Commercial Litigation

Mallett is a New Partner in our Municipal Law & Land Use, Real Estate Transactions and Commercial Litigation Groups

We are pleased to announce that Rhea N. Mallett has joined our firm as a partner and is a member of our Municipal Law & Land Use, Real Estate Transactions and Commercial Litigation groups. Rhea practices extensively in the areas of New York municipal law, zoning and planning and environmental law. She represents clients before local administrative boards and at public hearings. Since 2022, Rhea has been elected as a Trustee for the Village of Briarcliff Manor. As an elected official in local government, Rhea understands the demands of municipalities firsthand and the guidance needed to help municipal officers govern, legislate and lead their communities.

Subin Speaks on Attorney Ethics and Technology Issues

Joshua B. Subin, a member of our Municipal Law & Land Use and Commercial Litigation groups, spoke on “Attorney Ethics and Technology-Mediated Lawyering: What’s “Local” in Remote Practice of Law?” for the Westchester County Bar Association. This CLE provided an overview of the unauthorized practice of law in the context of the remote practice of law and the use of artificial intelligence.

Nimetz Speaks on Ethical Issues in Trusts & Estates Practice

Irma K. Nimetz, a member of our Appellate Practice, Commercial Litigation, Surrogate’s Court Litigation and Trusts & Estates groups, spoke on “Ethical Issues in Trusts and Estates Practice: A Surrogate’s Court Litigator’s Perspective” for the White Plains Bar Association. This webinar provided an overview of ethical issues arising in trusts and estates practice from the perspective of a Surrogate’s Court litigator and provided insights as to how attorneys can minimize their risk of becoming a “target” in Surrogate’s Court litigation.

Nimetz Speaks on Estate Planning for Senior Law Day Collaborative

Irma K. Nimetz, a member of our Appellate Practice, Commercial Litigation, Surrogate’s Court Litigation and Trusts & Estates groups, gave a webinar, via Zoom, entitled: “Aging Adults & Estate Planning: How to Start The Conversation” for Senior Law Day Collaborative. In her presentation, Irma discussed how to start conversations with aging adults (parents, partners and/or friends) about estate planning and related issues; how, where and with whom you begin conversations about wills, trusts, powers of attorney, health care proxies and living wills, and/or financial assets; and what those conversations entail. The webinar discussed planning issues for today and ways to avoid estate litigation in the future. Senior Law Day Collaborative offers free legal and financial advice for Westchester County seniors and their families.

Nimetz Speaks on Surrogate’s Court Litigation

Irma K. Nimetz, a member of our Appellate Practice, Commercial Litigation, Surrogate’s Court Litigation and Trusts & Estates groups, spoke on “Ethical Issues in Trusts and Estates Practice: A Surrogate’s Court Litigator’s Perspective for NY Attorneys” for myLawCLE. This webinar provided an overview of ethical issues arising in trusts and estates practice from the perspective of a Surrogate’s Court litigator and provided insights as to how attorneys can minimize their risk of becoming a “target” in Surrogate’s Court litigation.

Nimetz Speaks on Discovery Proceedings in Surrogate’s Court

Irma K. Nimetz, a member of our Appellate Practice, Commercial Litigation, Surrogate’s Court Litigation and Trusts & Estates groups, spoke speak on “SCPA Article 21 Discovery & Turnover – A Practical Primer” before the White Plains Bar Association.

Nimetz Speaks on Will Contests on Senior Law Day

Irma K. Nimetz, a member of our Appellate Practice, Commercial Litigation, Surrogate’s Court Litigation and Trusts & Estates groups, spoke on “How To Contest A Will Or Trust And How To Prevent Your Family From Contesting Yours” for Senior Law Day Collaborative. Senior Law Day Collaborative offers free legal and financial advice for Westchester County seniors and their families.

Nimetz is a New McCarthy Fingar Partner

We are pleased to announce that Irma K. Nimetz has been elected as a new partner of the firm. Irma, who has wide experience in litigation in trusts and estates and other matters, is a member of our Appellate Practice, Commercial Litigation, Surrogate’s Court Litigation and Trusts & Estates groups.

