenses and counterclaims partially granted where the sole issue before the court was whether landlord improperly denied tenant's request to move out of the building using the freight elevator during business hours. The lease gives plaintiff the right to limit tenant's ability to move out of the building during regular business hours. The right is reserved in the Rules and Regulations appended to the lease. Limitations on the use of the freight elevator are explicitly set forth in writing in the Building Manual. Though tenant asserts that it did not "sign" or "agree to" the Building Manual, that assertion is irrelevant. The landlord reserves the right in the lease to promulgate "reasonable" rules concerning the operation of the building and those rules are binding upon tenants so long as they are communicated in writing. The Building Manual constitutes such a written communication. Tenant's employees' signatures on nearly 80 invoices approving after hours costs associated with the move, and the unrebutted fact that tenant incurred, and paid for, after hours costs during the course of its tenancy prior to initiating its move, are further evidence that the after hours policy was well-known to tenant. Tenant's argument that landlord's alleged breaches of the lease excuses tenant's non-payment of additional rent, ignores the fact that this case involves a lease and the non-payment of rent and a landlord's breach of a covenant in the lease is independent of a tenant's covenant to pay rent and does not exonerate tenant's refusal or failure to pay rent. Moreover, there was no duress against tenant; it is not duress to threaten to take action which is legally permissible. Finally, the no-counterclaim clause in the lease was upheld against tenant.
Broome Realty Associates v. Eng
182 Misc.2d 917, 703 N.Y.S.2d 360 (App. Term 1st Dept. 11/4/99)
Court held that landlord had the right to maintain a surveillance camera situated in the hallway outside of tenant's door in non-primary residence case, and that with the exception of proceedings for the enforcement of housing standards and applications for certain provisional remedies, the New York City Civil Court may not grant injunctive relief.
Betancur, etal. v. The City Of New York
(supreme Court, NY County, October 8, 1999)
In this personal injury action, plaintiffs, EMTs employed by NYC Emergency Medical Services, sought to recover for personal injuries sustained when they were allegedly attacked by NYC Department of Correction officers demonstrating at and blocking access to a bridge leading to Rikers Island. Plaintiffs sought permission to depose the Commissioner of the NYC Department of Correction and the Chief of Department of DOC at the time the incident allegedly occurred. Defendant the City of New York cross-moved for a protective order precluding the depositions. Plaintiff's motion was granted and the depositions were allowed.
Betancur v. City of New York
(sup. Ct. N.Y. Cty. 5/5/03)
In this personal injury action, plaintiffs, EMTs employed by NYC Emergency Medical Services, sought to recover for personal injuries sustained when they were allegedly attacked by NYC Department of Correction officers demonstrating at and blocking access to a bridge leading to Rikers Island. After finding that the defendants assumed a special duty towards the plaintiffs based on such facts as the presence of police officers in riot gear, plaintiffs' emergency response to a distress call to provide medical assistance after two other EMTs were attacked in the Rikers parking lot, and a plaintiff-EMT's request for police backup after that distress call, the court denied the defendant's motion for summary judgment seeking dismissal of the complaint.
*Notwithstanding the fact that this decision was reversed at 11 AD 3d 266, I&H was able to negotiate favorable settlements for 10 out of the 12 plaintiffs, prior to such reversal.
Kantar Investment v. Giacchetto
(Civ. Ct. N.Y. Cty. 7/29/99)
Sub-landlord in coop was granted summary judgment in residential holdover case where subtenant held over after expiration of sublease. Residential tenant's general affirmative defense based on lack of personal jurisdiction was struck because it was not based on any specific factual allegation. Landlord was permitted to amend petition to reflect that petitioner is a foreign corporation licensed to do business in New York. Individual apartment owners of an apartment/loft are not required to register a building as a multiple dwelling, nor plead the multiple dwelling status. A person who sublets a dwelling unit from a purchaser shall not be deemed a non-purchasing tenant.
This case then went to the Appellate Term, which affirmed the above decision. Here is the Appellate Term's ruling:
Kantar Investment v. Giacchetto
(App. Term 1st Dept. 10/5/00)
Appellate Term upheld grant of summary judgment to sub-landlord in coop in residential holdover case where subtenant held over after expiration of sublease. Among other things, the court held that petitioner was not required to attempt personal service at tenant's place of business, located in the same building on a different floor, before resorting to conspicuous place service.
