decisions

E.K. v. T.K., 012302/1990 (7/14): Plaintiff, a medical doctor, obtained a Judgment of Divorce on default in 1990 and after inquest, he secured exclusive possession and occupancy of the marital home and sole custody of the parties’ four children. The Judgment did not provide for equitable distribution of the marital property. When plaintiff tried to sell the house 20 years later, defendant refused to consent, and she asked for equitable distribution (including one-half of plaintiff’s medical license.) Representing plaintiff, Josh H. Kardisch, Esq., convinced the Court that defendant had the opportunity to litigate the equitable distribution issue at the time of the divorce and that the doctrine of res judicata bars her from doing so 20+ years post-judgment. The Court allowed KLG’s client to sell the marital home in spite of defendant’s objections.

D.R. v. A.R.,  Index # 011448/09,  Supreme Nassau (11/12):  Plaintiff D.R., a 75 year-old woman, deeded her two-family home to one of her daughters, C.R., for no money in order to prevent a potential creditor (a plaintiff in a personal injury lawsuit) from ultimately taking title. C sold the property to her natural sister and D’s other daughter, A, who satisfied her mother’s mortgage, took her own mortgage and paid cash to C. When the personal injury lawsuit was over, D asked A (the then-owner) to “give the house back,” and her daughter refused. D and C sued A claiming that defendant was holding the home “in trust” for them. After plaintiffs presented their case to Judicial Hearing Officer and former Justice Ute Lally, Josh H. Kardisch, Esq., representing A sought dismissal on a number of grounds. JHO Lally granted the request finding that plaintiffs did not bring their lawsuit in a timely fashion and that they did not prove that a constructive trust was created. As a result, KLG client A.R. was permitted to keep the house that she purchased from her sister.

M.A. v. ABC Importers, et, al., CV-10-0614 (EDNY 2010): Plaintiff, a 53 year-old woman, sustained an injury to her eye when the electric juice extractor that she was using suddenly exploded. KLG brought suit on her behalf against the foreign manufacturer, the importer, distributor and retailer. The law firm ascertained that the importer had reported similar, prior occurrences to the Consumer Products Safety Commission, but that nevertheless, the defendant did not remove the defective product from the market. Following jury selection before Federal Court Judge Leonard Wexler, the defendants agreed to settle the case for the sum of $240,000.

E.J. v. J.L. Smith, CV-10 3217 (EDNY 2010): Plaintiffs sued an apartment building owner claiming that he unlawfully refused to rent a unit to them. The owner had communicated in writing that plaintiffs had to pay two months’ security and the first month’s rent at lease signing and provide a governmental agency guarantee that the rent would be paid. When plaintiffs were not able to provide the guarantee, defendant refused to rent the apartment. Plaintiffs posited that they only needed a guarantee for the first month’s rent and security deposit. KLG represents the landlord and moved the Court for a dismissal. Eastern District of New York Judge Arthur Spatt granted our motion, holding that, “common to all housing discrimination claims under the Fair Housing Act, New York Human Rights Law, Americans with Disabilities Act and the Rehabilitation Act is the requirement that ‘a plaintiff show that he was qualified for an available benefit and [that he] was denied that benefit.'” Justice Spatt further held, “giving each of these terms [in the letter] their plain meaning, the interpretation urged by the plaintiffs ‘strains the contract language beyond its reasonable and ordinary meaning’ insofar as it would render either the payment requirement or the guarantee requirement meaningless or superfluous.” Accordingly, the Court, concluded, “the requirement of ‘a guarantee from a governmental agency’ for ‘the rent’ cannot be referring to the security deposit and first month’s rent, [and] the only reasonable interpretation of the lease conditions provision is that the plaintiffs were required to obtain a guarantee from a government agency for the remaining rent due for the one-year lease period.”

Note: The Court allowed plaintiffs to amend their complaint if they could truthfully allege that they had a guarantee for future rent payments or that defendant subsequently modified the terms of the offer letter. Plaintiffs amended the Complaint without so stating, and KLG again moved to dismiss. The motion is pending before Judge Spatt.

Merchant Cash and Capital, LLC, v. L.N., Index No.: 13260/09 (Supreme Court, Queens County, July 11, 2011): KLG convinced the presiding Judge to dismiss Merchant Cash and Capital, LLC’s claims against its client. The Court held that a party cannot prevail in a breach of contract action when the original financial documents are not available and the signature on copies are illegible.

Alexander v. R.P. Tavern, Index No. 24302/04 (Supreme Court, Suffolk County, June, 2011): Attorney Beth L. Rogoff recently obtained a defendant’s verdict in a case in which plaintiff claimed serious injury after falling down restaurant steps. Ms. Rogoff convinced the jury that the owner met his duty to provide reasonably safe egress from his establishment.

Smith v. Jones Realty, Supreme Court, Kings County (November, 2009): Immediately prior to jury selection, Josh H. Kardisch, Esq., negotiated a $1,000,000 settlement on behalf of a 12-year old boy who was injured while residing in a Brooklyn apartment. KLG’s client suffered harm that manifested itself in cognitive impairment and behavioral issues. A confidentiality agreement prohibits disclosure of the parties’ identities.