Subin Joins Firm as Counsel

We are pleased to announce that Joshua B. Subin has joined our firm as counsel. Joshua is a former Assistant Town Attorney with the Town of Cortlandt and is a member of our Municipal Law & Land Use and Commercial Litigation groups. Joshua practices in the areas of New York municipal law, zoning, planning, litigation and environmental law. He counsels municipal entities in Westchester County, including Boards of Trustees, Planning Boards, Zoning Boards of Appeal. Joshua also represents private clients on zoning and planning approvals on real estate development throughout Westchester, Putnam and Rockland Counties. He is also a respected commercial litigator and represents private clients in litigation matters, including, but not limited to, commercial, contract, land use and zoning and real property disputes.

Nimetz Elected to Board of White Plains Bar Association

Irma K. Nimetz, a member of our Appellate Practice, Commercial Litigation, Surrogate’s Court Litigation and Trusts & Estates groups, has been elected to the Board of Directors of the White Plains Bar Association.

McCarthy Fingar’s “Super Lawyers”

Six of our lawyers have been selected Super Lawyers in the New York Metropolitan area. Gail M. Boggio has again been selected in the fields of Estate & Trust Litigation/Estate Planning & Probate/Elder Law. Kathleen Donelli has again been selected in the field of Family Law. Dolores Gebhardt has again been selected in the field of Family Law. James K. Landau has again been selected in the fields of Commercial Litigation and Appellate, and has again been selected for the Top 25 in Westchester County for Super Lawyers. Frank W. Streng has again been selected in the fields of Estate & Trust Litigation and Estate Planning & Probate. Douglas S. Trokie has again been selected in the fields of Business/Corporate, Closely Held Business, Real Estate, Business and Civil Litigation. Super Lawyers is a listing of outstanding lawyers from more than 70 practice areas who have been recognized by their colleagues as having the highest degree of peer recognition and professional achievement.

Nimetz Joins Firm as Associate Attorney

We are pleased to announce that Irma K. Nimetz has joined the firm as an associate attorney and is a member of our Appellate Practice, Commercial Litigation and Surrogate’s Court Litigation groups.  Prior to joining McCarthy Fingar, Irma was an attorney with the New York State Attorney General’s Office, where she received the Louis J. Lefkowitz Memorial Award for outstanding performance by an Assistant Attorney General. Irma has experience handling governmental investigations against individuals, businesses and not-for-profit organizations, as well as defending actions and Article 78 proceedings brought against the State of New York and its agencies.

Boggio, Bramson, Brophy, Donelli, Gebhardt & Miller Selected as Super Lawyers

Six of our lawyers have been selected Super Lawyers in the New York Metropolitan area. Gail M. Boggio has been selected in the fields of Estate & Trust Litigation/Estate Planning & Probate/Elder Law. Howell Bramson has again been selected in the fields of Estate Planning/Tax and Corporate Business. Joseph Brophy has again been selected in the fields of Personal Injury/Medical Malpractice, General, Estate & Trust Litigation. Kathleen Donelli has again been selected in the fields of Family Law/Collaborative Law/Appellate. Dolores Gebhardt has again been selected in the fields of Family Law/Collaborative Law/Appellate. Judge Sondra Miller has again been selected in the fields of Appellate/Family Law. Super Lawyers is a listing of outstanding lawyers from more than 70 practice areas who have been recognized by their colleagues as having the highest degree of peer recognition and professional achievement.

Boggio, Donelli & Gebhardt Elected Directors of Women’s Bar Association of State of New York

Gail M. Boggio, Kathleen Donelli and Dolores Gebhardt were elected and then sworn in as directors of the Women’s Bar Association of the State of New York.

Mackay Joins Firm & Matrimonial & Family Law & Commercial Litigation Groups

Kristen L. Mackay (n/k/a Pennessi) has joined the firm as an associate and is a member of our Commercial Litigation and Matrimonial & Family Law groups.