23-76 33rd Street Realty Corp. v. Fatma Ebrahim Hassan
(Civ. Ct. Queens Cty. 12/15/98)
Tenant moved to vacate a stipulation of settlement on the basis that she did not understand English and no Arabic interpreter was provided by the court at the time the stipulation was entered into, and that she had no lawyer at that time. The court requisitioned and listened to tapes of the allocution of the stipulation and held that tenant had the ability to understand the terms of the stipulation. Moreover, a hearing was held on tenant's motion to vacate the stipulation, wherein the tenant answered questions clearly in English. Finally, the court noted that the tenant was settling a nuisance proceeding which appeared to be based on credible evidence, and she thereafter took advantage of the stipulation of settlement for four months. Therefore, the court held that the stipulation would stand.
ITW Mortgage Investments v. GMI N.Y.
(Civ. Ct. N.Y. Cty. 2/24/98)
Petitioner landlord commenced non-payment proceeding against respondent tenant, who had not been paying rent to landlord and had sublet the premises to undertenant. Tenant claimed that it had not been paying rent because landlord had breached lease in changing premises without consent of tenant; landlord pointed out that sublease between tenant and undertenant contained no such obligation. Tenant also asserted that the lease had been terminated because landlord had "substantially and materially alter[ed] the premises"; landlord explained that only a door and a small partition had been changed. Tenant also claimed constructive eviction, which the court determined to be false, since tenant was accepting rent from undertenants and had not in fact abandoned the premises. All six of tenant's affirmative defenses were stricken by court. Court granted summary judgment in favor of landlord, determining that tenant was not paying rent due to landlord under the terms of the lease.
Enrico & Sons Contracting v. Bridgemarket Associates
252 A.D.2d 429, 675 N.Y.S.2d 351 (1st Dept 1998)
Appellate Division reversed grant of summary judgment to concrete contractor and affirmed defendant landlord's amendment of pleadings to include a counterclaim in the nature of recoupment for defective work.
111-115 Broadway Limited Partnership v. Minter & Gay, etc., et al.
255 A.D.2d 192, 680 N.Y.S.2d 12 (1st Dept 1998)
Dissolution of a partnership did not render it unamenable to an instant action seeking to determine the extent, if any, of the partnership's outstanding rent obligation under a lease; notwithstanding its dissolution, the partnership continued to exist for the purpose of winding up its affairs, including the dispute respecting rent.
Eighty First Associates v. Morell
(App. Term 1st Dept. 11/97)
In this case of a long-term rent-stabilized tenancy where the tenant has deposited the entire $42,030.61 judgment against him with the clerk of the court, the Appellate Term determined that lower court had erred by not vacating warrant of eviction.
805 Third Avenue Co. v. Levco Realty Corp.
(sup. Ct. N.Y. Cty. 10/29/96
Defendant tenant had failed to pay rent to plaintiff landlord in violation of terms of lease, resulting in lease termination. Court granted landlord's motions for partial summary judgment of $446,500.02 and for severance for trial of landlord's claim for unpaid additional rent and liquidated damages.
The following case is from the Grand Central Station Project:
Terminal Camera v. MTA
(sup. Ct. N.Y. Cty. 3/6/96)
Terminal Camera was a small store operating in Grand Central Station that resisted all efforts to remove it. Delay past the point when construction was scheduled to begin could have potentially cost the MTA $900,000.00 per month. Itkowitz & Harwood prevailed against Terminal Camera in a civil court holdover proceeding. Terminal Camera then brought an Article 78 Proceeding challenging the MTA's right to terminate the subject month-to-month lease that we defeated. Subsequently Terminal Camera's efforts to stay its eviction in bankruptcy court failed, as did any attempt to obtain a stay in the Appellate Division.
MTA has "proprietary right," like any other landlord, to terminate a tenant's lease.
Here is another Grand Central Station victory:
MTA v. Dollar Bills
(Civ. Ct. N.Y. Cty. 5/13/96)
Court upheld holdover petition by the MTA against Dollar Bills, the last holdout tenant whose removal was necessary for the renovation of Grand Central Station. The court rejected attacks on the service of the notice of petition; permitted the amendment of the petition; and determined that the failure to timely object to the verification of the petition constituted waiver of any objection, and that a discrepancy in the description of the premises was a "non-jurisdictional" amendable defect.
25-35 Tennis Associates v. Humpherys
2/21/96 N.Y.L.J. 28, (col. 6) (Civ. Ct. N.Y. Cty.)
Court rejected pro se tenant's attempt to open a stipulation providing for the payment of arrears and imposed sanctions against her for dilatory tactics.
AD 1619 Co. v. VB Management, Inc.
The following is a series of seven decisions in which Itkowitz & Harwood represented AD 1619 Co., the commercial landlord of the historic Brill Building in midtown Manhattan. These decisions are extremely instructional in hardball litigation tactics in the real world. They show how a determined litigant (in this case the landlord) can prevail by persevering in a cause he believes is just, even after an initial bad break in a lower court. In this case, the lower court initially granted a 20% rent abatement, which was reduced on appeal to 1%, resulting in payment of all rent due and a substantial award of attorney's fees. While the outcome came after a number of appeals and remands, the result more than justified the client's commitment.
