Court Decisions

In, Realis Development, LLC v. Neuberger, 6 A.D.3d 599, 774 N.Y.S.2d 787 ( 2 Dept. 2004) app denied , 4 N.Y.3d 703 (2005), we successfully upheld restrictive covenants sought to be extinguished by a developer under a theory that such were supposedly extinguished by the doctrine of merger. Because the developer failed to meet the statutory extinguishment standards contained in R.P.A.P.L. § 1951, and because the developer had actual notice of the restrictions when it purchased its undeveloped parcel, we were able to prevent multi-family apartments from being built in violation of the one residence per lot restrictions.

The case of, Walter Karl, Inc. v. Wood, 137 A.D.2d 22, 528 N.Y.S.2d 94 (2d Dept. 1988) was an employment matter wherein we successfully overturned the grant of a preliminary injunction against our client who had been enjoined at the trial court level. Because we proved that no confidential data or trade secret information was usurped, nor was there any evidence of employee disloyalty by defendant before he left plaintiff's employ, the Appellate Division ruled that no injunction should have issued.

In, Marshall v. 130 North Bedford Road Mount Kisco Corp., 277 A.D.2d 432, 717 N.Y.S.2d 227 (2d Dept. 2000) we successfully obtained an affirmance from the Appellate Division of a $900,000.00 personal injury damage award. The Court determined that defendant’s motion in limine was really an untimely summary judgment motion. The trial court also correctly allowed a new plaintiff’s expert to testify in place of a prior expert who had died without violating CPLR 3101(d).

In, Walter Karl, Inc. v. Wood, 161 A.D.2d 704, 555 N.Y.S.2d 840 (2d Dept. 1990), we obtained an affirmance of the trial court’s determination which prohibited disclosure of personal tax returns. The Appellate Division also held that the grant of a protective order to prevent non-material and irrelevant questions being posed to a non-party witness was proper.

In, Kobylack v. Koyblack, 110 Misc.2d 402, 442 N.Y.S.2d 392 (Sup. Ct., Westchester 1981), modfied 96 A.D.2d 831, 465 N.Y.S.2d 581 (2d Dept. 1983) reversed 62 N.Y.2d 399, 477 N.Y.S.2d 109 (1984), on remand , 111 A.D.2d 221, 489 N.Y.S.2d 257 (1985), we successfully obtained a modification of the trial court’s determination to disallow any interest to the Wife of the Husband’s profit-sharing savings plan known as a “Thrift Fund”. Decided less than a month after the Court of Appeals landmark decision in, Majauskas v. Majauskas (61 N.Y.2d 481), the modification obtained on the first appeal was ultimately sustained after two additional appeals.

In, Matter of the Estate Darrow, 120 Misc.2d 924, 467 N.Y.S.2d 114 (Surr. Ct. N.Y. Co. 1983), we were involved in a contested accounting proceeding which dealt with the conflicting rights of decedent’s surviving spouse and the rights of decedent’s first wife. The case also required the Court to balance the inter-play of fiduciary obligations under the E.P.T.L., the New York State tax law and the Internal Revenue Code.

In, Matter of Kennedy v. ZBA, Town of North Salem, 205 A.D.2d. 629, 613 N.Y.S.2d 264 (2d Dept. 1994), we successfully appealed the lower court's decision which annulled the ZBA’s determination that the affected property owner was conducting a legal, pre-existing, non-conforming use. The Appellate Division held that merely because a license or a certificate of occupancy was not initially obtained, it did not necessarily mean that the actual use of the property was illegal. Additionally, the Court also held that a use grandfathered under a prior zoning ordinance cannot be changed to an unlawful use merely because a certificate validating the use may have been lost.

In, Peartree Associates, LLC v. Naclerio, 303 A.D.2d 310, 756 N.Y.S.2d 551 (1st Dept. 2003), we successfully defended a claim by plaintiff that an alleged oral agreement somehow modified a written option agreement to purchase real property. Because certain payments made were not unequivocally referable to the alleged oral agreement, it could not be enforced.

In, HDA Parking Developers, Inc. v. The Mount Vernon Hospital, 260 A.D.2d 350, 687 N.Y.S.2d 663 (2d Dept. 1999), we successfully obtained summary judgment for defendant hospital with regard to a claim that a pre-contract Letter of Intent was somehow enforceable. Both the lower court and the Appellate Division found that the Letter of Intent was neither a final nor complete agreement, and thus, plaintiff had no cause of action for breach of contract.

In, Kozak v. Kozak, 111 A.D.2d 842, 490 N.Y.S.2d 583 (2d Dept.), app. dsmd 66 N.Y.2d 913 (1985), we successfully overturned a trial court ruling that permitted the children's mother to move them to a distant domicile. The Appellate Division held that such will not be permitted when it would effectively deprive the non-custodial parent of regular access to the children of the marriage.

In, 1080 Warburton Corp. v. Torrisi, 167 A.D.2d 336, 561 N.Y.S.2d 302 (2d Dept. 1990), we were successful in obtaining an affirmance of the lower court’s Order which held that contractual arrangements between the parties to a cooperative conversion plan did not contain a usurious interest rate.

In, Lugo v. LJN Toys, Ltd., 146 A.D.2d 168, 539 N.Y.S.2d 922 (1st Dept. 1989), aff’d, 75 N.Y.2d 850 (1990), all three Courts involved held that summary judgment for defendant was improper and that the infant’s personal injury action could go forward. A non-party child improperly threw a toy part which injured the infant plaintiff. However, the courts found that throwing the toy’s part was reasonably foreseeable and presented an issue of fact requiring a jury trial. Both appellate courts relied on expert evidence submitted by plaintiff as to forseeability in that a child would likely mimic the Voltron cartoon character based on the extensive television exposure involved.

In, Marabella v. Lundy, 93 A.D.2d 881, 461 N.Y.S.2d 417 (2d Dept.), aff’d 60 N.Y.2d 581 (1983), it was held to be error to restore a case to the Trial Calendar without a sufficient showing of merit. The amendments to the CPLR allowing the Court to exercise discretion to excuse law office failure did not apply because the merits of the action was not established upon the application to restore.

Prior results do not guarantee future outcomes.