Davis Joins Firm and Heads Up New Tax Certiorari & Condemnation Group

Stephen Davis has merged his practice and joined the firm as counsel and is a member of our Commercial Litigation, Tax Certiorari and Condemnation and Real Estate Transactions groups.

Greenawalt Appointed to Task Force of Westchester County Department of Parks

William S. Greenawalt was appointed Chair of the Westchester County’s Citizen’s Task Force on Deer Management and Forest Regeneration. The appointment was made by the Westchester County Department of Parks, Recreation and Conservation. (6/06). This new Task Force, amongst other things, is addressing problems of invasive plant species, acid rain, invasive earthworms and diseases killing trees and plants. Bill also serves as Chair of the Westchester County Parks Board

Rosh Lectures for NYSBA on Mortgage Foreclosures

Robert H. Rosh lectured on Mortgage Foreclosures in Tarrytown, New York on May 3, 2006 for the Real Property Law Section of the New York State Bar Association as part of an all-day program entitled “Practical Skills: Mortgage Foreclosures and Workouts”.

Greenawalt Joins Firm as Counsel and is Part of Commercial Litigation Group

We are pleased to announce that William S. Greenawalt has joined our Firm as Counsel. Bill is a member of the Firm’s Commercial Litigation group.

Ethical Issues in Trusts and Estates Practice: A Surrogate’s Court Litigator’s Perspective

Ethical Issues in Trusts and Estates Practice: A Surrogate’s Court Litigator’s Perspective for NY Attorneys

Meet the Presiding Justices of the Appellate Division

May, 2019 issue of Westchester Lawyer, published by the Westchester County Bar Association

The Expected Legalization of Cannabis for Adult Use in New York Will Bring New Challenges for Attorneys

February, 2019 issue of Westchester Lawyer, published by the Westchester County Bar Association

Non-Judicial Mortgage Foreclosure Law

Legal Notes, Spring 1999

In the Matter of the Application of AVC Properties LLC v. The Village of Mamaroneck Zoning Board of Appeals, et al. (Sup. Ct. Westchester, Index Nos. 59146 and 62808/2018)

Lori Lee Dickson

McCarthy Fingar’s Municipal Law & Land Use lawyers are often defending decisions made by our municipal clients.  Here, James K. Landau and Lori Lee Dickson successfully obtained the dismissal of two Article 78 petitions brought by AVC Properties, a landowner and developer who sought to appeal from resolutions issued by against firm client Village of Mamaroneck Zoning Board of Appeals (the “ZBA”). The Court agreed with ZBA’s argument that challenges to its resolutions were not ripe for judicial review because the resolutions were not final and any claimed harm by the landowner may be prevented, ameliorated or rendered moot by further steps available to petitioner and further administrative action.

Krowe v. Todd, AAA Case No. 01-18-0000-4009

Irma K. Nimetz

Our Commercial Litigation lawyers represent clients in arbitration before the American Arbitration Association. James K. Landau  and Irma K. Nimetz successfully represented a business owner in a dispute with the other member of a closely held limited liability company. Here, our client commenced an arbitration through the American Arbitration Association seeking damages on theories of breach of contract, breach of fiduciary duty, breach of the covenant of good faith and fair dealing and seeking an accounting and the imposition of a constructive trust based on certain alleged unauthorized use of company funds by the respondent. After the respondent interposed counterclaims and moved for summary judgment, a settlement favorable to our client was obtained in mediation.

Sellmon v. Cotter (Sup. Ct., Westchester Co., Index No. 11444/11)

Robert H. Rosh

McCarthy Fingar’s Commercial Litigation and Real Estate Transactions lawyers sometimes represent clients in lease disputes. Here, Robert H. Rosh successfully moved to dismiss the complaint in which the plaintiff-landlord sued our client to recover damages under a guaranty of rental payments for a one year lease entered into by our client’s son as tenant. The issue in this case was whether the guarantee signed by our client was limited to her son’s one year lease, or extended to a renewal lease that our client’s son had entered into after the expiration of the one year lease, and allegedly defaulted under. In dismissing the complaint on Rob’s motion, the court held that, under New York law, a guarantor is not bound beyond the express terms of his guarantee. And, because the guarantee did not expressly states that the parties intended the guarantee to continue during periods of renewal, our client’s liability under the guarantee did not extend to the renewal lease.

