2009 and prior
Aldridge v. Brodman v. Kaleida Health
Index No. 2003-10120 (Sup. Ct. Erie Co. June 17, 2009)
Motion to dismiss Third-Party Complaint seeking indemnification and/or contribution granted in part and denied in part.
Broadway Rinks Ltd. Partnership v. Assessor, Town of Cheektowaga and The Board of Assessment Review of the Town of Cheektowaga
Index Nos. 2006-6551, 2007-7149, 2008-8045 (Sup. Ct. Erie Co. June 18, 2009)
Decision following trial of three (3) tax certiorari petitions reducing assessment and directing refunds.
Index No. 2008-868 (Sup. Ct. Erie Co. April 21, 2009)
Motion to dismiss causes of action for breach of the implied covenant of good faith and fair dealing, tortious interference with prospective economic advantage and prima facie tort granted.
County of Erie v. Abbott Laboratories, Inc. et al.
Index No. 2439/2005e
Granting in part defendants' motion pursuant to CPLR 3126 based upon plaintiff's failure to timely institute a litigation hold.
DiPizio Construction Co., Inc. v. Niagara Frontier Transportation Authority
Index No. 2009-1203 (Sup. Ct. Erie Co. December 18, 2009)
Motion to dismiss a “constructive acceleration” claim as being barred by the terms of the contract’s “no damage for delay” clause, together with a claim for additional material costs associated with the delay, granted with leave to replead.
EGW Temporaries, Inc. v. RLI Insurance Co. v. Titan Wrecking
Index No. 2006-9010 (Sup. Ct. Erie Co. December 7, 2009)
Decision following a non-jury trial reforming a payment bond based upon mutual mistake and granting judgment to a subcontractor thereon.
Ellicott Group LLC v. State of New York
Index No. 2009-10684 (Sup. Ct. Erie Co. September 25, 2009)
Application for a preliminary injunction denied for failure to demonstrate irreparable harm in an action seeking a declaration that the State of New York Executive Department Office of General Services lacks statutory authority to require that the “prevailing wage” be paid for work done on privately owned and leased premises.
Empirian Dockside, LLC v. Dockside Village, LLC
Index No. 2008-1212 (Sup. Ct. Erie Co. May 18, 2009)
Pursuant to the terms of the parties’ agreement, plaintiffs’ motion for summary judgment declaring that plaintiffs had no further obligation to close on the property and for the return of their deposit granted; defendants’ motion for summary judgment (a) limiting damages to the amount of the escrow deposit, (b) dismissing the cause of action for specific performance and canceling the Notice of Pendency, and (c) dismissing the cause of action for fraud also granted.
Erie County Sheriff’s Police Benevolent Association v. County of Erie
Index No. 2008-4274 (Sup. Ct. Erie Co. May 26, 2009)
Motion for summary judgment on liability for breach of contract granted.
George v. Erie & Niagara Insurance, et al.
Index No. 2003-10023 (Sup. Ct. Erie Co. June 18, 2009)
Plaintiffs’ motion for summary judgment for indemnification of a default judgment against an insured as the assignee of the rights of the insured granted and defendant’s cross-motion for summary judgment dismissing the complaint denied.
George v. Healthnow New York, Inc., et al.
Index No. 2004-4661 (Sup. Ct. Erie Co. July 28, 2009)
Motion to dismiss complaint granted, dismissing causes of action for tortious interference with contracts, tortious interference with prospective economic advantage, and under Public Health Law § 4406-d and Insurance Law § 4803.
Glen Phillippi Lumber Co., Inc. v. Hawk
Index No. 2009-227 (Sup. Ct. Erie Co. December 21, 2009)
Motion to vacate default judgment granted.
Iannello v. New York State Unified Court System/Office of Court Administration
Index No. 2008-8994 (Sup. Ct. Erie Co. March 4, 2009)
Motion to dismiss complaint granted, dismissing causes of action for declaratory judgment and recovery of back wages and costs, since the only cause of action properly before the Court was barred by the doctrine of res judicata and the remaining causes of action could be asserted only in the Court of Claims.
Inter-Community Memorial Hospital, et al. v. The Hamilton Wharton Group, Inc., et al.
Index No. 133991 (Sup. Ct. Niagara Co. December 23, 2009)
Motion granted dismissing all causes of action in the Complaint and Amended Complaint concerning a Workers’ Compensation group self-insurance trust, with leave to replead causes of action for negligence and indemnification.
