The Law Office of Aaron M. Schlossberg, Esq, PLLC

The Law Office of Aaron M. Schlossberg, Esq, PLLC New York Business and Commercial Law Attorneys New York Business and Commercial Law Attorneys.

Complex disputes deserve creative counsel that can offer unique perspectives and highly effective solutions. Individuals, entrepreneurs and business owners owe it to themselves to seek out representation with the requisite skills and experience to implement innovative as well as conventional strategies.

03/22/2017

Denial of Motion to Renew Affirmed

In an action by a provider to recover assigned no-fault benefits, Queens County Civil Court denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for a stay of the proceedings finding that there was a question of fact as to whether plaintiff’s assignor had been injured during the course of his employment. Thus, the matter was to be submitted to the Workers’ Compensation Board. When, approximately 21 months later, the plaintiff had failed to file with the Workers’ Compensation Board, the defendant moved to dismiss the complaint. The plaintiff cross-moved for leave to renew its motion for summary judgment “based on new facts not offered on the prior motion that would change the prior determination.” CPLR 2221(e)(2). In support of its motion, plaintiff offered an affidavit of a paralegal who stated that a search for the plaintiff’s assignor’s name in the Board’s database confirmed that plaintiff’s assignor never made an application for worker’s compensation benefits in the first instance. Plaintiff asserted that this “new evidence” established that the matter was not subject to the Board’s jurisdiction. The Civil Court found plaintiff’s arguments unavailing and granted defendant’s motion to dismiss. Finding that the alleged “new facts” offered by plaintiff did not suffice were not enough to demonstrate that the court would have changed its prior determination, the Appellate Term ruled that the Civil Court properly denied plaintiff’s motion for leave to renew and affirmed the dismissal of the complaint.

Flatbush Chiropractic, P.C. v. American Transit Ins. Co., 2015-1649 Q C, NYLJ 1202780198785, at *1 (App. Tm., 2nd, 2017) (internal citations omitted)

The Law Office of Aaron M. Schlossberg, Esq., P.L.L.C.

(This writing is for general information purposes only, should not be construed as legal advice and does not establish an attorney-client relationship)

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03/08/2017

Registration Alone Does Not Confer Jurisdiction

In an action commenced in the Southern District of New York, plaintiffs alleged that Whirlpool, Lowes, Home Depot and Sears (collectively “defendants”) misrepresented the water and energy efficiency of three models of Whirlpool’s Maytag washing machines. The defendants, all foreign corporations with their principal places of business in states other than New York, moved to dismiss under FRCP 12(b)(2) for lack of personal jurisdiction.

An inquiry into whether personal jurisdiction exists over a non-domiciliary defendant requires a two-step analysis. First, the court must determine “whether the forum state’s laws permit the exercise of jurisdiction over” the defendant. Next, the court must “analyze whether personal jurisdiction comports with the Due Process Clause of the United States Constitution.” Courts may exercise two types of personal jurisdiction over foreign corporate defendants: specific jurisdiction, which “exists in a suit arising out of or related to the defendant’s contacts with the forum” state; and general jurisdiction, which allows a court to “adjudicate any cause of action against the corporate defendant, wherever arising” as long as the corporation’s “affiliations with the State... render [it] essentially at home in the forum State.” For the purposes of general jurisdiction, “[a] corporation is essentially at home in the state of incorporation and the state of its principal place of business.”

In this case, none of the defendants was incorporated in or maintained its principal place of business in New York. However, plaintiffs asserted that each defendant was subject to general personal jurisdiction in New York “because defendants have registered with the New York Department of State and have designated an agent to receive process in New York” and have thus essentially consented to jurisdiction in New York State. Observing that the consent-by-registration theory currently has an unclear constitutional status, the court “decline[d] to decide here whether consent to general jurisdiction via a registration statute” would be enough to confer such an “expansive exercise of general jurisdiction.”

Famular v. Whirlpool Corp., 16 CV 944, NYLJ 1202777603278, at *1 (S.D.N.Y. 2017) (internal citations omitted)

The Law Office of Aaron M. Schlossberg, Esq., P.L.L.C.

