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On April 11, 2003, in 320 West 13th Realty LLC v. Avanade Inc., 03 CV 1579 (JSR) (S.D.N.Y.), a federal district court rendered an important decision concerning motions to remand pursuant to 28 U.S.C. §1447(c), the absence of complete diversity among the parties and the avoidance of duplicative litigation. The civil action began as a multi-million dollar commercial dispute between two plaintiffs, a New York limited liability company and a New York corporation, both represented by Kucker, Marino, Winiarsky, & Bittens, LLP (Kucker, Marino, Winiarsky, & Bittens), against defendant Avanade Inc., a Washington state corporation. The U.S. District Court for the Southern District of New York (Rakoff, J.), ruled that the action must be returned to New York state court, as requested by Kucker, Marino, Winiarsky, & Bittens’s 28 U.S.C. §1447(c) motion for remand. In ruling for plaintiffs, the court agreed with Kucker, Marino, Winiarsky, & Bittens that Avanade’s joinder of a third-party defendant, Wolf Shevack, Inc., a New York corporation, under circumstances which compelled plaintiffs to raise their own third-party claims against WSI, made the third-party defendant a necessary party under Fed. Rule Civ. P. 19. Because the federal court did not have diversity jurisdiction to entertain plaintiffs’ third-party claims against WSI, the only court in which all of the parties’ claims and counterclaims could be heard was the New York state court. A remand order was issued, returning the action to state court.

Landlords are often insistent on procuring personal or other forms of guaranties when entering into a lease with a tenant. Unfortunately, however, while much time and effort is often spent on securing the form and material terms of the guaranty, landlords and their counsel are well advised to make similar efforts to take the necessary precautionary steps to ensure that the guaranty they worked so hard to acquire can indeed one day be enforced in the event of default by the principal debtor.

In Elof Hansson USA Inc. v Osterloh, Index No. 52628/2012 (Sup. Ct., Westchester Co. 2013) (Scheinkman, J.), Kucker, Marino, Winiarsky, & Bittens, LLP represented employer in lawsuit against former employees with causes of action for breach of fiduciary duties, fraud and faithless servant doctrine.

In Shred-it International Inc. v Elof Hansson USA Inc. (Del. Sup. Ct., C.A. No. N12C-06-087 JRJ-C CLD), with the assistance of local counsel, Kucker, Marino, Winiarsky, & Bittens, LLP successfully defended client in a complex civil action venued in the Commercial Division of the Delaware Superior Court.

On August 11, 2011, in 61 Fifth Ave., LLC v Wilshire Limited, Index 106226/11 (Sup.Ct., N.Y. Co., Aug. 11, 2011) (Stallman, J.), Kucker, Marino, Winiarsky, & Bittens, LLP achieved an Order which granted a petitioner’s application for a RPAPL §881 Order authorizing petitioner to enter the roof of respondent’s adjacent premises and install “roof protection” as needed before construction commences for plaintiff’s high rise building.

On July 6, 2012, in Edwin Perne v. Elof Hansson, Inc., Index 57992/2011 (Sup.Ct., Westchester Co., July 6, 2012) (Giacomo, J.), Kucker, Marino, Winiarsky, & Bittens, LLP won an Order granting defendant Elof Hansson’s pre-answer CPLR 3024 motion to strike four paragraphs in plaintiff’s complaint for breach of an alleged written employment agreement and alleged age discrimination in which plaintiff violated CPLR 4547 by discussing the parties’ settlement negotiations prior to commencement of the action and plaintiff contended that defendant’s participation in settlement discussions was because it allegedly recognized the employment agreement was enforceable – when in fact defendant denied the existence of a written employment agreement.

On October 8, 2012, in Edwin Perne v Elof Hansson, Inc., Index 57992/2011 (Sup. Ct., Westchester Co., Oct. 8, 2012) (Giacomo, J.), Kucker, Marino, Winiarsky, & Bittens, LLP won an Order granting Elof Hansson’s CPLR 3212 cross-motion for summary judgment and dismissal of four of plaintiff Perne’s five causes of action, including alleged age discrimination, retaliation, fraud and unjust enrichment.

On June 13, 2012 in 61 Fifth Ave., LLC v Wilshire Limited, Index 101995/12 (Sup.Ct., N.Y. Co., June 13, 2012) (Tingling, J.), Kucker, Marino, Winiarsky, & Bittens, LLP represented a plaintiff who defeated the defendants’ CPLR 2004 motion for a stay which sought a delay in the court’s hearing of plaintiff’s motion for an Order authorizing plaintiff to enter the adjacent premises owned by defendant and install extensions to chimneys and exhaust flues.

On July 5, 2012, in 61 Fifth Ave., LLC v Wilshire Limited, Index 101995/12 (Sup.Ct., N.Y. Co., July 5, 2012) (Tingling, J.), Kucker, Marino, Winiarsky, & Bittens, LLP won an Order which authorized plaintiff to obtain access and permission to enter defendants’ adjacent premises to perform certain work for extensions of flues and chimneys so that plaintiff may continue the construction of a high rise building – NYC Administrative Code 27-860.

On May 16, 2013, in 320 W. 13th St., LLC v. Wolf Shevack, Inc., 2013 N.Y. Misc. LEXIS 2297 (N.Y. Sup. Ct. May 16, 2013) (Kenney, J.), in a Commercial Lease Dispute/Complex Civil Action on the defendants’ motion for renewal after producing certain documents, Kucker, Marino, Winiarsky, & Bittens, LLP succeeded in eliciting an Order which continues the negative inference against defendants for their spoliation of key documents that remain missing.