MEMORANDUM OPINION Adv. Proc. No. 17-01023 (MKV). LEWIS A. KAPLAN , District Judge . The matter is before the Court on defendants' motion to withdraw the reference of an adversary proceeding brought by plaintiff in the United States Bankruptcy Court for the Southern District of New York. 1 Background In 2003, K&H Restaurant, Inc. d/b/a Raffles ("K&H") entered into a commercial lease with Lexington Hotel LLC (defendant DiamondRock NY Lex Owner, LLC's ("DiamondRock") predecessor-in-...
ORDER RICHARD J. SULLIVAN , District Judge . On April 14, 2016, Plaintiff Chuk On Chan commenced this action pursuant to the Fair Labor Standards Act, 29 U.S.C. 201 et seq. ("FLSA"), and New York State Labor Law, N.Y. Lab. Law 650 et seq. ("NYLL"), to recover unpaid overtime wages, unpaid spread of hours, liquidated damages, pre-judgment interest, and attorneys' fees and costs. (Doc. No. 1.) Now before the Court is Magistrate Judge Netburn's Report and Recommendation, dated March 3,...
OPINION & ORDER PAUL A. ENGELMAYER , District Judge . The City of New York has long attempted to limit the visual blight and potential for danger that large billboards along its major thoroughfares may present. In this case, plaintiffs — owners or lessees of property on which billboards are or have been displayed — challenge two of the City's zoning regulations as discriminatory against them in violation of the First Amendment and as a regulatory taking without just compensation in...
OPINION & ORDER PAUL A. ENGELMAYER , District Judge . This decision, in this latest in a long-running series of lawsuits between two entities owning aspects of the operations of the Benihana restaurant empire, resolves an application for attorneys' fees and costs. Petitioner Benihana, Inc. ("BI") seeks an order directing respondent Benihana of Tokyo, LLC ("BOT") to pay BI for the fees and costs it reasonably incurred in attempting to enforce a permanent injunction that this Court entered...
OPINION AND ORDER RONNIE ABRAMS , District Judge . Plaintiffs filed this lawsuit against two companies — Colgate Palmolive Co. and Tom's of Maine Inc. — that use the word "natural" in advertising their personal-care products, including deodorant and toothpaste. Compl. 1 (Dkt. 1); Am. Compl. 1, 15, 17 (Dkt. 8). In their Amended Complaint, Plaintiffs assert that the Defendants' products are unnatural because they contain "synthetic and highly chemically processed ingredients." Am. Compl....
OPINION & ORDER PAUL A. CROTTY , District Judge . Plaintiff Joseph Shaw brings this action against Zimmer, Inc. and Zimmer Holdings, Inc. n/k/a Zimmer Biomet Holdings, Inc. (collectively "Defendants"), for injuries he allegedly sustained from a hip implant system manufactured by Defendants. Defendants move to dismiss four of Plaintiff's seven claims. For the reasons that follow, the motion is denied in part and granted in part. BACKGROUND Plaintiff initiated this action on March 23,...
MEMORANDUM OPINION LEWIS A. KAPLAN , District Judge . Defendant Raymours Furniture Company ("Raymour") moves to compel arbitration and to stay this action pending its completion. Magistrate Judge Sarah Netburn has submitted a report and recommendation (the "R&R") recommending that the motion be denied. 1 Raymour objects to the R&R. It raises a number of alleged factual errors and, more broadly, argues that the magistrate judge erred in characterizing the arbitration clause as narrow and...
OPINION & ORDER PAUL A. ENGELMAYER , District Judge . In this action, now at the summary judgment stage, an insurer, Century Surety Company ("Century Surety"), seeks a declaratory judgment that, under the terms of its insurance policy, it owes no coverage to its insured, EM Windsor Construction Inc. ("EM Windsor"), or several other parties that claim additional-insured status under the policy. The claims under the policy have been made in connection with a personal injury lawsuit. As the...
MEMORANDUM OPINION & ORDER THOMAS P. GRIESA , District Judge . On October 25, 2017, this court issued an Opinion denying Petitioner Raoul South's petition for habeas corpus. ECF No. 33. On October 30, 2017, the Clerk of Court entered judgment against South. ECF No. 34. Subsequently, on November 21, 2017, South filed a notice of appeal from this court's October 25 Opinion. For the following reasons, the court holds that no certificate of appealability shall issue, and that any appeal from...
OPINION AND ORDER PAUL A. ENGELMAYER , District Judge . Pending before the Court is a motion by non-party MSD Capital, L.P. ("MSD"), Dkt. 161 ("Mot."), seeking to vacate this Court's April 21, 2017 final order of forfeiture, Dkt. 127. MSD moves pursuant to Federal Rule of Criminal Procedure 60 and the Crime Victims' Rights Act ("CVRA"). Because defendant John Afriyie has already filed a notice of appeal challenging his sentence, the Court is compelled to dismiss MSD's motion for lack of...