Legacy Health Care v. Commissioner of Assessment and Taxation of the City of Buffalo and The Board of Assessment Review of the City of Buffalo
Index No. 2008-3317 (Sup. Ct. Erie Co. March 6, 2009)
Motion to dismiss tax certification petition denied, as the RPTL § 1573 reassessment performed by respondent constituted an exception under RPTL § 727 sufficient to lift the moratorium of RPTL § 727.
McGuire Children, LLC, et al. v. Huntress, et al.
Index No. 2004-1999 (Sup. Ct. Erie Co. June 17, 2009)
Following a non-jury trial, the court dismissed plaintiff’s fraud cause of action on the grounds that the sophisticated plaintiff had failed to establish justifiable reliance but found that defendant had breached his fiduciary duties to plaintiff as managing director of an LLC and fellow member in the LLC. The court held that the defendant’s fiduciary duties, which were similar to those owed between partners, arose under common law as opposed to from LLC Law Section 409(a) which sets forth the “business judgment rule”. The court further held that reliance was not an element of a cause of action for breach of fiduciary duty and a person to whom such a duty is owed is under no obligation to conduct his/her own investigation of the facts.
M&T Bank Corp. v. Gemstone CDO VII, LTD., et al.
Index No. 2008-7064 (Sup. Ct. Erie Co. April 7, 2009)
Pre-answer motions to dismiss granted in part and denied in part where plaintiff seeks recovery of more than $82 million of losses allegedly suffered through the “fraud and other wrongful conduct” of the defendants arising out of the purchase of two promissory notes which were part of a derivative security known as a “collateralized debt obligation” (“CDO”). The Complaint contains causes of action against multiple defendants for common law fraud, aiding and abetting common law fraud, negligent misrepresentation, breach of fiduciary duty, aiding and abetting breach of fiduciary duty, breach of contract, violations of general business law §§ 349 and 350, rescission of contract (on the theories of fraud, mistake and/or illegality), and unjust enrichment.
Rocchio v. Leas-Co Leasing Inc., et al
Index No. 2006-8848 (Sup. Ct. Erie Co. June 30, 2009)
Plaintiffs’ motions for partial summary judgment denied and defendants’ motions for summary judgment granted in part dismissing causes of action for diversion of profits and dividends, breach of fiduciary duty with respect to a testamentary trust, conversion of trust assets, breach of fiduciary duty related to Uniform Gifts to Minors/Uniform Transfers to Minors Act accounts and conversion of assets in the UGMA/UTMA accounts.
Roswell Park Cancer Institute Corp. v. Sodexho America, LLC, et al.
Index No. 2007e-2862 (Sup. Ct. Erie Co. March 11, 2009)
Following an in camera review of documents identified by defendants as privileged, request for production granted in part and denied in part based upon assertion of the attorney work product privilege, the attorney-client privilege and/or the “materials prepared in anticipation of litigation” privilege.
Sicilia Construction Company, Inc. v. Masters Edge, Inc., et al.
Index No. 2004-258 (Sup. Ct. Erie Co. December 9, 2009)
Decision following a non-jury trial granting judgment for non-payment on a construction project and granting judgment against Masters Edge and three individuals, jointly and severally, for a violation of the Lien Law trust provisions of Article 3-A of the New York Lien Law.
SPS Temporaries, Inc. v. Washington Mutual Bank, et al.Index No. 2007-8712 (Sup. Ct. Erie Co. April 7, 2009)
Motions to dismiss granted in part insofar as Plaintiff asserted causes of action for conversion based upon checks deposited more than three (3) years prior to the commencement of the action, but otherwise denied as to claims for money had and received, conversion, and pursuant to UCC § 3-419 (1).
State Ex Rel. Kevin Grupp and Robert Moll v DHL Express (USA), Inc.
Index No. 4821/08e State False Claims Act cause of action not pre-empted by Airline Deregulation Act (49 USC § 41713) or Federal Aviation Administration Authorization Act (49 USC § 14501)
10 Ellicott Square Court Corp., et al. v. Violet Realty, Inc., et al.
Index No. 2008-7591 (Sup. Ct. Erie Co. December 21, 2009)
Motion to dismiss and for summary judgment granted, dismissing causes of action for tortious interference, malicious prosecution, abuse of process, prima facie tort and attorneys fees.
Zazynski v. Empire State Financial Group, LLC, et al.
