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SUMMER 2005 • Vol. XLII
- We are Litigation Lawyers
- Get to Know the Litigation Department
- Summer 2005 Calendar Calls

Summer 2005 Calendar Calls

In each FCSMCC newsletter we publish updates (calendar calls) on legal cases handled by the firm. Given this issue's focus on our Litigation Department, we begin there and end with briefs on those matters that have involved multiple FCSMCC practice areas -- demonstrating the full, comprehensive representation available to our clients.

The Litigation Department

Donald Jay Schwartz successfully:

  • Opposed an employer's motion for a preliminary injunction, which claimed that our clients, former employees, had breached a non-competition agreement. Mr. Schwartz was further successful in obtaining summary judgment dismissing all causes of action naming our clients in their individual capacities. The matter is pending in the Queens County Supreme Court.

  • Opposed a motion for a preliminary injunction seeking to prevent our client from using leased property as a transload facility in order to offload materials from trucks onto railroad cars and obviate local trucking congestion. Joseph Nocella, Jr., representing a major homebuilder and real estate contractor, successfully tried a construction defect case in the Supreme Court, Commercial Division, and on the third day of trial, obtained a favorable settlement for the defendant. Plaintiffs had rebuffed a much larger pre-trial settlement offer, expecting a more substantial dollar verdict from a jury of Nassau County homeowners potentially biased against contractors. Mr. Nocella moved to strike the jury demand to avoid any such juror bias. On cross-examination, two plaintiffs' witnesses were forced to admit making false statements about alleged construction costs and defects. Shortly thereafter, plaintiffs accepted a vastly reduced settlement offer.

Richard A. Blumberg successfully settled:

  • Litigation brought against our clients, Coles House,
    LLC and Colandra Ltd., in the Nassau County Supreme Court resulting in the Court setting aside a tax deed that had been obtained by a tax lien purchaser and restoring title to the premises to our clients.

  • A real estate litigation matter brought against our client, South Bay Landing Associates, LLC, in the Suffolk County Supreme Court wherein the Court denied the purchaser's motion for the return of her down payment with respect to an aborted real estate transaction. This decision resulted in a favorable settlement to our client.

  • Various commercial landlord/tenant disputes on behalf of our client, the Treeline Companies.

  • A commercial litigation action brought by our client, Steel Equities, against certain defendants based upon their failure to properly prepare and apply an epoxy coating system to the floor of Plaintiff's property.

  • He also obtained permission from the Nassau County Supreme Court allowing our client, The Long Island Mar Thoma Church at 2350 Merrick Avenue in Merrick, NY, to obtain a mortgage to be used for renovation of its church.

Andrew E. Curto successfully:

  • Prosecuted a sexual harassment case filed under, inter alia, Title VII of the Civil Rights Act of 1964.

  • Obtained a $155,000 settlement for a client of the firm who was the victim of sexual harassment. The young woman had been employed for three months by the defendant and subjected to both verbal and physical abuse.

  • Prevailed on an appeal to the Appellate Division, Second Judicial Department, seeking the reinstatement of claims against the wife of a judgment debtor. The initial claims filed in Supreme Court in Suffolk County, alleged that the wife of the judgment debtor had been the recipient of monies fraudulently transferred by her husband. The suit sought to impose a constructive trust and otherwise cause the return of the monies. The lower court in response to a motion for summary judgment improperly dismissed the claims. However, on appeal the appellate court found that the lower court had erred and reversed the lower court's decision restoring the claims against the wife.

  • Secured the dismissal of claims filed by a shareholder of a cooperative apartment complex. The shareholder asserted multiple acts of wrongdoing and self-dealing by the Board of Directors. The court, ending the action, dismissed all claims filed against the Board.

Land Use and Zoning
Judy Simoncic Jacoby obtained Nassau County Planning Commission preliminary subdivision approval for a 308- unit senior citizen housing development for our client, The Oaks at Broadlawn Manor.

The Corporate & Commercial Department
Anthony V. Curto, representing Powerscreen New York, Inc. -- a privately owned company which sold and distributed sand and gravel, screening and conveying equipment -- successfully closed on the sale of substantially all of the assets of the Company. This transaction was self-executing, wherein, all documents, including the Asset Purchase Agreement, were executed at closing, January 26, 2005.

Barbara Shaheen Alesi, representing Swezey-Glen Cove Holding LLC, successfully closed the $5,000,000.00 sale of its School Street, Glen Cove, building that once housed a Swezey Department Store, to 18 School St. LLC, a company owned by the Yaraghi family, the owners of Savavieh Carpets.

Trusts & Estates Department

Terence E. Smolev tried a tax case for a client in the United States Tax Court involving inclusion of a partnership real estate asset in an estate for estate tax purposes. Decision is pending.

Tax Certiorari & Litigation Departments
John V. Terrana and Joseph Nocella, Jr. combined the talents of FCSMCC's tax certiorari and litigation departments in a defense of Goya Foods, Inc. FCSMCC proved that Nassau County's assessment of Goya's property was inflated and Goya received over $700,000.00 in credits as compensation for years of making excess payments. Because these credits are to be applied against Goya's future assessed payments-inlieu- of-taxes, the Bethpage School District filed a Complaint and three separate Orders to Show Cause to prevent Goya from applying the credits. On May 16, 2005 the Court issued a decision stating that Goya must be allowed to use its' credits as compensation for past overpayments and indicated that this case amounts to a dispute between Nassau County and the Bethpage School District over which entity ought to bear the financial burden of Goya's undisputed right to compensation. The case has been reported in The New York Law Journal and Newsday.

Litigation, Corporate and Foreclosure Departments
Donald Jay Schwartz, Richard A. Blumberg, Anthony Barton, and James Cantanno worked together on a complicated shareholder's derivative lawsuit that involved corporate, foreclosure, and landlord and tenant issues against three firm clients. In a 20-page decision, Justice Austin of the Commercial Division of the Nassau County Supreme Court granted our summary judgment motion and dismissed the shareholders derivative action in total against our clients.

Environmental, Corporate, and Real Estate
Brian R. Sahn, Anthony B. Barton and Janet Ganio represented the Right Track Self Storage Facility in Lindenhurst, New York on a refinance with Morgan Stanley Mortgage Capital Inc. for $3.85 Million. The transaction involved documenting the loan with the Town of Babylon Industrial Development Agency since the property is subject to IDA benefits.

Firm Awards, Appearances, Articles
Barbara Shaheen Alesi was recognized as a 2005 Top 50 Woman by Long Island Business News. She first received this award in 2001. John V. Terrana spoke before the Kiwanis club of Seaford on May10,2005 on"Challenging Your Real EstateTax Assessment." Warren S. Arthur, again, received the School Board Award of Excellence from SCOPE Education Services -- a not-forprofit education corporation founded in 1964 by school superintendents -- for his contributions as a trustee and as president of the Northport-East Northport School Board.

Aaron Gershonowitz bylined the article "Voluntary Remeditator Has No Cause of Action for Contribution" published in the March 16, 2005 New York Law Journal. It discussed the implications of the US Supreme Court's decision in Cooper Industries, Inc. v. Aviall Services, Inc., 125 S.Ct. 577, 2004 WL 2847713 (decided December 13, 2004), that held that one who voluntarily performs environmental remediation does not have a cause of action under the Superfund law against others who may have caused the contamination. The decision will have significant impact on how contaminated sites are remediated and how parties deal with State and Federal environmental claims.

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