Firm News

On January 20, 2003, in Spanierman Gallery Profit Sharing Plan v. Merritt, 2003 U.S. Dist. Lexis 1444 (S.D.N.Y.), a critical ruling on the issues of jurisdiction, comity and issue preclusion was made. Based on Kucker, Marino, Winiarsky, & Bittens, LLP’s petition, the federal district court refused to bar a plaintiff art gallery from continuing to prosecute its legal claims despite a judgment in favor of the federal defendant against another party which was rendered in a state court action in which the plaintiff art gallery was not a participant. Kucker, Marino, Winiarsky, & Bittens defeated the defendant’s attempts to impose issue preclusion on the plaintiff.

On March 14, 2003, in 9394 LLC et al. v. Farris, et al., 304 A.D.2d 804 (2nd Dep’t 2003), the Appellate Division of the New York Supreme Court protected the plaintiffs’ critical rights to obtain the notice required by CPLR 3211(c) before a motion to dismiss may be converted to a summary judgment motion. The civil complaint which Kucker, Marino, Winiarsky, & Bittens, LLP (Kucker, Marino, Winiarsky, & Bittens) filed on plaintiffs’ behalf alleged more than a million dollars in damages caused by defendants’ unlawful utilization of residential premises for business uses. In error the trial court (Lefkowitz, J.) dismissed plaintiffs’ damages claims. Kucker, Marino, Winiarsky, & Bittens successfully appealed and obtained reversal by the Appellate Division, Second Department. The appellate court agreed with Kucker, Marino, Winiarsky, & Bittens that the trial court had improvidently converted defendants’ motion to dismiss into a motion for summary judgment without providing the notice required by CPLR 3211(c). The Appellate Division further held that, based on the facts as alleged, the complaint was legally sufficient to withstand a motion to dismiss for alleged failure to state a cause of action, and accordingly the complaint was reinstated. Plaintiffs could proceed with their damages claims and certain requests for injunctive relief.