Extra, Extra, Read All About It…
What better way to keep you informed? Most of what we do is confidential or otherwise protected by the Attorney-Client Privilege, meaning we cannot talk (or write) about it. This includes (i) the advice we give clients, (ii) the actions taken by clients against our advice, (iii) negotiations, (iv) contracts, and (v) morning coffee talks between Jeff & Scott about family & friends.
Every now and then, though, something becomes newsworthy. The most common example of this would be a court decision which is available to the public. We’ve decided that when such a public event makes us look good, we will do our best to let you know about it.
The results achieved in the Newsletters below are “historical” and not a reliable indicator of future results. Since every case is dissimilar, you should not expect similar results. Nothing here should be construed as professional advice!
Below are some cases that we find interesting, some of which were expanded into a Newsletter (see above). Lest we leave you with the impression that we have a perfect track record, we begrudgingly admit that every now and then, a Judge rules against us. It is not likely that you will find those decisions below – unless we were successful on an appeal!
The results achieved in the cases outlined below are “historical” and not a reliable indicator of future results. Since every case is dissimilar, you should not expect similar results. Nothing here should be construed as professional advice!
A Fool For A Client
The Respondent, Vargas Leon Corporation, failed to appear at the housing court hearing on the scheduled date. As a result, a default judgment was entered against it that allowed the Landlord-Petitioner to terminate its license and oust it from the building. The Respondent moved the Court to be restored, arguing that it was not properly served with the pleadings and other required notices.Unlike their human counterparts, corporations are "legal fictions." One difference in New York is that in most cases, a cooperation cannot appear in a court proceeding without a lawyer. We therefore argued on behalf of the Landlord that...
A Big Win In Small Claims Court
Simpson v. Islip Terrace Fire District is the rare Small Claims case that merits an entry in our Decisions of Interest. Usually, Small Claims Court is a “People’s Court” where the rules of evidence and civil procedure are relaxed. Litigants casually tell their stories, and the Judge often asks questions. Often, neither side is represented by counsel. In fact, Small Claims is the only court in New York that allows a corporation to “appear” without an attorney. After a brief trial, the Judge usually issues a simplified monetary decision without elaborating on the Court’s analysis.Here, both sides had trial counsel. ...
Be Courteous
It is an age-old adage that “records are made to be broken”. Unfortunately, so, too, are contracts. Since the parties who entered into the contract have a vested interest in seeing it fulfilled rather than litigating the breaches, many agreements require the non-breaching party to give written notice of the breach with an opportunity to cure. It is not uncommon for agreements, especially commercial leases, to also require that copies of these notices must also be served on the breaching party’s lawyers. This is sometimes referred to as a “courtesy copy”, but it is no mere good will gesture since...
Pay No Attention To That Man Behind The Curtain
It is a bedrock principle of law that a corporation and the person who owns/operates it are not one and the same. This is true even for people like Bill Gates, Steve Jobs and Mark Zuckerberg, who are forever and inexorably tied to the companies they co-founded. This legal concept that protects the owner of a corporation for the (alleged) wrongs done by and in the name of his business was on full display in Amador v. 854 Hermiker Street Corp. et al, Sup.Ct., Kings Co., 509663/2019. The decision can be read HERE, and the our Newsletter on the...
The American Rule
Many places in the world use the “English Rule”, where the prevailing party in a law suit is entitled to recover legal fees. America generally prefers the (aptly named) “American Rule”, wherein each party is responsible for his/her own legal fees unless there is a fee shifting statute or contract provision. We represented the Plaintiff in Hildreth v Pirato, a case where each party sued the other for breach of an agreement that dissolved a business partnership. The agreement contained such a fee shifting provision that entitled the party who substantially prevailed to recover his attorneys’ fees. Pirato’s...
Lien On Me
Shilian v. All Sons Electric is the subject of our second Newsletter. Our client, an electrical contractor, retained us after it was served with legal papers by homeowners challenging the validity of its mechanic’s lien. We argued that the Judge had the inherent equitable power to back date the lien extension so that it was still enforceable. You can find the Judge’s wise opinion in the law books at Matter of Shilian v All Sons Elec. Corp., No. 601994/16, 51 Misc. 3d 1221(A), 41 N.Y.S.3d 452, 2016 N.Y. Slip Op. 50756(U), 2016 WL 2842752 (Sup Ct, May 09, 2016)....