Diallo v. DB Realty, Inc., et. al., Supreme Court, New York County (2009): The Court dismissed lead poisoning claims against KLG’s client because he did not own the subject residential property until after a complete lead abatement had been performed. Beth L. Rogoff, Esq., handled the matter and convinced the Court to dismiss.

S.T. v. R. Management Corporation, et. al., Supreme Court (Kings County, 2009): The Court dismissed a case against KLG’s client because although mold was found on the bathroom walls, plaintiff proffered no evidence that the mold spores were airborne, that he had actually been exposed, or that he had any physiological reaction. Josh H. Kardisch, Esq., and Beth L. Rogoff, Esq., represented the property owner.

Lopez v. G. Property, Inc., et. al., Supreme Court, Kings County (2009): In this lead poisoning lawsuit, the Court granted KLA’s motion for summary judgment, agreeing that: 1) eight days is insufficient time for a landlord to obtain notice of a defective condition and repair/address same; 2) the adult plaintiff was not a “resident” in the subject premises; 3) the landlord was not aware of the presence of infants or pregnant adults, and; 4) there was no defective condition in the subject premises. Beth L. Rogoff, Esq., represented the property owner.

General Casualty Insurance Company v. K.H Products. (A.D. 1st Dep’t, April 2008): The Appellate Division, Second Department, held that homeowners have a valid claim against an oil tank manufacturer for property damage due to corrosion and leakage, even though they were in exclusive control of the subject tank. KLG’s Beth Rogoff, Esq., represented the insurance company on behalf of the property owners and against the manufacturer.

C.L. v. XYZ Insurance, Supreme Court, Suffolk County (July 2007): In this bad faith litigation, KLG obtained a settlement well in excess of the policy limits from an insurance company that initially refused to cover its insured who suffered total loss of his primary residence due to fire. The carrier relied upon certain “misrepresentations” on the insured’s application, but KLG convinced its representatives that these errors were not “material” in the decision to offer coverage in the first place and that the disclaimer could yield a bad faith award in excess of the agreed upon settlement. A confidentiality agreement prohibits disclosure of the parties’ identities. Josh H. Kardisch, Esq., represented the homeowner.

In Re: D.M., Supreme Court, Nassau County (October 2005): A trial court held that an attorney-in-fact cannot do that which the principal was without power to do before his death; thus, where an individual is bound by a divorce decree to maintain life insurance for the benefit of offspring with his first wife, his new wife cannot utilize her power of attorney to replace herself as beneficiary. Bonnie Link, Esq., represented KLG’s six-year old client and collected a $750,000 judgment on his behalf.

M.F. v. D.M., Supreme Court, Queens County (September 2005): KLG obtained a $450,000 settlement for a 67-year old woman who was attacked by a dog, enabling the client to purchase a home for the first time and live closer to her children and grandchildren. KLG uncovered and successfully argued for the applicability of insurance coverage that the dog-owner maintained in her capacity as a visiting nurse. Josh H. Kardisch, Esq., represented the plaintiff and negotiated the settlement after jury selection.

ABC Insurance v. R.L., 416 F.3d 109 (2d. Cir. 2005): In this case, KLG’s client leased a car pursuant to an agreement that made her responsible for any loss that the lessor might sustain. While driving the vehicle, the client was involved in an accident, and her insurance company, A Insurance defended the personal injury lawsuit, ultimately paying the limits of its policy in a negotiated settlement. The leasing company contributed to the settlement as well and sued KLG’s client pursuant to the above lease provision. A Insurance refused to defend its insured in this suit (arguing that it was a breach of contract action, not one based upon the covered loss), and the client incurred considerable legal fees which she sought to recoup by bringing the insurance company into the lessor suit. The trial court dismissed the client’s claim that A Insurance breached its duty to defend her. The Second Circuit Court of Appeals reversed, stating that since the underlying personal injury suit against the lessee was the “result of a covered auto accident”, the carrier had improperly withdrawn its defense against the lessor’s claim for indemnification. KLG obtained reimbursement of the client’s legal fees.

A.E. Owners’ Corp. v. TCM, et al., Supreme Court, Nassau County (November 2004): KLG represented a group of cooperative owners in a challenge to a Board election, and persuaded a Nassau County court that certain owners violated the By-Laws and New York State Election Law. The court ordered another election of officers.

N. M. Insurance Company v. L.C., (Supreme Court, Nassau County, 2002): In this case, an automobile insurer disclaimed coverage for uninsured benefits because KLA’s client “failed” to timely complete and return a “Proof of Claim” form. The court held that the 26-page questionnaire “went far beyond what is required by the insurance contract,” and that the insured did not forfeit her right to arbitrate by failing to timely complete and submit same. Bonnie Link, Esq., represented the insured.