Index No. 2008-520 (Sup. Ct. Erie Co. March 6, 2009)
Defendant Falkowitz’s motion to dismiss causes of action for scheme to defraud/fraudulent inducement, fraud and/or misrepresentation, breach of contract, and breach of fiduciary duty granted based upon expiration of the statute of limitations.
Decisions of Interest - May 2008 - January 2009
Billlings v. Bridgepoint Partners, LLC, 21 Misc. 3d 535
Index No. 2007-7898 (Sup. Ct. Erie Co. September 19, 2008)
Motion to dismiss derivative causes of action granted. Following the analysis of Tzolis, since petitioner was not a member of the LLC at the time of commencement of the action, he did not have standing to pursue derivative claims.
Brian M. Cavanaugh v. Canisius College
Index No. 4495/07 (Sup. Ct. Erie Co. December 1, 2008)
Motion to compel granted in part and denied in part based upon assertion of the attorney-client privilege following an in camera review.
Dick Road-Blend All v. Cipolla, et al.
Index No. 4236/08 (Sup. Ct. Erie Co. May 30, 2008)
Motion for injunctive relief based upon violation of a contractual agreement granted following a hearing.
Dick Road-Blend All v. Cipolla, et al.
Index No. 4236/08 (Sup. Ct. Erie Co. January 26, 2009)
Motion for contempt based upon violation of an injunction order conditionally granted following a hearing.
Index No. 2007-7983 (Sup. Ct. Erie Co. September 10, 2008)
Motion to dismiss pursuant to Town Law § 65(3) granted, in part, for failure to timely file notices of claim.
Paul Rosa, Inc. v. Valley Forge Insurance Company
Index No. 5425/07 (Sup. Ct. Erie Co. January 26, 2009)
Motion for summary judgment granted in part as to liability for loss of business income and extra expense under a “Civil Authority” provision of a commercial insurance policy for store closings during the October 2006 storm.
Pino Alto Partners v. Erie County Water Authority, 21 Misc. 3d 1114A
Index No. 2006-11957 (Sup. Ct. Erie Co. October 15, 2008)
Motion for class certification granted in part.
Rice v. Miller, 21 Misc. 3d 573
Index No. 2007-1668 (Sup. Ct. Erie Co. August 28, 2008)
Motion seeking to compel turnover of patents granted upon condition that no interest in the patents shall be sold, transferred, used as collateral or otherwise disposed of absent further order of the Court.
Scheuller v. The Crosby Company
Index No. 2005-10228 (Sup. Ct. Erie Co. September 17, 2008)
Summary judgment granted dismissing causes of action for breach of contract (sales representative agreement) based upon termination of the agreement and rejecting theories of promissory estoppel, equitable estoppel and waiver to extend the expired agreement.
VITEC Solutions, LLC v. IKON Office Solutions, Inc.
Index No. 2005-8005 (Sup. Ct. Erie Co. November 24, 2008)
Partial summary judgment denied on breach of contract and fraudulent inducement causes of action in connection with the sale of a business.
Decisions of Interest - January 2007 - April 2008
Index No. 2003-10120 (Sup. Ct. Erie Co. March 28, 2008)
Summary judgment granted as to declaratory judgment cause of action pursuant to CPLR § 3001 for failure to present a justiciable controversy. Summary judgment denied as to causes of action for unfair trade practices and tortious interference with business relationships/prospective relationships for movant’s failure to meet initial burden.
Boyle v. Elfin Properties, LLC
Index No. 2006-9675 (Sup. Ct. Erie Co. June 18, 2007)
Summary judgment granted dismissing cause of action for breach of fiduciary duty and denied as to cause of action for breach of contract. Motion to amend to assert cause of action for fraud denied.
Index No. 2002-1816 (Sup. Ct. Erie Co. July 13, 2007)
Motion of the United States of America for permission to intervene for the purpose of securing the release of a civil deposition transcript for use in cross-examination in a criminal trial denied.
Index No. 2006-681 (Sup. Ct. Erie Co. December 19, 2007)
Following a hearing, judgment granted to plaintiff for breach of duty of loyalty, breach of contract, and enforcing a restrictive covenant.
Index No. 2001-668 (Sup. Ct. Erie Co. May 2, 2007)
Summary judgment granted dismissing causes of action for breach of contract, fraud as premised on representations concerning the development and marketing of a product, and fraud and deceit as premised on representations concerning use of best efforts.
