ECBA lawyers Dan Kornstein and David Lebowitz recently won summary judgment for $195,000 plus interest for ECBA’s client Schlesinger & Company, LLC as plaintiff in a suit against WWP Office, LLC. The case, in Supreme Court, New York County, was for breach of a commercial real estate brokerage agreement by which our client was to receive additional commissions if the tenant exercised options to renew its lease. Defendant, which was not the original party to the brokerage agreement, argued it had not assumed the obligations to pay the commission. We submitted proof it had. The parties made cross-motions for summary judgment. Judge Cynthia Kern granted our motion in full.
ECBA won an important victory on January 27, 2016 in a partnership dispute that is pending in New York Supreme Court, NWM Capital v. Mark Scharfman, et al. ECBA represents the defendants in the case, the general partners in four real estate partnerships and the managing agent of apartment buildings in Washington Heights, among others. Plaintiff is a limited partner in the partnerships. The Court granted ECBA’s clients’ motion for summary judgment on the most significant claims in the complaint, finding that there was “no basis for these claims.” The Court also denied plaintiff’s motion for summary judgment in its entirety. The value of the dismissed claims, according to plaintiff, was tens of millions of dollars. ECBA attorneys Dan Kornstein and Sam Shapiro represent the defendants.
ECBA recently succeeded on a motion to disqualify plaintiffs’ co-counsel in a pending litigation in New York Supreme Court. Retained as special ethics counsel on the disqualification motion, ECBA was able to convince the Court to disqualify the firm because one of its associates had previously represented defendants in the same matter, and had obtained material client confidences, before he moved laterally to the plaintiffs’ firm.
ECBA attorneys Hal R. Lieberman, Hayley Horowitz, and Zoe Salzman handled the disqualification motion.
A case brought by ECBA against the Board of Trustees of The Cooper Union, disputing the decision to charge tuition for the first time in the school’s history, has settled. ECBA represents the Committee to Save Cooper Union (CSCU), a coalition of current and prospective students, alumni, and faculty. CSCU filed suit in May 2014, arguing that charging tuition violated the trust established by Peter Cooper and seeking to reinstitute free tuition, to provide a full accounting and to implement greater oversight. As a result of the CSCU lawsuit, the Attorney General of the State of New York launched a confidential investigation into The Cooper Union, which culminated in the settlement announced today.
The settlement agreements, which will be filed today with the Court and which the Court is expected to approve at a hearing on September 14, include a consent decree signed by the CSCU, the Attorney General, and The Cooper Union, as well as a cy pres petition by the Attorney General. The agreements impose an independent financial monitor; establish a Board committee made up of alumni, students, and faculty that is dedicated to developing a plan for the return to free tuition; require the school’s leadership to make a good faith effort to return to free; and expand the presence of alumni, students, and faculty on the Board of Trustees.
ECBA lead attorney Richard D. Emery explained: “A tragic chapter in this great school’s history has ended. For the past several years, a lack of fiscal restraint, conflicts of interest and a failure of educational vision banished Peter Cooper and his spirit from the school he founded. Cooper built a completely free, merit-based learning institution that encouraged free thinking and produced some of our nation’s greatest minds in the arts and sciences. These recent years abandoned those values in favor of financial manipulation and debt. Because of the litigation settled today, Peter Cooper is back. Justice for Peter Cooper and all those who benefited from his great experiment is now a promise that must be kept.”
Read more about the settlement in coverage by the Wall Street Journal and the New York Times.
The CSCU Petitioners were represented by ECBA attorneys Richard D. Emery, O. Andrew F. Wilson, and Zoe Salzman.
ECBA is pleased to announce that Daniel J. Kornstein has joined the firm as a partner. Mr. Kornstein is a distinguished and experienced trial lawyer and appellate advocate. In his 42 years practicing law, he has conducted over 100 trial-type proceedings (including 20 jury trials) and argued more than 70 appeals. His varied litigation practice spans many subject areas, including First Amendment, securities, commercial, banking and finance, trusts and estates, employment, product liability, family law, and international matters. Mr. Kornstein comes to ECBA from the prominent litigation boutique Kornstein Veisz Wexler & Pollard, LLP, which he founded. In addition to his primary focus on commercial litigation, Mr. Kornstein will be bringing defamation and constitutional law cases with him to ECBA.
The United States District Court for the Southern District of New York granted a second petition brought by Emery Celli Brinckerhoff & Abady to secure materials relating to the Madoff fraud for use in a Swiss criminal proceeding. Based on ECBA’s December 12, 2014 victory in the United States Court of Appeals for the Second Circuit, the Court held that the materials sought were appropriately subject to disclosure under 28 U.S.C. § 1782, a statute that permits discovery in the United States for use in foreign or international proceedings. The Court ordered immediate production of the materials, and a motion for a stay in the Second Circuit was denied. ECBA attorneys O. Andrew F. Wilson and Sam Shapiro litigated the case on behalf of a Swiss national.
Douglas Durst and the Durst Organization retained Emery Celli Brinckerhoff & Abady to respond to and protect the family and the Durst Organization from defamation by Andrew Jarecki, producer of the HBO series “The Jinx.” ECBA attorney Richard Emery led the firm’s representation.
In a matter of “first impression” in the United States Court of Appeals for the Second Circuit, Emery Celli Brinckerhoff & Abady successfully obtained materials concerning the Bernard Madoff Ponzi Scheme for use in a Swiss criminal proceeding. The Court held that the materials sought were appropriately subject to disclosure under 28 U.S.C. § 1782, a statute that permits discovery in the United States for use in foreign or international proceedings. Rejecting arguments that the Swiss proceeding was not a “foreign or international tribunal” as that term is defined in the statute, the Court held that the Swiss proceeding is “exactly the type of proceeding” that the statute is intended to reach. ECBA attorneys O. Andrew F. Wilson and Sam Shapiro litigated the case on behalf of a Swiss national.
The Southern District of New York denied efforts to quash a subpoena ECBA had obtained on behalf of a foreign national to gather documents in the United States in aid of proceedings in Switzerland arising from the Bernard Madoff Ponzi scheme. ECBA attorneys O. Andrew F. Wilson and Sam Shapiro successfully argued that the materials were appropriately subject to the statutory and discretionary requirements of 28 U.S.C. § 1782. The matter is now on appeal to the Second Circuit.
To read the opinion, click here.