Link to Full Text of Decisions
Maria B. v. Joseph F.
26 Family Law Review 2 (June 1994) p.26
Court entered an order of filiation against respondent father despite petitioner mother's 16-year delay in bringing paternity proceedings.
The following is the support hearing for the above trial:
Maria B. v. Joseph F.
26 Family Law Review 2 (June 1994) p.26
Court ruled in favor of petitioner, issuing $27,637.00 in attorneys' fees.
Kraft, Haiken & Bell v. Bell & Co.
(Civ. Ct. N.Y. Cty. 6/9/94)
Court held that service of process upon subtenant personally is not a precondition to using substituted service that may be utilized at the option of landlord.
G.S.H. Associates v. Expressions, Inc.
(Civ. Ct. N.Y. Cty. 6/1/94)
Court held that the reduction in elevator services from two to one functioning elevators due to renovation and repair of elevators did not constitute an actual or constructive eviction, particularly where the lease provided for renovation and repair to the elevators.
The following was one of the cases involved when Itkowitz & Harwood cleared a building on 11th Avenue in Manhattan containing approximately 150 sub-tenants for Charles Benenson & Preston R. Tisch:
Benenson v. New York Oriental Rug Trade Center
(sup. Ct. N.Y. Cty. 4/15/94)
Tenant argued that service of a three-day notice was required to comply with a provision in the subject lease stating that copies of any notices required under the lease must be mailed to both the tenant and its attorneys. The lease required that any notice sent under the lease also be mailed to their attorneys. Because the attorneys in question had moved since the execution of the lease and tenant had notified landlord of the new address, tenant alleged that a mailing to the old address rendered the service of the notice invalid. The court ruled in favor of the landlord, because the lease only requires that statements, which are to be given by the landlord to the tenant "under the lease," are also to be given to the attorney. The three-day notice was not required to be given by the terms of the lease; the statute required it. In short, service of the three-day notice on the tenant and upon its attorney had been waived, and the service of a three-day notice on the tenant without service on the tenant's attorney did not violate the terms of the lease or of any statute.
400 Madison Ave. v. Etno, Inc.
(Civ. Ct. N.Y. Cty. 3/28/94)
Respondent tenant was allowed to introduce parole evidence in support of its claim for a five-month rent allowance where subject lease clause failed to express the true agreement of the parties. Landlord, a foreign partnership, could not obtain a judgment against tenant without first obtaining a certificate of authority to do business in the state. Court held that tenant was entitled to an abatement where the landlord failed to repair roof of building.
In re Arts des Provinces de France, Inc.
153 B.R. 144 (Bankr. S.D.N.Y. 1993)
When a bar date notice was served upon a managing agent, but not upon landlord or its counsel, landlord was permitted to file a late notice of claim.
53rd Street Associates v. Las Americas Communications, Inc.
21 H.C.R. 203A (sup. Ct. N.Y. Cty. 11/8/93)
Following judgment of possession and money judgment for arrears, defendant tenant had vacated commercial premises for which he had signed a guaranty. Court awarded judgment to plaintiff landlord against tenant for amount of initial money judgment, subsequent unpaid base and additional rent, and cleaning expenses.
In re Arts des Provinces de France, Inc.
153 B.R. 144 (Bankr. S.D.N.Y. 1993)
In this Chapter 11 bankruptcy case, creditor was permitted to file late notice of claim because debtor had improperly served bar date notice.
Three Park Avenue Co. v. Feuer Leather Corp.
(sup. Ct. N.Y. Cty. 7/17/92)
Court held that tenant defendant's claim that landlord breached lease obligation to provide adequate ventilation and heat was not sufficient to defeat partial summary judgment for landlord for rent owed.
Matter of Plaza Realty Investors
173 A.D.2d 290 (1st Dept. 1991)
Appellate Division upheld the dismissal of landlord's appeal of an Article 78 proceeding contesting the agency's finding that a tenant filed a rent overcharge case in a timely manner.
Corbel Construction v. Bridgemarket Associates
1/4/90 N.Y.L.J. p.21 (sup. Ct. N.Y. Cty.)
Court held that prior to suing individual partners of a partnership for the obligations of the partnership, the plaintiff was required to sue the partnership and allege that the partnership is insolvent or that the partnership property is insufficient to pay partnership debts and there is no effective remedy without resort to individual property.
Corbo Co. v. Feiden Enterprises, Inc.
(App. Term 1st Dept.)