Breach of Fiduciary Duty, Fraud & Other Torts (U.S. Dist. Ct., S.D.N.Y.) (2008)

Robert H. Rosh

In a case brought in the United States District Court in and for the Southern District of New York, Robert H. Rosh and Robert M. Redis successfully defended an action brought against one of our clients alleging various federal and state law claims, including claims under the Federal Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961-68, New York’s General Business Law §349, breach of fiduciary duty, aiding and abetting a breach of fiduciary duty and fraud.

Wiernik v. Kurth (Sup. Ct., Westchester Co., Index No. 6216/07) (2010)

Robert H. Rosh

Robert H. Rosh successfully prosecuted this action by obtaining for our clients a favorable settlement under which the defendants confessed judgment. The dispute arose out of a construction project involving the construction of an addition to our clients’ residence. The construction was, as alleged in the complaint, replete with structural deficiencies, and the defendant-contractor was not a licensed home improvement contractor.

Guastella v. Wheeler, Sup. Ct., Westchester Co., Index Nos. 77891/06; 10129/07

Robert H. Rosh

Robert H. Rosh successfully obtained injunctive relief, enjoining neighboring property owners from diverting surface and storm water onto our clients’ land, and interfering with our clients’ use of a driveway easement. Following a two (2) week bench trial, a verdict was rendered in favor of our clients, directing the neighboring defendants to remove at their own expense certain structures on their land that were causing the diversion of water onto our clients’ land. Pursuant to the verdict, our clients were also granted a license to enter the defendants’ land for purposes of removing, again at defendants’ expense, certain landscaping improvements that were interfering with our clients’ use and enjoyment of their driveway easement over the defendants’ land.

Following plaintiffs’ victory, one of the neighboring defendants attempted to retaliate by spray painting a portion of the surface of the cobblestone driveway on our clients’ land. On our clients’ behalf, Rob successfully prosecuted an action and obtained an award of damages against the defendants to compensate plaintiffs for the loss and damages sustained to their driveway.

Settlement of Partnership Dispute on Misuse of Funds on Eve of Trial

Robert H. Rosh

McCarthy Fingar’s Commercial Litigation group often litigates and tries cases on disputes between business owners. On the eve of trial, Robert H. Rosh successfully settled a dispute involving the purported misuse of partnership funds, and the ownership of certain assets. The defendant-partner claimed ownership and entitlement to assets which were purchased in his name, but which were reflected as assets of the partnership on its books and tax returns. After the defendant-partner unsuccessfully attempted to prevent Rob from offering damaging expert opinion evidence at trial, Rob settled the dispute on terms very favorable for our client.

Matter of Zacharakis (Surr. Ct., Rockland County 3-12-2009)

Frank W. Streng, Gail M. Boggio

Business and real estate assets are often a source of controversy in estates and trusts. Here, control of shopping centers in Rockland County was in controversy. The fiduciary of the estate had maintained legal control and management of the corporations that owned the shopping centers by voting the estate’s shares in the corporations to continue that control. Representing a beneficiary desiring to end the fiduciary’s control over such shopping centers, Frank W. Streng and Gail M. Boggio successfully moved in Surrogate’s Court, Rockland County, to compel the distributions of shares of stock in the corporations in order to permit the majority of the beneficiaries (which included the firm’s client) to control the management of the shopping centers.