More On Shifting The Burden
After our clients sold their home, they were sued by the (former) brokers. The brokers alleged that they were owed a commission since they introduced the buyer to the seller during the exclusive period of time covered in the broker’s agreement. After discovery was complete, we moved for summary judgment dismissing the complaint, arguing that there was no evidence to back up the brokers’ claim. In his decision granting our motion, the Judge noted that once we made “an adequate prima facie show of entitlement to summary judgment”, the burden shifted to the brokers to present actual, admissible evidence...
Shifting The Burden
After our clients’ house sustained significant damage from a burst pipe, they retained a public adjuster to negotiate the best possible settlement with their insurance company. Since the homeowners had already received an offer of $230,000 from the carrier, our clients agreed to pay the public adjuster 10% of any amount recovered above $230,000. The adjuster obtained an additional settlement from the carrier of $6,359.50 (for a total of $236,359.50). Instead of sending my clients a bill for $635.95, he sued them to recover $23,635, which was 10% of the entire amount. We moved for summary judgment,...
If I Could Turn Back Time
Our client obtained a money judgment of about $75,000 in 2002 against its tenants. Six years later, the tenants sought to set aside the judgment by arguing that (i) they hadn’t been properly served with the summons & complaint and (ii) didn’t owe the money in any event. The trial court vacated the judgment and ordered the case to proceed to trial; Miller Law Offices was retained to appeal the decision. A unanimous Appellate Division agreed with us that Defendants’ “bare and unsubstantiated denial of receipt of process was insufficient to rebut the presumption of proper service...
Winning Isn’t Everything
On several occasions, we’ve won even though we may have technically lost. For example, in Jamaica Bay Riding Academy v Azulay, Civil Court, Kings County, the stable sued our client, seeking approximately $35,000 for four years of unpaid stable charges. Our defense: Our client was [only] liable for the missing the first month’s payment, after which the stable owner should have mitigated its damages by selling the horse at auction. Five days of trial later, the jury awarded the stable the sum of $1,710 (one month’s rent). We are very proud of that loss.
You Got The Wrong Guy
Our client was sued because his business partner signed an agreement promising that our guy would pay a certain debt. We moved to dismiss the complaint, arguing that the partner lacked the authority to bind our client to pay the debt. The trial judge denied our motion and ordered discovery to proceed. Read how the Appellate Division reversed and agreed with us, holding that “[s]ince the moving defendants established that neither … were signatories to the letter agreement, [they] cannot be bound by it.”
Trust Dies But Mistrust Blossoms
In this case, the plaintiff sued our clients, arguing that their purchase of her adult children’s house at a Sheriff’s sale to partially satisfy a money judgment was defective because she was the ‘equitable’ owner of the house by virtue of a “constructive trust”. The trial Judge denied our motion to dismiss, holding that plaintiff could indeed recover the house if she proved the allegations in the complaint. A unanimous Appellate Division disagreed with the Judge (and agreed with us), tossing out the complaint, thereby giving our clients clear title to the house. To read the decision,...
If I Had A Hammer
After a sixteen day bench trial, which included two site visits, the trial Judge ruled that our client – the contractor – was entitled to recover $243,350.96 against the homeowners on its claims for breach of contract and foreclosure of Mechanic’s Lien.La Bella Decision
Making A Federal Case Out Of It
We are pleased to share a Federal Court decision dated September 26, 2014 which confirmed an arbitration victory for our clients. The members of a real estate development company couldn’t agree on how to divide the proceeds from the sale of the property it owned. Some of the members commenced a Federal law suit against our clients alleging all sorts of bad things. We settled the law suit by agreeing to arbitrate the disposition of the disputed funds. After five days of hearings, the arbitrator ruled in favor of our clients and awarded them nearly one million dollars. The other guys...
Ready, Willing and Able
A real estate broker sued our client, a corporation that owns a large warehouse, alleging that the broker earned a commission when it brought a buyer who was ‘ready, willing and able’ to purchase the property on terms that were acceptable to the owner, even though the parties never actually closed title (let alone signed a contract of sale). We moved to dismiss the complaint, arguing that the email exchanges between the lawyers for the buyer and seller – and the many proposed changes to the contract – constituted documentary evidence that there was never a meeting of the minds on the material terms....