OPINION & ORDER RONNIE ABRAMS , District Judge . Plaintiff Dorothy Lemon sued Defendants Jerrietta Hollinger and Ms. Hollinger's law firm, Ganz & Hollinger, P.C., asserting claims for negligence, tortious interference, fraud, and breach of contract. Defendants move to dismiss the Complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below, that motion is granted except as to Plaintiff's tortious-interference claim. No later than...
OPINION & ORDER PAUL A. CROTTY , District Judge . Plaintiffs National Union Fire Insurance Company of Pittsburgh, PA ("National Union") and New Hampshire Insurance Company ("NHIC") bring this action against Defendant Southern Coal Corporation for breach of a promissory note. On November 27, 2017, the Court granted National Union's motion for summary judgment, holding that it was entitled to (1) $559,286 in unpaid principal, (2) prejudgment interest at the rate of 12% per annum from...
MEMORANDUM OPINION & ORDER JOHN G. KOELTL , District Judge . The plaintiff, David Stewart, has filed a motion to amend his complaint, requesting permission to add factual allegations relating to his overtime and retaliation claims and to add a claim for retaliation under the Federal Labor Standards Act ("FLSA"). The plaintiff's current complaint alleges various compensation-related claims under the FLSA and the New York Labor Law ("NYLL"). Federal Rule of Civil Procedure 15(a) provides...
MEMORANDUM OPINION & ORDER PAUL G. GARDEPHE , District Judge . Defendant Kaleil Tuzman — the former chief executive officer of KIT digital, Inc. — is charged with conspiracy to commit securities fraud and wire fraud between December 2008 and April 2012. (S8 Indictment (Dkt. No. 198)) A jury was selected during the week of October 23, 2017, the presentation of evidence began on October 30, 2017, and trial has continued since that time. In Count Six of the S8 Indictment, Tuzman is charged...
OPINION AND ORDER ANALISA TORRES , District Judge . On July 27, 2017, Plaintiffs filed a petition to confirm an arbitration award of $34,659.96. ECF No. 1. The Court ordered that Plaintiffs proceed by motion for summary judgment. ECF No. 6. On August 4, 2017, Plaintiffs filed their motion for summary judgment. ECF No. 8. For the reasons stated below, Plaintiffs' motion is GRANTED. BACKGROUND At all times relevant to this action, Defendant Graham Restoration Co. Inc. ("Graham"), was a...
MEMORANDUM OPINION & ORDER JOHN G. KOELTL , District Judge . The defendant brings a motion pursuant to Rule 36 of the Federal Rules of Criminal Procedure to correct a clerical error in his sentence, namely, the failure of this Court to make his sentence run concurrently with a sentence in the Eastern District of New York. However, Rule 36 is not the correct vehicle for such a motion because the error, if there had been one, would not be a clerical motion subject to correction under Rule...
REPORT AND RECOMENDATION TO THE HONORABLE LAURA TAYLOR SWAIN BARBARA MOSES , Magistrate Judge . Plaintiffs Rachel Tyman and Jonathan Robinson bring this putative class action against defendant Pfizer, Inc. (Pfizer), the maker of Chapstick brand lip balm products, alleging that Pfizer deceptively labels and markets certain of its "Total Hydration" ChapStick varieties (ChapStick Products or Products) as "100% NATURAL" and as "Clinically Proven" to provide "healthier," "more youthful looking...
MEMORANDUM OPINION AND ORDER JOHN G. KOELTL , District Judge . The petitioner requests that the Court appoint her counsel. The Court of Appeals for the Second Circuit has articulated factors that should guide the Court's discretion to appoint counsel to represent an indigent civil litigant under 28 U.S.C. 1915. Willey v. Kirkpatrick , 801 F.3d 51 , 71 (2d Cir. 2015) (citing Hodge v. Police Officers , 802 F.2d 58 , 61-62 (2d Cir. 1986)); see Jackson v. Moscicki , No. 99 Civ. 2427 (...
OPINION & ORDER PAUL A. ENGELMAYER , District Judge . This case is a putative class action by a legally blind plaintiff claiming that the website of Bonobos, Inc. ("Bonobos"), an establishment that sells clothing and accessories, including through its website, is not compliant with the Americans with Disabilities Act (the "ADA"), because the website denies equal access to blind customers. Bonobos now moves to dismiss the first amended complaint ("FAC") of named plaintiff Jose Del-Orden ("...
OPINION COLLEEN McMAHON , Chief District Judge . Petitioner Adolf Gutt, proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. 2254, challenging his conviction in New York County Court for first-degree and second-degree assault, and his resulting 16-year-to-life sentence. ECF No. 1. Before this court is Magistrate Judge Kevin Nathaniel Fox's Report and Recommendation ("R & R"), dated July 6, 2017, recommending Petitioner's habeas petition be dismissed in...