J.J. v. City of New York, 309 A.D.2d 676, 765 N.Y.S.2d 866 (1st Dep’t. 2003): In a case of first impression, the Appellate Division, First Department, held that: 1) an out-of-possession owner without the right or duty to enter and repair was not subject to liability for injury resulting from a lead-based paint condition in the building; 2) plaintiffs never provided the realty company with the requisite notice of the presence of a young child on the premises, and; 3) whatever notice the lessee might have had could not be imputed to the out-of-possession owner. KLA’s Josh H. Kardisch, Esq., and Beth L. Rogoff, Esq., represented the building owner.

Rodriguez v. Q.U. Realty, Index No. 8534/99 (Supreme Court, Westchester County, 2002): A trial court dismissed a lead poisoning case against KLG’s client, stating that plaintiff had failed to demonstrate that defendant-landlord had knowledge of the age of the building in which the subject child resided.

A.S. v. D.K. Realty, et. al., Index No. 9089/97 (Supreme Court, Kings County, 2001): A trial court granted attorney Beth Rogoff’s motion to exclude certain evidence and precluded plaintiffs’ neuropsychologist from testifying in lead poisoning case involving two children. Plaintiffs’ counsel demanded $1.9 million to settle before trial, the jury only awarded $250,000, and the judge struck plaintiffs’ medical doctor’s testimony and reduced the total award to $150,000.

T.C. v. R.P., 266 A.D.2d 492, 698 N.Y.S.2d 721, 1999 N.Y. App. Div. LEXIS 12302 (2d Dep’t. 1999): Based upon attorney Bonnie Link’s motion, the Appellate Court allowed defendant to amend his answer to assert claims against plaintiff based upon allegations that she painted the subject apartment and failed to seek prompt medical attention for children who were allegedly exposed to and harmed by lead-based paint, since those claims could demonstrate comparative negligence.

W.C. v. B. Trucking, Inc., Eastern District of New York (1999): Josh H. Kardisch, Esq., obtained a jury verdict on behalf of the employer in an age and race discrimination lawsuit, in which plaintiff had asked the jury to award his client $2.5 million.

Elkman v. S.G. Owners Corp., 246 A.D.2d 314; 668 N.Y.S.2d 11 (1st Dep’t. 1999): The Appellate Division, First Department, held that a fish retailer was entitled to summary judgment on landlord’s third-party claim against it for contribution because the complaining tenant (actress Linda Gray), sought only damages for economic loss, but that the trial court properly sustained landlord’s indemnification claim. Josh H. Kardisch represented the retailer.

Gomez v. G.R. Realty Corp., Index No. 13578/97 (Supreme Court, Bronx County, 1998): A trial court granted summary judgment dismissing a lead poisoning case against Josh Kardisch’s client because plaintiff failed to prove a harmful exposure in defendant’s premises. Court also rejected plaintiffs’ medical and environmental science experts as “speculative.”

While an associate and a partner at another law firm, Josh H. Kardisch, Esq., participated in the following reported cases that yielded favorable decisions for the client:

New York State Department of Environmental Conservation v. B.P. Cooperative Assn., Supreme Court, Albany County (1992): In a case of first impression in the State of New York, a trial court in Albany County held that companies which contract with the State to remediate hazardous waste sites are immune from “excessive cleanup” suits brought by primarily responsible parties/ land-owners. The court held that independent contractors acting in this capacity are “agents” of the State and are therefore protected by the Navigation Law. Mr. Kardisch wrote the argument that convinced the court to dismiss the suit against his firm’s client, the environmental contractor.

Keenan v. The Dow Chemical Company, 717 F. Supp. 799 (M.D. Fla 1989): A Federal Court of Appeals in Florida held that the Federal Insecticide and Rodenticide Act expressly preempt state court lawsuits based upon alleged inadequate warnings on pesticides. Mr. Kardisch worked on the team that represented the chemical company and wrote the successful Brief.

Viterbo v. The Dow Chemical Company,826 F.2d 420 (5th Cir. 1987): A Federal Court of Appeals in Louisiana held that a District Court in Texas had correctly dismissed a claim of deleterious exposure to phenoxy-herbicides because plaintiff’s expert’s opinions were shrouded in a “false aura of scientific infallibility”, and were non-probative, speculative and inadmissible. Mr. Kardisch worked on the Brief that yielded a favorable result for the chemical company.

Citibank N.A. v. S.K., 162 Misc. 2d 883, 618 N.Y.S.2d 993, 1994 N.Y. Misc. LEXIS 499 (Supreme Court, Suffolk County, 1994): Court held that service of process in a foreclosure action against a trust was properly accomplished where the trustee was an individual and the CPLR referred to the service of process on an individual. Mr. Kardisch represented Citibank.

H&R Indus. v. A.K., 899 F. Supp. 995 (E.D.N.Y. 1995): A Federal Court in New York stated that plaintiffs’ claims of product infringement and false advertising under the Lanham Act, as well as State tort claims of, inter alia, unfair competition, raised sufficient factual issues to go to a jury. Mr. Kardisch represented the defendant.

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