Unemployment Insurance Appeal Board, White Plains, New York, 2009

Robert H. Rosh

Working with the court system’s request for pro bono legal services, McCarthy Fingar’s lawyers sometimes volunteer their skills and services to those in financial need. Robert H. Rosh successfully prosecuted, on a pro bono basis, an appeal to the Unemployment Insurance Appeal Board. The Department of Labor had issued a determination disqualifying the pro bono claimant from receiving unemloyment benefits on the grounds that the claimant had lost employment through misconduct.  The determination of misconduct had been based upon the claimant’s arrest and detention by the United States Department of Homeland Security (“DHS”). Following his arrest, the DHS commenced a proceeding to deport the claimant from the United States based upon a federal statute which permits the removal of aliens convicted of a crime involving violence or moral turpitude. In that proceeding, however, the court held that the DHS had failed to establish that the claimant’s underlying claim constituted a crime of violence or moral turpitude.  The court further determined that the claimant had been wrongfully arrested by the DHS, and consequently dismissed the deportation charges against the claimant. The claimant was thereafter released from custody, and contacted his employer, but was advised thereby that his employment had been terminated. At the hearing before the Unemployment Insurance Appeal Board, Rob established that the claimant’s absence from work was caused by and resulted from his wrongful arrest by the DHS, as opposed to misconduct. The Appeal Board consequently found that while it was the employer’s prerogative to discharge the claimant, the claimant should have been permitted to collect unemployment benefits. The Department of Labor’s determination denying benefits to the claimant was consequently reversed, and as a result of Rob’s efforts, the benefits that the claimant had been denied, were provided to him.

Giordano v. Berisha (Sup. Ct., Bronx Co., Index No. 23224/06)

Robert H. Rosh

Robert H. Rosh successfully prosecuted this action for monies due and owing for goods sold and delivered (residential heating oil). Following an evidentiary hearing, damages in excess of $325,000 were awarded to our client, including contractual interest of 18% per annum, as provided in the heating oil delivery stubs that were issued to the defendant-customer upon the heating oil deliveries.

Breach of Fiduciary Duty and Fraud (U.S. Bankruptcy Court) (EDNY) (2008)

Robert H. Rosh

In the United States Bankruptcy Court, Eastern District, Robert H. Rosh successfully defended a client against claims seeking to to set aside a transfer as as a fraudulent transfer under 11 U.S.C. § 584, and as a preferential treatment under 11 U.S.C. § 547.

Giordano v. Need Oil Corporation (Sup. Ct., Westchester Co., Index No. 21891/05)

Robert H. Rosh

Our Commercial Litigation lawyers know that collecting loans made by our clients is essential to success for our clients’ businesses.  Here, Robert H. Rosh successfully prosecuted this action to recover monies due by a guarantor under a promissory note and a guaranty. The guarantor tried, unsuccessfully, to escape liability by arguing that he only signed the note in his representative, as opposed to his individual, capacity. The court rejected the guarantor’s argument, holding that while the guarantor only signed the note in his representative capacity (as an officer of the maker of the note), he also signed a stipulation of settlement which, by its terms, imposed liability upon the guarantor in his individual capacity, and provided that it controlled and superseded the note in event of any conflicts.

Grace v. Grace, Index No. 21143-05 (Sup. Ct., Westchester Co., Decision and Order (Lefkowitz, J.) (2006)

Robert H. Rosh

Clients come to McCarthy Fingar for help when business and personal agreements are openly breached, Here, Robert H. Rosh successfully prosecuted to a judgment in excess of $900,000, in a case involving a dispute over a buy-sell agreement in a closely held corporation.

Davis v. Willinger, 31 A.D.3d 429 (2d Dep’t 2006)

Stephen Davis

Our lawyers represent clients on dispute on prenuptial and post  nuptial agreements. Here, in a declaratory judgment action involving an esoteric point of law, Stephen Davis and Joel M. Aurnou achieved an abatement of a surviving spouse’s contract with her husband to bequeath the proceeds of sale of the couple’s Miami Beach oceanfront condominium residence to her late husband’s daughter. Applying the ademption concept, the trial court – unanimously affirmed by the appellate court – ruled that the promise to bequeath pertained only to the condominium owned by the couple at the time of the promise, notwithstanding that they replaced their original condominium with another in the very same Collins Avenue condominium building.

