Page 6 - The Suffolk Lawyer - December 2020 - Vol. 35, No. 8
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6                                                          THE SUFFOLK LAWYER - December 2020


                                                                       BENCH BRIEFS

        By Elaine Colavito                    in plaintiff alleged  that he  made          breach of contract arising out of a  less of whether or not the deed has issued yet.
                                              with Savage the Youth Film, LLC              Nassau County matrimonial mat-  Such right cannot be revived by court order.
          Suffolk County Supreme Court        and one of its managing members.             ter. In rendering its decision, the  Plaintiff asserted that defendant 106 Lexing-
                                              Defendants were domiciliaries of             court stated that Part XLVO of the  ton’s deed was invalid at inception because
          Honorable Sanford Neil Berland      California  and  moved  pursuant             Suffolk County Supreme Court  defendant Roth possessed n right in the prop-
                                              to CPLR §3211(a)(8), to dismiss              was a Commercial Division Part.  erty and had nothing to convey. Plaintiff also
          Motion to dismiss second cause of action  the complaint contending that the      The matter at bar was not a com-  claimed that 106 Lexington was not a valid
        denied; cause of action stemmed from the  court was without personal juris-        mercial case. It was a breach of  entity at the time of the alleged transfer be-
        terms of his contract and did not implicate,  diction over them. In denying the   eLaine coLavito  contract case concerning a divorce  cause the New York Department of State re-

        affect or otherwise relate to an EISA plan;  motion, the court noted that plain-   proceeding and agreements made  cord database showed the filing date of the
        no preemption.                        tiff claimed that defendants breached their  therein between the husband and the wife in-  LLC having being Oct. 8, 2019. Based upon
          In  Anthony Lauto in his capacity as the  agreement with him by failing to pay him  volving marital property. The court reasoned  the fact that 106 Lexington was not a legal
        Executor of the Estate of Joseph F. Lauto v.  the fee to which he asserted he was entitled  that the jurisdiction of the Supreme Court  entity at the time of the alleged property
        Michbi Doors, Inc. and Michelle Bianculli,  for bringing them an investor who invested  and the Surrogate’s Court in matters relat-  transfer, plaintiff made a prima facie case en-
        Index No.: 624563/2019, decided on Nov.  $50,000 in their venture and for failing to  ing  to  the  estate  of  a  deceased  person  was  titlement to judgment as a matter of law. The
        17, 2020, the court denied defendants’ mo-  given plaintiff executive producer credit on  concurrent. So long as the Surrogate’s Court  court found that an entity not in legal exis-

        tion to dismiss the second cause of action of  the film for doing so. Beyond plaintiff’s con-  has subject matter jurisdiction over a contro-  tence cannot take title in real property unless
        the complaint. In support of their motion, de-  tention that he was brought into the business  versary, its powers were equal to that of the  the de facto corporation doctrine was shown
        fendants proffered that the employer’s pro-  interactions with the defendants by an execu-  Supreme Court. Wherever possible, all liti-  to apply, which it did not. Accordingly, sum-
        cess for collecting health insurance premi-  tive producer and investor in the project who  gation involving the property and funds of a  mary judgment was granted, as was a default
        ums was governed exclusively by EISA, and  lived in New York, plaintiff claimed and de-  decedent’s estate should be disposed of in the  judgment against defendant Laura A. Roth.
        that, therefore, plaintiff’s second cause of ac-  fendants did not dispute that the New York  Surrogate’s Court.
        tion was preempted. In opposition, plaintiff  law firm they retained to represent their ven-                       Honorable David T. Reilly

        argued that the Labor Law §193 cause of ac-  ture negotiated and concluded the investment   Motion to dismiss pursuant to CPLR
        tion stemmed from the terms of his contract  agreement with that investor. While defen-  §3211(a)(4) denied; the two actions were   Motion to transfer venue pursuant to CPLR
        and did not implicate, affect or otherwise re-  dants contended that they received no pay-  not  sufficiently  similar,  nor  did  they  arise  §504(3) granted; plaintiff failed to submit

        late to an EISA plan.                 ment for exhibiting their film was exhibited  out of the same subject matter or series of  sufficient evidence to overcome the statuto-


          In denying the motion, the court noted that  there or, for that matter, that their commercial  alleged wrongs.  ry mandate of CPLR §504(3), which required

        defendants pointed to no provision of ERISA  purposes were, as plaintiff alleged, served by   In Hasan A. Rizvi, M.D. v. North Shore He-  that the inconvenience to public officers be
        that prohibited an employer from contrac-  their doing so.                 matology-Oncology  Associates,  P.C.  d/b/a  given more than ordinary consideration.
        tually undertaking to pay all of an employ-  Thus, the court concluded whether or not  New York Cancer & Blood Specialists, Jef-  In  Rosa  Lauretta  and  Enrico  Lauretta  v.
        ee’s health insurance costs or that precluded  plaintiff was physically located in New York  frey Vacirca, M.D., Gerry Rubin, M.D., and  Marina  Nosikovsky  and  Vadim  Nosikovsky,
        the contracting employee-or his estate-from  on some or all of those occasions when he  John  Doe  1-10,  Index  No.:  617346/2019,  Marina Nosikovsky and Vadim Nosikovsky v.
        bringing suit against an employer to enforce  and the defendants engaged in communi-  decided on Nov. 4, 2020, the court denied  City of New York, Robert Fuca and Madd-
        that obligation or to recover damages for the  cations by email and telephone, there was  the branch of defendants motion to dismiss  alena Fuca, Index No.: 604826/2019, decid-
        employer’s breach of its undertaking.  The  nonetheless,  a  sufficient  “relatedness”  be-  pursuant to CPLR §3211(a)(4). In render-  ed on March 6, 2020, the court granted the