(This writing is for general information purposes only, should not be construed as legal advice and does not establish an attorney-client relationship)

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01/11/2017

Request to Dissolve LLC Denied

The petitioner in Matter of Norvell v. Guchi's Idea LLC, Index No.: 513623/2016, owned a 25% share in a high-end Japanese restaurant in Williamsburg, Brooklyn. Petitioner moved the Court for an Order of dissolution of the LLC that operated the restaurant and further sought an accounting of corporate funds and a preliminary injunction prohibiting the respondent from transacting any business outside of the restaurant’s normal course of business or from making any distribution of corporate monies. Petitioner alleged that there was no operating agreement, that respondent wasted and looted the company’s assets and that as a result of their “hopeless[] deadlock[], [the restaurant] can no longer function as intended and that dissolution is therefore necessary.” Respondent asserted that petitioner did not provide any capital contribution for the 25% interest in the company and was previously fired due to her failure to perform duties and ongoing conflict with other staff members. Respondent further alleged that the restaurant had flourished since petitioner’s departure and the “deadlock” alleged by petitioner is illusory given that respondent is the majority owner of the restaurant and thus able to make all necessary decisions. The Court found that it was reasonably practicable to carry on the business because “[t]he evidence before the Court indicates that both the purpose [of the restaurant], and its financial viability are being achieved” and petitioner’s displeasure with respondent’s operation of the restaurant is insufficient to warrant dissolution of the partnership. Although the Court granted petitioner’s request for a preliminary injunction, it denied her request to dissolve.

The Law Office of Aaron M. Schlossberg, Esq., P.L.L.C.

(This writing is for general information purposes only, should not be construed as legal advice and does not establish an attorney-client relationship)

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01/04/2017

Reversed Based on Possible “Special
Relationship” and No Governmental Immunity Defense

Defendant fire department responded to a fire at a private residence. Ultimately, the fire department’s lead investigator informed the plaintiffs that the fire was extinguished and that it was safe to enter the residence. Plaintiffs removed some belongings and then left to spend the night with relatives. Several hours later, the fire reignited and destroyed the home. Plaintiffs sued the fire department seeking to recover damages for the loss of the building, and the Supreme Court granted the fire department’s motion to dismiss finding that plaintiffs failed to establish the existence of a special relationship giving rise to a duty of care and that defendants were entitled, in any event, to governmental immunity from liability. The Third Department reversed, holding that plaintiffs’ complaint raised a triable issue of fact as to whether the elements necessary to show a special relationship were present. The Third Department further held that governmental immunity defense is “only available when the conduct giving rise to the claim is related to an exercise” of governmental discretion. Here, the facts revealed that the cause of the second fire was the fire department’s failure to remove and fully extinguish a stack of firewood and lawn furniture, and was not the consequence of an actual decision on the part of the defendant.
Trimble v. City of Albany, 523023, NYLJ 120277463247, at *1 (3rd Dept. 2016).

The Law Office of Aaron M. Schlossberg, Esq., P.L.L.C.

(This writing is for general information purposes only, should not be construed as legal advice and does not establish an attorney-client relationship)

12/28/2016

Cure Period Required

As we have seen time and time again, New York landlords must navigate multiple procedural rules when asserting claims against their tenants. Prior to commencing an action based on nuisance conduct against respondent tenant, the petitioner landlord in Second Housing Co., Inc. v. Davis, Index No.: 60698/16, served the tenant with two predicate notices: A Notice to Cure and a Notice to Terminate. Both Notices delineated over forty specific instances of nuisance. The tenant moved to dismiss, asserting that the predicate notices were defective because the termination notice did not allege any incidents of misconduct after the expiration of the cure period and “the notice to cure is facially ambiguous in that it states both that the alleged misbehavior must be cured and that it is not curable.” Judge Pinckney dismissed the complaint because even though the complaint stated a claim upon which relief could be granted, the Notice to Terminate was devoid of any alleged specific conduct that occurred after the March 23, 2016 cure date.

(internal citations omitted)

The Law Office of Aaron M. Schlossberg, Esq., P.L.L.C.