Index No. 2007-4476 (Sup. Ct. Erie Co. December 12, 2007)
Motion to vacate a default judgment granted.
Covanta Niagara, LP v. Town of Amherst Garbage and Refuse Dist. No. 1
Index No. 2007-1329 (Sup. Ct. Erie Co. June 6, 2007)
Motion to dismiss for failure to file a notice of claim pursuant to Town Law § 65 (3) granted.
Creative Collections of New York, Inc. v. DiBlasi
Index No. 2006-12455 (Sup. Ct. Erie Co. April 24, 2007)
Following a hearing, preliminary injunction granted for unfair competition and, in part, enforcing a restrictive covenant.
EGW Temporaries, Inc. v. RLI Insurance Co.
Index No. 2006-9010 (Sup. Ct. Erie Co. July 3, 2007)
Motion to dismiss causes of action brought pursuant to a payment bond denied.
Flaum v. Assessor, Town of Amherst
Index No. 2007-7260 (Sup. Ct. Erie Co. April 29, 2008)
Respondents’ application in a tax certiorari proceeding to compel responses to discovery demands granted in part and denied in part.
Friedhaber v. Town Board of the Town of Sheldon
Index No. 38491 (Sup. Ct. Wyoming Co. September 18, 2007)
Petitioners’ application in an Article 78 for a preliminary injunction and to annul the actions taken by defendants denied. Petition dismissed.
Gouchie v. Creditors Interchange Receivable Management, LLC
Index No. 2007-8226 (Sup. Ct. Erie Co. March 28, 2008)
Motion to dismiss complaint pursuant to 3211(a)(1) and (a)(7) granted, dismissing causes of action for fraudulent inducement, breach of fiduciary duty and breach of contract/failure of consideration.
HSBC Bank USA v. Bond Schoeneck & King, PLLC
Index No. 2005-11108 (Sup. Ct. Erie Co. June 4, 2007)
Granted in part and denied in part pre-answer motions to dismiss pursuant to CPLR 3211(a)(1), (5) and (7), involving causes of action for contribution, indemnification, malpractice and negligent misrepresentation.
Janik Paving and Construction, Inc. v. Erie County Industrial Development Agency
Index No. 2006-1452 (Sup. Ct. Erie Co. March 3, 2008)
Following conversion of motion to dismiss, summary judgment granted dismissing engineer, and granted in part and denied in part ECIDA’s motion to dismiss causes of action for cardinal change, interference/disruption, delay damages and incidental/consequential damages.
Niagara Street Renovation, LLC v. Ciminelli International Services, LLC
Index No. 2006-12 (Sup. Ct. Erie Co. June 1, 2007)
Following an evidentiary hearing, determined fair and reasonable market value of real property.
Ottaviano v. GENEX Cooperative, Inc.
Index No. 1999-10365 (Sup. Ct. Erie Co. March 20, 2007)
Determined obligation to indemnify for attorneys’ fees and litigation costs.
Scarp Property Associates, LLC v. Temple Inland, Inc.
Index No. 2005-6093 (Sup. Ct. Erie Co. February 14, 2008)
Summary judgment granted dismissing causes of action for breach of contract and unjust enrichment. Cross-motion to amend denied.
Sheridan Development Associates, Inc. v. Assessor for the Town of Tonawanda
Index No. 2007-6777 (Sup. Ct. Erie Co. January 7, 2008)
SRK Colvin Eggert Plaza Associates, LP v. Assessor for the Town of Tonawanda
Index No. 2007-6779 (Sup. Ct. Erie Co. January 7, 2008)
Denied motions to dismiss petition brought on the ground that petitioner willfully refused to provide information requested by the Board of Assessment Review.
Superior Technical Resources, Inc. v. Lawson Software, Inc.
Index No. 2003-10104 (Sup. Ct. Erie Co. December 7, 2007)
Summary judgment granted on causes of action for unjust enrichment, promissory estoppel, and General Business Law § 349. Summary judgment denied on causes of action for fraud in the inducement, disclaimers of warranties and contractual limitations of damages.
The Uniland Partnership of Delaware, LP v. Blue Cross of Western New York, Inc.
Index No. 2006-4961 (Sup. Ct. Erie Co. June 15, 2007)
Granted motion to dismiss pursuant to CPLR 3211(a)(1) and (5) on the grounds of res judicata and collateral estoppel.