BERNARD J. FRIED, J. Defendants move for summary judgment dismissing the complaint in its entirety. The motion is granted. This action involves two distinct claims arising from separate deals among the parties, each of which depends upon the enforceability of its own alleged oral agreement. The first claim is for the return of an $850,000 earnest money deposit allegedly paid in connection with the attempted purchase by plaintiffs of the Palm Beach Hilton Hotel in 2005. Plaintiffs allege that...
O. PETER SHERWOOD, J. This is a proceeding pursuant to CPLR Article 75 to confirm two labor contact awards rendered by a three-person panel in an interest arbitration. One involves the New York City Transit Authority ("TA") and the Transportation Workers Union of America Local 100 ("TWU"). The other involves the Manhattan and Bronx Surface Transit Operating Authority ("OA"). The OA which operates public bus lines in New York City is a public benefit corporation and a subsidiary of the TA. The...
EILEEN BRANSTEN, J. Defendant Roland ("Roel") Pieper moves pursuant to CPLR 2304 to quash a post-judgment subpoena duces tecum (the "Subpoena") dated September 18, 2009 issued to Pieper by plaintiff Alfred E. Mann Living Trust (the "Mann Living Trust"). BACKGROUND On March 19, 2009, the Mann Living Trust commenced this action by filing a summons and motion for summary judgment in lieu of complaint seeking to recover under a promissory note and guaranty (the "Guaranty") executed by ETIRC...
OPINION OF THE COURT SPAIN, J. Petitioner is the collective bargaining agent for state employees who are members of the Security Services Unit, most of whom receive health benefits through the Empire Plan, which includes mental health and substance abuse treatment benefits. These mental health and substance abuse treatment benefits were provided for approximately 10 years through a contract with GHI, as insurer, and Value Options, the third-party administrator (hereinafter GHI/Value Options);...
OPINION OF THE COURT ROSE, J.P. Petitioner, a "gas corporation" as defined in Public Service Law 2 (11), filed a proposal with respondent seeking to increase its rates for the 2008 rate year and to pass on to its ratepayers certain costs of site investigation and remediation (hereinafter SIR). Following evidentiary hearings and a review of the Administrative Law Judge's recommendations, respondent issued a rate order that imposed an incentive plan, determined a 9.1% rate of return on equity,...
OPINION OF THE COURT WALTER B. TOLUB, J. Petitioners, unions representing employees of the New York City Housing Authority (NYCHA), bring this CPLR article 78 special proceeding to challenge respondents' decision to terminate 232 NYCHA employees and permit the letting of contracts by the City of New York to other entities to perform services that were previously performed by those NYCHA employees on the grounds that the respondents' decision violates Local Law No. 35 (1994) of the City of New...
OPINION OF THE COURT TOM, J. At issue on this appeal is the propriety of a request for bids (RFB) issued by respondent New York City Department of Education (DOE). The RFB invites bids for providing transportation between home and school to handicapped children participating in pre-K and early intervention (EI) programs. * Bids are required to be submitted "on a per rider per day basis" so that DOE can track transportation costs per child for purposes of its own reimbursement. DOE...
OPINION OF THE COURT BELEN, J. When the plaintiff's counsel in this medical malpractice action attempted to place a settlement on the record, the trial court directed him to do so after the jury verdict was taken. Defense counsel said nothing when the plaintiff's counsel tried to make this record of the settlement. When the verdict was rendered for an amount far in excess of the proposed settlement—nearly 10 times as much—defense counsel predictably moved to enforce the settlement, and the...
OPINION OF THE COURT FREEDMAN, J. This action arises from the unsuccessful attempt in 1999 by plaintiff Asher B. Edelman, an investor and financier, to acquire the French company Soci t du Louvre (SDL), whose primary assets included hotel chains, real estate, and luxury goods businesses. Edelman avers that he conducted extensive research to identify SDL as a company whose restructuring would benefit its shareholders. Defendant Starwood Capital succeeded in acquiring SDL in 2005, and...
OPINION OF THE COURT FRIEDMAN, J. This appeal requires us to determine whether a federal statute, the Securities Litigation Uniform Standards Act of 1998 (Pub L 105-353, 112 US Stat 3227, codified in pertinent part at 15 USC 78bb [f] [SLUSA or the Act]), mandates the dismissal of fraud claims against an accounting firm asserted by plaintiff RGH Liquidating Trust (the RGH Trust) on behalf of the holders of bonds issued by Reliance Group Holdings, Inc. (RGH), a now-defunct insurance...
OPINION OF THE COURT CATTERSON, J. "`An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority ... A few instances will suffice to explain what I mean ... [A] law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with SUCH powers; and, therefore, it cannot be presumed that they have done it. The...
OPINION OF THE COURT ROSE, J.P. Plaintiffs' son, who was born in 2003, suffers from severe physical and behavioral disabilities associated with a rare brain abnormality known as Joubert syndrome. They commenced this medical malpractice action alleging that defendants negligently failed to detect their son's condition before his birth and that, if they had been informed of it early enough, they would have terminated the pregnancy. Defendants moved for summary judgment dismissing the action on...
OPINION OF THE COURT JANE S. SOLOMON, J. Motion sequence numbers 001 and 002 are consolidated for disposition. In motion sequence number 001, petitioners, Metropolitan Taxicab Board of Trade (MTBOT), Midtown Car Leasing Corp. (Midtown), Ronart Leasing Corp. (Ronart), and Linden Maintenance Corp. (Linden), move, pursuant to CPLR article 78, to annul, vacate and set aside the New York City Taxi & Limousine Commission (TLC)'s rules, passed on March 26, 2009, which impose, among other things, a...
OPINION OF THE COURT Per Curiam. Respondent Carlyet D. Marshburn was admitted to the practice of law in New York by the Second Judicial Department on December 23, 1981, under the name Carlyet Dannie Marshburn. At all times relevant herein, respondent has maintained an office for the practice of law within the First Judicial Department. The Departmental Disciplinary Committee now moves pursuant to 22 NYCRR 603.4 (d) and 605.15 (e) (2) to disaffirm that part of the Hearing Panel's...
OPINION OF THE COURT CATTERSON, J. The instant appeal arises from events that the Wall Street Journal in January 2007 described as "the biggest hedge fund failure ever." To stem billions of dollars in losses in 2006, Amaranth LLC executed trades to transfer its high-risk positions to the parent company of its clearing broker, J.P. Morgan, which received substantial benefits from the transaction. Both parties appeal from portions of an order that, inter alia, dismissed Amaranth's claims for...
OPINION OF THE COURT NICHOLAS FIGUEROA, J. In this contested CPLR article 75 proceeding, petitioner seeks to stay an arbitration under section 7503 (b) of the CPLR. As his ground for such relief, petitioner claims that he never agreed to arbitrate. Such a ground is, of course, the type of threshold issue that is for the court to resolve, rather than the arbitrator ( Cooper v Bruckner, 21 A.D.3d 758 , 759 [2005]). The underlying facts are not disputed. In early 2007, petitioner retained two...
