APPEAL: Res Judicata

In an appeal of a New York State Supreme Court matter, an argument was made that the Judiciary Law Claim filed against a former adversary was barred by Res Judicata.  The lower court disagreed and allowed us to amend our complaint.  By amending the Complaint, and supporting the Judiciary Law claim with further facts, the appeal became moot.

CIVIL RIGHTS: Gun Permit

In an ongoing case, Plaintiff an unemployed carpenter was a well known advocate in the community of Freeport against the hiring of illegal immigrants as day laborers. Upon visiting Congresswoman McCarthy’s office (something he had done dozens of times over the course of years) the office staff called the Nassau County Police Department. As a result, the Nassau County Police sent to his home the next day police from the Pistol License Section to confiscate his legally registered handguns and handgun license and longarms. Longarms are not required to be licensed in Nassau County New York. No charges were ever filed against Mr. Razzano, but he could not get his longarms returned, even though he was under no legal bar to buying new longarms.  Mr. Razzano sued Carolyn McCarthy for violation of his First Amendment Rights and the Nassau County Police Department for failing to return his longarms under the 14^th Amendment of the Constitution, Due Process Clause.

Rep. McCarthy was dismissed from the case, however Judge Spatt held that the Nassau County Police Department must enact a “meaningful post deprivation remedy”, or a hearing to place the burden on Nassau County on whether or not they may confiscate and retain longarms. “Nassau County shall have the burden of showing that it is likely to succeed in court on a cause of action…to maintain possession of the seized longarms”.

In the past, the gun owner had to sue under Article 78 of the CPLR to have the property returned. This case reverses this burden. Razzano v. County of Nassau, et al., Civil Action No. 07-CV-3983 (ADS)(AKT)

CONSTRUCTION: Unsigned Contracts & Substantial Performance

In 2005, an action was brought by a licensed home improvement contractor against a homeowner who was constructing a Mediterranean style mansion in Plandome Manor. The Homeowner and the contractor had a dispute regarding extra work which led to the termination of the contractor by the homeowner. At trial, the Court held that the homeowner did not follow the contract termination provisions  and give the contractor an opportunity to cure the alleged defects in work. (Three Day Written Notice).  The contractor was originally awarded only $3,413.00 after a lengthy trial.  After a motion made by La Reddola, Lester & Assoicates, LLP to appeal this decision, and after proving the completion costs due to the contractor should have been much more substantial than the $3,413.00 amount, the Judge agreed and modified This decision was later appealed by the homeowner and in December 2009 the Appellate Division, Second Department found in favor of the contractor and dismissed the homeowner's appeal with costs.  Emco Tech Construction Corp. v.Pilavas, et al., Index No. 017967/05 (Nassau County Supreme Court.)

CONSTRUCTION: Labor Law and Immigration

In 2006, Suffolk County passed legislation requiring contractors doing business with the County to certify compliance with federal law as to their employees' immigration status. In the one and only case of its kind, Suffolk County issued a fine against a contractor for over $30,000.00 for alleged non-compliance. In opposing the fine for its client, La Reddola, Lester & Associates not only found substantial errors in the computation of damages, but also argued that the County's law was an unconstitutional immigration statute.  Since the U.S. Congress is the only legislative body that may enact immigration related laws. Similar statutes enacted by local government have been found to be unconstitutional by the federal courts. The County subsequently reduced its fine to a mere $2,000.00, but La Reddola, Lester & Associates LLP continues to seek complete vindication for its client, the contractor. La Reddola, Lester & Associates LLP recently filed its Notice of Claim, a necessary step prior to the commencement of a lawsuit.

CONSTRUCTION: Civil RICO

In this Federal case the federal RICO statue known as the Racketeer Influenced and Corrupt Organizations Act 18 USC § 1962 was extended such that the court found that predicate acts of mail and wire fraud undertaken in furtherance of a larger scheme to defraud could be applied in order to survive a 12 B6 motion to dismiss among several cooperative corporations.  The Court found that open-ended continuity was found where the defendants were engaged in legitimate business if the predicate acts are part of the regular way in which the enterprise conducted their business. The Court also found that closed-ended continuity existed where other 17 month period of association was plead, a broader scheme involving numerous defrauded homeowners under numerous agencies could be connected together to establish the necessary standard for a substantial period of time.