(This writing is for general information purposes only, should not be construed as legal advice and does not establish an attorney-client relationship)

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12/21/2016

Supreme Court Grants Stay of Action Pending
Dispositive Decision From Appellate Division

The petitioner in Level 3 Communications, LLC v. Essex County, Index No.: CV15-0009, commenced an Article 78 proceeding against the County seeking an Order from the Supreme Court that it was entitled to a refund of real property taxes. That action was stayed pending a decision from the Appellate Division, Third Department involving the same parties and the same issues. In June 2015, the Third Department ultimately decided the case in the County’s favor. The stay was terminated but the petitioner refused to withdraw the action based on the Third Department’s unfavorable decision. Petitioner then applied for a further stay acknowledging that the Third Department’s decision would warrant dismissal of the action, were it not for a subsequent Court of Appeals decision which could arguably impact the Third Department’s decision.
A stay pending a higher court’s ruling should be entered sparingly and only when the “point of law involved in the case, and potentially dispositive of it, is about to be definitively decided in another case” and only when that decision is imminent. Finding that these factors were met here, the Supreme Court allowed a further stay of the proceeding but cautioned that if the case pending in the Third Department did not conclusively overrule the relevant portions of the June 2015 decision then the complaint would be dismissed.

(internal citations omitted)

The Law Office of Aaron M. Schlossberg, Esq., P.L.L.C.

(This writing is for general information purposes only, should not be construed as legal advice and does not establish an attorney-client relationship)

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12/14/2016

Judge Declines to Grant Preliminary Injunction
Where Plaintiff Failed to Show Irreparable Harm

The Plaintiff in Step One Underground Productions Ltd. v. 150 RFT Varick, Inc. (Index No.: 161633/2014), a former DJ at a downtown nightclub, sought a preliminary injunction enjoining the nightclub’s owners from selling, transferring or otherwise disposing of audio and light equipment he alleged belonged to him. The nightclub owners refuted plaintiff’s claims asserting not only that plaintiff had already removed all of his own property, but also that the property at issue did not belong to him. To be entitled to a preliminary injunction, plaintiff must establish (1) a likelihood of success on the merits of the underlying claim; (2) irreparable injury if the provisional relief is denied; and (3) a balance of the equities in its favor. The function of injunctive relief is “not to determine the ultimate rights of the parties, but to maintain the status quo until there can be a full hearing on the merits.” Justice Kenney held that plaintiff failed to satisfy his burden of showing that he would suffer irreparable harm beyond economic loss, which is compensable by money and thus does not constitute irreparable harm. Moreover, the conflicting assertions by both parties raised sharp issues of fact rendering injunctive relief inappropriate.

(internal citations omitted)

The Law Office of Aaron M. Schlossberg, Esq., P.L.L.C.

(This writing is for general information purposes only, should not be construed as legal advice and does not establish an attorney-client relationship)

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11/23/2016

Unclean Hands Results in Stay of Eviction

In the September 2016 decision entered in Nycha - Gowanus Houses v. Encarnacion (Index No.: L&T 14005/15), Justice Chinea granted a tenant’s motion for a further stay of ex*****on of a warrant of eviction based upon evidence that the tenant’s breach of a stipulation of vacatur was induced, in part, by misrepresentations by the landlord. The tenant was unrepresented at the time she entered into the stipulation wherein she agreed to vacate the premises and pay past due use and occupancy. In her supporting papers, the tenant asserted that she did not read the stipulation at the time she signed it because she is not fluent in English and relied on the advice of her then-husband that the purpose of the document was for her to continue living in the apartment and paying rent. The tenant further asserted that the landlord had contacted her and indicated that she did not need to vacate the apartment because the eviction was on hold. In reply, the landlord failed to contradict the tenant’s statement and instead relied solely on RPAPL §753(1) to assert that the Court was limited to a six-month maximum stay of ex*****on, which had already expired. Holding that RPAPL §753(1), which establishes that the court may stay the issuance of a warrant and also stay any ex*****on to collect the costs of the proceeding for a period of not more than six months, applies to the issuance of the warrant, not to its ex*****on, the court ruled in the tenant’s favor.

The Law Office of Aaron M. Schlossberg, Esq., P.L.L.C.

(This writing is for general information purposes only, should not be construed as legal advice and does not establish an attorney-client relationship)

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