DECISION BERNARD FRIED, Judge. It is ordered that this motion is decided in accordance with the attached memorandum decision. Motion sequence numbers 003 and 005 are consolidated for disposition. In motion sequence number 003, defendants move, pursuant to CPLR 3211 (a) (7), to dismiss the complaint, and for an order, pursuant to CPLR 3212, granting defendants partial summary judgment on their counterclaim for past due rent and additional rent for the period ending in February, 2009. In...
EILEEN BRANSTEN, J. Plaintiff MBIA Insurance Corporation ("MBIA") moves in limine for a decision allowing MBIA to use statistical sampling to present evidence to prove its causes of action for fraud and breach of contract and to prove damages. Defendants Countrywide Home Loans, Inc., Countrywide Securities Corp. and Countrywide Financial Corp. (collectively, "Countrywide") oppose. BACKGROUND The facts of this matter have been discussed extensively in previous decisions of this court. Thus,...
O. PETER SHERWOOD, J. Plaintiff Irina Krupnik ("plaintiff" or "Krupnik"), a former model, brings this action against defendants NBC Universal, Inc. and Universal City Studios LLLP (incorrectly sued as "Universal Studios, Inc." and "Universal Pictures Company, Inc." 1 ). Plaintiff objects to the inclusion of a photograph of herself in a brochure used during a scene in Couples Retreat, a PG-13 rated movie released by defendants. The photograph at issue depicts plaintiff in a bikini, and was...
EILEEN BRANSTEN, J. Defendants Countrywide Home Loans, Inc. ("Countrywide Home"), Countrywide Securities Corp. ("Countrywide Securities"), Countrywide Financial Corp. ("Countrywide Financial"), Countrywide Home Loans Servicing, LP ("Countrywide Servicing") (collectively, "Countrywide") and Bank of America Corp. ("Bank of America," together with Countrywide, "Defendants") move to dismiss the negligent misrepresentation, successor and vicarious liability, fraud and breach of the implied covenant...
BARBARA R. KAPNICK, J. This action arises from the collapse of two structured investment vehicles, Golden Key Ltd. ("Golden Key") and Mainsail II Ltd. ("Mainsail"), that defendants Barclays Bank PLC, which is registered in England, and Barclays Capital, Inc. (collectively, "Barclays"), created and structured in 2005 and 2006. 1 Golden Keyand Mainsail were highly leveraged investment funds (known as "SIV-Lites"), which were funded through the issuance of capital notes (a form of equity),...
PAUL WOOTEN, J. This action arises out of alleged wrongful conduct by defendants Iris Derke (Derke), Jonathan Griffith (Griffith), and Distinguished Concerts International, LLC (Distinguished Concerts), whereby it is alleged that defendants, inter alia, misappropriated proprietary and confidential materials belonging to plaintiffs and used them in starting a competing business. In motion sequence 011, the defendants move, pursuant to CPLR 3211, to dismiss the second amended complaint in...
OPINION OF THE COURT LUCY BILLINGS, J. Plaintiff, a New York attorney, sues defendants, all associated in various capacities with the television series Law & Order, for defamation arising from the depiction of a lead character in the "Floater" episode of Law & Order. He claims the episode was based on the scandal involving crimes by attorney Paul Siminovsky and Justice Gerald Garson, with which news media falsely had associated plaintiff, and cast an Indian-American of his age with the same...
SHIRLEY WERNER KORNREICH, J. Petitioner Glenn Storman moves to punish respondent Department of Education(DOE)for contempt for failure to comply with this court's judgment dated May 11, 2009 and entered May 13, 2009(Judgment). The motion is granted, unless the DOE purges its contempt in accordance with the order below. The Judgment in this Article 78 proceeding annulled a determination of the DOE, dated June 10, 2008, which found that petitioner, a school guidance counselor, had committed a...
OPINION OF THE COURT BARBARA JAFFE, J. By notice of petition dated July 28, 2010, petitioner seeks, pursuant to CPLR article 78, an order annulling and remanding the March 23, 2010 determination made by respondents denying his application to continue working as a mortgage loan originator (MLO). He also seeks an order compelling respondents to review his application for an MLO license under the criteria set forth in Correction Law 753 (1) and (2). By notice of cross motion dated September...
MARCY S. FRIEDMAN, J. This action arises out of a contract for the purchase and sale of real property located at 30 West 21st Street in Manhattan. Defendant-seller Flatiron 21 Associates, LLC ("Flatiron") moves for summary judgment dismissing the complaint of plaintiff-buyers, Downtown Realty Operating Corporation and Flatiron 21st Street, LLC (collectively "Downtown") for rescission, and for summary judgment on Flatiron's counterclaims for liquidated damages, abuse of process, and costs....