In sum, in the Eastern District of New York there is no longer possible for an entity to repeatedly change names for a home improvement company to avoid liability under the Civil RICO statute by somebody closing down their business and opening a new business.

CONTRACT LAW: Principal-Agent

In July 2009, another of the firm’s commercial litigation decisions was published as a Decision of Interest in the New York Law Journal. In Afroze Textile Industries (Private) Limited v. Ultimate Apparel, Inc. v. Oxford International Business Corp., a clothing wholesaler and the law firm’s client, Defendant Ultimate Apparel, placed orders for clothing with Third-Party Defendant Oxford International. Unbeknownst to Ultimate Apparel, Oxford International procured production of the clothing with manufacturer Plaintiff Afroze Textile in Pakistan. The purchase orders between Ultimate and Oxford provided for transportation of the garments by sea vessel. However, when Afroze produced the clothing late, Oxford could not meet the “ship by” dates set forth in the purchase orders. Oxford suggested to Ultimate that instead of canceling the purchase orders, Ultimate should arrange for the shipment of the clothing by air freight, and deduct the higher shipping costs from the balance due to Oxford for the clothing. Ultimate accepted this modification of the purchase orders, and the clothes were shipped by air freight. Ultimate then settled its account with Oxford for the purchase orders.

Later, even though there was no agreement between Plaintiff Afroze and Ultimate, Afroze sued Ultimate for approximately $400,000, the balance it claimed was due for the clothing it produced that was eventually delivered to Ultimate through Oxford. Afroze brought claims against Ultimate for breach of contract, account stated and unjust enrichment. After the completion of discovery, Ultimate moved for summary judgment to dismiss the complaint in its entirety. The court granted Ultimate’s motion in part, and dismissed Plaintiff Afroze’s breach of contract claim. Since there was no direct agreement between Ultimate and Afroze, the only way Ultimate could be liable to Afroze would be if Oxford acted as Ultimate’s agent in placing the clothing orders. Ultimate was able to show the following uncontroverted facts: 1) Ultimate contracted with Oxford for the manufacture of the clothes; 2) Ultimate was unaware that Oxford contracted with Afroze to produce the clothes; and 3) Ultimate did not have any communications with Afroze at the time Oxford contracted with Afroze for the production of the clothes. As a result, the court concluded that Afroze failed to raise any genuine issues of fact as to whether Oxford acted as Ultimate’s agent and, therefore, dismissed Afroze’s breach of contract claim. Although the court did not dismiss Afroze’s account stated or unjust enrichment claim, the case settled for "nuisance value" because Afroze's required proof for the two remaining claims would be a difficult hurdle for it to meet at trial.  Afroze Textile Industries (Private) LImited v. Ultimate Apparel, Inc.

RELIGIOUS CORPORATIONS LAW: First Amendment Separation of Church & State

In a major litigation under the First Amendment and New York Religious Corporations Law involving a dispute over control of the Long Island temple of the International Society for Krishna Consciousness (ISKCON), the firm won the reversal of the lower court's dismissal of two of three of ISKCON's claims and the denial of its preliminary injunction motion. The firm represents the highest ecclesiastical authority in the ISKCON movement, the Governing Body Commission, which brought an action against various individuals who are advocating a heretical doctrine in the client's Long Island temple. The lower court dismissed ISKCON's claims for trespass and usurpation of corporate authority, holding that resolution of these claims would impermissibly require the court to become entangled in religious issues, which is barred by the First Amendment's Establishment Clause. On appeal, the Appellate Division, Second Department, reversed the lower court and accepted ISKCON's argument that the claims could be decided using neutral principles of law under the New York Religious Corporation Law and real property law principles, and without violating the U.S. Constitution's First Amendment Establishment Clause. The appellate court also granted ISKCON's motion for a preliminary injunction to prevent defendants from disposing of the property at issue. Kelley v. Garuda 36 A.D.3d 593, 827 N.Y.S.2d 293 (2d Dep't 2007).