        court stated, that plaintiff’s dispute was not  tween the defendants’ transaction of business  ing its decision, the court noted that under  motion by third-party defendant City of New
        with the health insurance plan; it was with  in New  York and plaintiff’s claims “’such  CPLR §3211(a)(4), a court has broad discre-  York’s application for an order changing
        defendants, who, he claimed, breached their  that the latter is not completely unmoored  tion in determining whether an action should  the place of trial of the action to Richmond
        agreement to pay for health insurance cover-  from the former, regardless of the ultimate  be dismissed on the ground that another ac-  County, pursuant to CPLR §§501, and 504.
        age for plaintiff’ decedent and for plaintiff’s  merits of the claim.’”    tion pending between  the  same  parties  for   The  City  of  New York  argued  that  inas-
        decedent’s wife, as a consequence of which,                                the same cause of action. A court may dis-  much as the alleged accident took place in
        plaintiff claimed the decedent was forced to   Honorable James Hudson      miss an action pursuant to CPLR §3211(a)(4)  Richmond County, the trial of the action
        bear those costs himself, including ultimate-                              where there was a substantial identity of the  should take place in that county. Alternative-
        ly, the cost of participating in Medicare.   Cross-motion to transfer matter to Surro-  parties, the two actions were sufficiently sim-  ly, the city averred that CPLR §504 com-

                                              gate’s Court; wherever possible, all litigation  ilar, and the relief sought was substantially  pelled a change of venue in the matter to
          Motion to dismiss due to lack of personal  involving the property and funds of a dece-  the same. It is not necessary that the precise  Richmond County.  The statute provided in

        jurisdiction denied; sufficient “relatedness”  dent’s estate should be disposed of in the Sur-  legal theories presented in the first action also  pertinent part, that the place of trial against

        between defendants’ transaction of business  rogate’s Court.               be presented in the second action. The criti-  the City of New York shall be in the coun-
        in New York and plaintiff’s claims.    In Allean Cohen v. Richard A. Weinblatt,  cal element is whether both suits arise out of  ty within the city in which the causes of ac-
          In Matthew Margolin v. Savage Youth the  Esq.,  as  Executor  of  the  Estate  of  Peter  J.  the same subject matter or series of alleged  tion arose. Plaintiffs contended that although
        Film, LLC, and Michael Peluso, individually  Cohen,  Index No.: 606742/2019, decid-  wrongs. In denying this branch of the defen-  the accident took place in Richmond Coun-
        and as a manager of Savage Youth the Film,  ed on April 28, 2020, the court granted the  dants’ motion, the court found that the two  ty, they were residents of Suffolk County and
        LLC,  Index No.: 609359/2019, decided on  cross-motion of defendant, which requested  actions were not sufficiently similar, nor did  were elderly and in poor health. Plaintiff also

        May 11, 2020, the court denied defendants’  an  order  removing  and  transferring  the  ac-  they arise out of the same subject matter or  argued that although initial emergency treat-
        motion to dismiss the complaint.  The ac-  tion to the Suffolk County Surrogate’s Court.  series of alleged wrongs.   ment took place in Richmond County, the
        tion was for breach of an agreement, where-  The court noted that the matter sounded in                          great majority of their medical appointments
                                                                                     Honorable Vincent J. Martorana      took place in Suffolk County, and therefore,
                                                                                                                         most of their material witnesses were located
                                                                                     Summary judgment motion and motion for  in this jurisdiction. In rendering its decision,
                                                                                   default judgment granted; entity was not in  the court noted that despite plaintiffs’ claims
                                                                                   existence at time of alleged property transfer;  of hardship and convenience, their assertions
                                                                                   de facto corporation doctrine did not apply.  did not amount to compelling circumstances
                                         631.737.1700
                                                                                     In  Rocian  Lands  and  property  Corp.  v.  which would warrant retention of this action
                                                                                   106 Lexington Rd LLC and Laura A. Roth,  in Suffolk County. Stated otherwise, plain-
                                                       Looking to reach an exclusive audience?   Index No.: 621552/2019, decided on  Aug.  tiffs  failed  to  submit  sufficient  evidence  to

                                                       Let us help. Long Island Business News  17, 2020, the court granted plaintiff’s motion  overcome the statutory mandate of CPLR
                                                        now offers co-branded emails, proven
                                                       lead generators that will bring attendees   seeking a default judgment against Laura A.  §504(3), which required that the inconve-

                                                         to events and webinars, attention   Roth, and summary judgment against defen-  nience to public officers be given more than
                                                        to professional announcements and   dant 106 Lexington Rd LLC. The court noted  ordinary consideration.
                                                        downloads of whitepapers and other   that plaintiff demonstrated that it purchased
                                                       services that you offer. These emails are   the property on April 16, 2019, when it was   Note:  Elaine  Colavito  graduated from
                                                        sent to an exclusive list of subscribers
                                                           to our highly popular daily  the successful bidder at public auction. On  Touro Law Center in 2007 in the top 6%
                                                              email newsletter.    that date a deposit was made, and a referee  of her class. She is a Partner at Sahn Ward
                                                                                   deed subsequently issued. As of the date of  Coschignano,  PLLC  in  Uniondale.  Ms.
                                                       For a limited time, were offering a trial
                                                           at the special prices below.  the foreclosure sale, Roth, who was the prior  Colavito concentrates her practice in mat-
                                                                                   owner of the property and defendant in fore-  rimonial and family law, civil litigation,
                                                                                   closure proceedings, lost her right of redemp-  immigration, and trusts and estate mat-
                                                         $1,500 for 30,000 emails [1x buy]
                                                                                   tion as a matter of law. The extinguishment of  ters. She is a Past President of the Nassau
                                                                                   that right occurs by operation of law regard-  County Women’s Bar Association.
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