OPINION OF THE COURT BERNARD J. FRIED, J. Defendant GMAC Mortgage, LLC moves, pursuant to CPLR 3211 (a) (7), to dismiss counts I (fraud) and II (negligent misrepresentation) of the complaint arguing, inter alia, that these counts are insufficient because MBIA Insurance Corporation is a sophisticated monoline insurer, thereby obligating MBIA to perform due diligence with the mortgage information. GMAC also moves to dismiss count VI (breach of contract—good faith and fair dealing) of the...
OPINION OF THE COURT Per Curiam. Respondent was admitted to the practice of law by this Court on June 19, 2002. On October 28, 2009, respondent was convicted after a jury trial in the United States District Court for the Northern District of New York (District Court) of engaging in a conspiracy to defraud the United States in violation of 18 USC 371, a federal felony. On June 10, 2010, respondent was sentenced in District Court to a term of imprisonment of 44 months, followed by a three-...
OPINION OF THE COURT SMITH, J. At issue in this appeal is the New York rule against perpetuities (EPTL 9-1.1 [b]), and the exception to it that is set forth in Metropolitan Transp. Auth. v Bruken Realty Corp. ( 67 N.Y.2d 156 [1986]). This litigation arises from an agreement regarding the subject parcel of property between Marie-Louise Chase Tiffany, who was plaintiff's aunt and predecessor in interest, and defendant, who is a real estate developer. Tiffany owned * property consisting of...
EILEEN BRANSTEN, J. Plaintiff MBIA Insurance Corporation ("MBIA") moves in limine for a decision allowing MBIA to use statistical sampling to present evidence to prove its causes of action for fraud and breach of contract and to prove damages. Defendants Countrywide Home Loans, Inc., Countrywide Securities Corp. and Countrywide Financial Corp. (collectively, "Countrywide") oppose. BACKGROUND The facts of this matter have been discussed extensively in previous decisions of this court. Thus,...
OPINION OF THE COURT ACOSTA, J. In this appeal we are asked to consider whether a plaintiff is permitted to assert claims for both fraud and breach of contract where the fraud claim is based upon allegations that defendant induced plaintiff to enter into a contract based on a misrepresentation of present fact. We answer in the affirmative. In 2002, defendant, and his wife (collectively, the Levines), founded plaintiff corporation, which develops and sells tooth-whitening and oral hygiene...
OPINION OF THE COURT NARDELLI, J. The principal issue before us is whether an exception to the employment-at-will doctrine should be made for an employee who claims that his discharge violated his firm's Code of Ethics, because his superior retaliated against him for his internal inquiries into the superior's illegal trading activity. We hold that in this case such an exception does not exist and, in the absence of a specific contractual provision protecting plaintiff from termination, those...
DECISION and ORDER PAUL G. FEINMAN, J.S.C. Plaintiff moves "for an order pursuant to the [c]ourt's inherent powers and CPLR 2221 clarifying the [c]ourt's 6/30/08 [d]ecision." Defendants cross-move for costs and sanctions. For the reasons discussed below, the motion is denied and the cross motion is granted. The underlying facts of this case are fully set forth in a decision and order of this court dated October 1, 2009 (Doc. 2, at 120-134), which was affirmed by decision and order of the...
EILEEN A. RAKOWER, J. Plaintiff David Mitchell commenced this action to recover a $750,000 deposit from Defendant Steven Abrams based upon Abrams's alleged default on a personal guarantee. Presently before the Court are opposing motions by Mitchell and Abrams for summary judgment. On June 29, 2007, Mitchell entered into a contract (the "Agreement") with Fountainhead Construction, LLC ("Fountainhead") for renovation work to be done at Plaintiff's penthouse, located at 45 East 66th Street in...
OPINION OF THE COURT EILEEN BRANSTEN, J. Defendants Benjamin Shaoul, Marc Ravner, Lemadre Development, LLC and Magnum Management, LLC (the defendants) move to compel plaintiffs Blake and Tracy Silverman (the plaintiffs) to pay for costs of electronic discovery. Plaintiffs oppose. The parties are familiar with the facts of this matter, and therefore the facts are only discussed as necessary. Analysis Defendants move to compel plaintiffs to pay for the costs of "collecting, processing and...
OPINION OF THE COURT MERCURE, J.P. Petitioner Henkel Realty Associates is the owner of a 214-acre parcel of land in the Town of Nassau, Rensselaer County, upon which petitioner Troy Sand & Gravel Company, Inc. proposed to establish a quarry. In this combined proceeding pursuant to CPLR article 78 and action for, among other things, declaratory judgment, petitioners assert numerous claims relating to their allegations that respondents have undertaken, in bad faith, an extended course of...