Keiser v. Todd, 290 A.D.2d 492, 736 N.Y.S.2d 255 (2d Dep’t 2005)

Robert H. Rosh

If a dispute as to a real estate transaction cannot be settled, lawyers need skill and experience to win a case in court. In this matter, Robert H. Rosh successfully defended our client at both the lower court and appellate levels, in an action brought by a tenant to enforce a purported option to purchase our client’s real property. Rob moved for, and obtained, an order dismissing the tenant’s complaint. In support of its dismissal, the court held that the draft option agreement between the parties did not identify the property to be conveyed with sufficient particularity to satisfy New York’s Statute of Frauds, General Obligations Law §5-703(2), and was therefore unenforceable.

Following our client’s victory, the tenant refused to vacate the premises and Rob successfully pursued on our client’s behalf a proceeding that resulted in the eviction of the tenant from the premises.

Linsker v. Mohr (Sup. Ct., Westchester Co., Index No. 12788/02)

Robert H. Rosh

Robert H. Rosh successfully defended a tort claim (fraudulent misrepresentation) arising out of a business venture agreement between the parties (involving the printing and distribution of promotional material concerning a golf event that was to be staged in Hawaii).  Here, Rob moved for, and obtained, an order dismissing the plaintiff’s complaint for lack of jurisdiction over the defendants (both of whom were Hawaiian residents).  In support of its dismissal of the case, the court held that since the purported tort occurred out-of-state (Hawaii), and the only resulting injury in New York was an indirect financial loss sustained by the plaintiff, and there was no jurisdiction over either of the defendants in New York State.

Frankel v. Ford Leasing Dev. Co., 7 A.D.3d 757, 776 N.Y.S.2d 905 (2d Dep’t 2004)

Robert H. Rosh

Our lawyers defend clients on unwarranted lawsuits for enforcement of alleged contracts. Here, Robert H. Rosh successfully defended an action that was brought against his client for specific performance of a contract to sell real property. Rob moved for and was awarded summary judgment dismissing the action. On appeal, the lower court’s decision was affirmed, finding that the parties never had a meeting of the minds, and that the documents which had been relied upon by the plaintiff in support of his claim had omitted essential terms of a contract; and, thus, the claim was barred under the statute of frauds. The appellate court also found that the actions taken by the plaintiff were not unequivocally referable to a contract of sale so as to constitute part performance sufficient to defeat the statute of frauds, and were merely steps taken in contemplation of a future agreement.

Peo. (Vil. Of Mamaroneck) v. Argueso, Justice Court of the Town of Harrison, Johnston, J. aff’d Appellate Term. 9th & 10th Judicial Districts (1993) and Zaccagninio v. Village of Rye Brook, Supreme Court, Westchester County, Lefkowitz, J. (2004)

Stephen Davis

Stephen Davis successfully invalidated in both cases a retrofit sprinkler system ordinance on the basis that the legislation creating the State Uniform Building Code, which except under certain very limited circumstances, precludes both the Code and local governments from requiring retrofitting to pre-1984 structures. And, in regard to local governments, precludes enactment of any local law at variance with the State Code.

Papadopolous v. Goldstein, Goldstein & Rikon, P.C., 283 A.D.2d 649, 725 N.Y.S.2d 364 (2d Dep’t 2001), appeal denied, 97 N.Y.2d 677

Robert H. Rosh

In this case, Robert H. Rosh and Robert M. Redis successfully represented two (2) individuals at both the lower court and appellate levels in a fee dispute with their former counsel involving a condemnation proceeding. The dispute arose after the individuals discharged their former counsel and negotiated a sale of their properties on their own. The court held that the individuals had the right to settle their case on their own, and that their former counsel were only entitled to recover in quantum meruit for the legal services rendered to the individuals in connection with the condemnation proceeding.

