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
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
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
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