CONTRACT LAW: Principal-Agent

In October 2002, one of the firm's appellate victories was featured in a front-page article in the New York Law Journal and the full text of the 19-page decision was published as the "Decision of the Day" in the Law Journal a few days later. The firm's clients, two elderly sisters, were defrauded out of their life savings by an agent of the Equitable Life Assurance Society. Although he had been fired by Equitable, it neither notified the sisters of the agent's termination nor retrieved his business cards, Equitable stationary and brochures. As a result, the fired agent was able to generate bogus account statements and give the sisters the impression he was still an Equitable agent. The lower court dismissed the sisters' case, finding that Equitable could not be held liable for the agent's post-termination acts unless Equitable had committed affirmative acts after the agent's termination that gave the impression that the agent continued to have authority as an Equitable agent. The Appellate Division, First Department, unanimously reinstated the sisters' claims. The appellate court accepted our argument that the sisters would be entitled to presume that the agent remained authorized to act for Equitable absent (i) notice that his authority had been revoked, or (ii) other circumstances that would have rendered it reasonable to believe that the agent had authority to act for Equitable. Parlato v. The Equitable Life Assurance Society of the United States, 299 A.D.2d 108, 749 N.Y.S.2d 216 (1st Dept. 2002). The claims were settled on favorable terms after the appellate decision.

TORT: Nuisance

Another of the firm's precedent-setting litigation victories was featured in a front-page article in the New York Law Journal, and the full text of the decision was published as a Decision of Interest in the Law Journal a few days later. The case involved a typical property dispute between next-door neighbors. The firm's clients' next-door neighbors introduced a particularly destructive form of bamboo onto their own property. The bamboo spread onto the clients' property and grew to encompass over a 500 square foot area. A lawsuit was commenced for nuisance and trespass. During the litigation, the bamboo spread onto the firm's clients' property to the extent that it threatened the clients' home's foundation, retaining wall and swimming pool. The firm advised the clients to commence immediately remediation of the bamboo to mitigate any further damages that may be caused by the bamboo, even though the defendants' attorney had not inspected the condition. The firm also advised defendants' counsel of the urgent need for him to inspect the condition of the premises. However, defendants' counsel did not respond to the firm's notice. By the time the defendants' attorney inspected the clients' property, most of the bamboo had been removed to a dumpster in the clients' front yard. The defendants moved to dismiss the case on the ground that the clients' intentionally destroyed evidence necessary for the defendants to mount a proper defense.

The court denied the next-door neighbors' motion to dismiss and confirmed the propriety of the firm's advice to the clients that the removal of the bamboo, where done to mitigate damages, does not warrant the harsh sanction of dismissal of the case. While other states have followed this rule, this decision is the first in New York to hold that spoliation of evidence does not include the destruction of evidence necessary for mitigation of damages. Yager v. Thompson, 1 Misc.3d 902(A), 781 N.Y.S.2d 628 (Dist. Ct. Nassau 2003). After this decision, defendants' insurance carrier paid the full cost of the remediation of the bamboo and restoration of the clients' property to its original, landscaped condition.

CONSTRUCTION: Delay Claim

Another recent lawsuit resulted in the court granting summary judgment on behalf of a masonry subcontractor where the general contractor attempted to claim one year after the mason left the project that the mason delayed the project. Recent change orders include a $200,000.00 negotiated delay claim for a five-month delay on a Federal Post Office Construction project with an original contract price of $1.2 million dollars

CIVIL RIGHTS LITIGATION: Physical Abuse

Other important reported cases include a recent federal civil rights action which resulted in a settlement of $1,000,000.00 for the client against municipal defendants