Caligor Medical & Office Supplies v. Mandell (Dist. Ct., Nassau) (Index No. 13011-98)

Robert H. Rosh

Clients often ask our Commercial Litigation group to represent them on disputes with their vendors. In Caligor Medical & Office Supplies v. Mandell, Robert H. Rosh successfully defended a dispute over monies purportedly due to the plaintiff under a medical equipment lease. At trial, Rob offered evidence establishing that the leased medical equipment was defective. The plaintiff-lessor thereafter settled the dispute on terms favorable to our client.

Hudson Communities Coalition, Inc. v. New York State Office Parks, Recreation & Historic Preservation, 251 A.D.2d 504, 673 N.Y.S.2d 595 (2d Dep’t 1998)

Robert H. Rosh

Our lawyers represent clients in disputes over different types of real estate matters. Here, Robert H. Rosh and Robert M. Redis intervened on behalf of St. John’s Riverside Hospital and successfully defended it in the lower court in an Article 78 proceeding, and on an appeal to the Appellate Division, Second Department. In this case, a coalition sought to overturn certain administrative determinations as to the siting and design of St. John’s proposed nursing home facility in Yonkers, New York.

Midwest First v. Mosello (Sup. Ct., Westchester Co., Index No. 13615/98)

Robert H. Rosh

Our lawyers often protect client’s interests in loan obligations. Here, Robert H. Rosh successfully prosecuted this action against defaulting obligors (a husband and wife) for failure to make payments under a note and mortgage. On the eve of the foreclosure sale, the defendant-husband filed for bankruptcy, and obtained a brief stay of protection until Rob moved, and obtained relief from, the bankruptcy court permitting the foreclosure to proceed. On the eve of the next scheduled sale date, the defendant-wife filed for bankruptcy. Rob moved for and obtained an order preventing the defendant-spouses from further filing for bankruptcy, and with the assistance of the sheriff, the defendant-spouses were evicted from the mortgaged premises.

Midwest First v Mosello (Sup. Ct., Westchester Co., Index No. 13615/98)

Robert H. Rosh

Following a foreclosure sale, Robert H. Rosh successfully moved for and obtained a deficiency judgment against the defendant-mortgagors after an evidentiary hearing. At the hearing, the defendant-mortgagors attempted to offer evidence showing that the value of the mortgaged property was greater than the debt, and that there was therefore no basis for a deficiency judgment. The court rejected the defendants’ evidentiary offer as to the value of the property, finding it self-serving and inconsistent with evidence offered by the defendants in a prior proceeding for purposes of reducing the real estate taxes on the mortgaged property.

Chemical Bank v. East Main Inc. (Sup. Ct., Westchester Co., Index No. 20547/95)

Robert H. Rosh

Robert H. Rosh successfully prosecuted this contested mortgage foreclosure action. The defendant-mortgagor and guarantors unsuccessfully argued that the note and mortgage were void for lack of consideration, since the proceeds of the loan were not used by the mortgagor, but by its principals to purchase certain assets. The court rejected the defendants’ lack of consideration defense, citing authority holding that a mortgage is not void for lack of consideration where the mortgage proceeds are received by a party other than the mortgagor.

Almar Realty Corp. v. Sockolof Bros., 35 A.D.2d 986 (2d Dep’t 1970), aff’d, 29 N.Y.2d 735 (1971)

Stephen Davis

Stephen Davis and Joel M. Aurnou prevailed in a reformation action by distinguishing mutual ignorance from mutual mistake of fact.  The result was their client’s warehouse tenant paying a  real estate tax escalation rental over a base of a vacant land assessment and not against a base assessment of the completed warehouse building.

Ercolani v. Sam & Al Realty Co., 17 N.Y.2d 299 (1966)

Stephen Davis

Representing a creditor, Stephen Davis successfully persuaded the Court of Appeals to reverse a decision of the Appellate Division, Second Department. Upon reversal, the lower court was compelled to recognize the right of general creditors to intervene in opposition to a referee’s report of sale, in order to restore what should have been surplus moneys from which the creditors’ claims could then be paid.