Court found that it could not relegate landlord to a plenary action for arrears that accrue subsequent to the commencement of a summary proceeding, but must allow petitioner to amend the proceeding.
Dabalsa v. Crino
143 Misc.2d 480, 541 N.Y.S.2d 144 (Civ. Ct. N.Y. Cty. 1989)
Tenant filed rent overcharge in a timely manner and in court, as opposed to before the Division of Housing and Community Renewal, which was not a necessary party.
West Coast Company v. SGHC Food Corp.
19 H.C.R. 115A (Civ. Ct. N.Y. Cty. 1989)
Court held that notice from landlord's agent was adequate where lease was executed by agent on behalf of landlord, and that notice from landlord referring to "your lease" was not equivocal or ambiguous as to the lease description where only one lease existed between the parties. Failure of tenant to contest lease escalation within 30 days as required by lease barred tenant from challenging escalation outside of required period.
West Coast Company v. International Hors D'Oeuvrery
(Civ. Ct. N.Y. Cty. 6/21/88)
Court ruled that respondent tenant not entitled to discovery of causes of water damage in a commercial non-payment proceeding, lack of a certificate of occupancy was not a defense to a commercial non-payment proceeding, and alleged landlord negligence was not a defense to a non-payment because "a commercial tenant has an independent obligation to pay rent as long as the tenant is in possession."
Knopfler v. Soybel
(sup. Ct. N.Y. Cty. 5/31/88)
Court required landlord to consent to sublease when rent-stabilized tenant temporarily located to London for business reasons.
Genn v. Schwarz
138 Misc.2d 154, 523 N.Y.S.2d 937 (sup. Ct. N.Y. Cty. 1987)
Court determined that the City violated the rights of a former assistant corporation counsel by failing to properly calculate terminal leave benefits. Court subsequently determined that the employee was also entitled to interest on the amount due.
Gershowitz v. Gershowitz
112 A.D.2d 67, 491 N.Y.S.2d 356 (1st Dept. 1985)
Appellate Division granted father's request to enjoin former wife from changing their child's surname in violation of parties' separation agreement and judgment of divorce.
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Local 2507 v. Health and Hospitals Corporation
(sup. Ct. N.Y. Cty. 1/31/85)
Over New York City's assertion that union has conflict of interest, court determined that municipal labor union was permitted to represent all its members in connection with the demotion, promotion and appointment of certain individual members, because any perceived conflict was remedied by notice to and joinder of all members.
For press on Itkowitz & Harwood's further work on behalf of Local 2507, click on the link below:
Hoffman v. Sierra Club
(sup. Ct. N.Y. Cty. 5/29/85)
Court rejected challenge to the election of certain members to the Board of Governance of the Atlantic Chapter of the Sierra Club on the grounds that the challenge failed to demonstrate fraud or wrongdoing or that standards of fair dealing require the court to order a new election.
Engstrom v. Kerr
113 A.D.2d 866, 493 N.Y.S.2d 597 (2d Dept. 1985)
Appellate Division voided termination of paramedic because City did not allow employee to return to probationary position as a provisional emergency medical technician.
Eastwood Building Committee of Roosevelt Island v. Berman
118 Misc.2d 494, 461 N.Y.S.2d 184 (sup. Ct. N.Y. Cty. 1983)
Court upheld challenge by tenants to rent increase promulgated by the State Division of Housing and Community renewal on the ground that the State agency had failed to comply with its published rules and regulations governing the issuance of rent increases for state-subsidized housing.
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Adams v. Dinkins
(sup. Ct. N.Y. Cty. 10/20/83)
Petitioner, suing for divorce from husband who was defending that action on the ground that he had never legally married petitioner, sought order directing respondent David Dinkins (then City Clerk of the City of New York) to issue certificate of marriage so that divorce could proceed. Respondent argued that no order of mandamus could be issued since petitioner had been married without marriage license and by clergyman not registered with City Clerk's office; in addition, petitioner had not documented a previous divorce. Court ruled that lack of license and clergy registration were not necessarily a bar to issuance of marriage certificate, and that with inclusion of certified copies of previous divorce, petition could be renewed. Dinkins filed a notice of appeal and then decided to withdraw it. The case settled with the City issuing a marriage certificate, which then allowed the petitioner to seek a divorce with the property rights of a spouse in Boston, Massachusetts.
Eastwood Building Committee of Roosevelt Island v. Berman
118 Misc.2d 494, 461 N.Y.S.2d 184 (sup. Ct. N.Y. Cty. 1983)
Court upheld challenge by tenants to rent increase promulgated by the State Division of Housing and Community renewal on the ground that the State agency had failed to comply with its published rules and regulations governing the issuance of rent increases for state-subsidized housing.
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