Notable Cases & Transactions
The Greater Syracuse Land Bank has received an additional $2 million for use in demolishing abandoned properties throughout the city. Please click here for more details from the bank’s executive director, Katelyn Wright.
It’s the time of year for the Greater Syracuse Land Bank to deliver its annual report to the City of Syracuse and the County of Onondaga. MRT is proud to represent the Land Bank and to have played an important role in the Land Bank’s work including:
Acquiring 1,295 properties
Selling 419 properties
Leveraging $16 million in private renovation investment
Returning $15.5 million in assessed value to taxable status
Demolishing 175 blighted properties
For more information see: http://syracuselandbank.org/
Thomas J. Fucillo recently successfully challenged a NYSDEC Regulatory Program Fee, receiving a Recalculation Request Determination from the Agency that resulted in nullification of the fee and a full refund for the client in the amount of $167,596.00.
The firm is proud to be part of the work underway by the Greater Syracuse Land Bank as it addresses the significant problem of vacant, abandoned and tax delinquent properties in the City of Syracuse. We have represented the Greater Syracuse Land Bank in its acquisition of over 800 such properties over the past two years and the subsequent sale of over 300 of those properties.
Click here for more details.
The Appellate Division, Third Department upheld a $1.29 Million judgment entered after a six day trial in Broome County Supreme Court. The Firm represented a disaster remediation contractor in a contract dispute with the owner of a building that sustained severe water and mold damage. The appeal was handled by Michael Balestra. A copy of the Appellate Division decision can be found here.
Michael J. Balestra obtained a jury verdict after a five day trial in Jefferson County Supreme Court finding that a casualty insurer improperly disclaimed insurance coverage for a fire loss at the clients’ home. The insurer disclaimed coverage for the loss and defended the litigation on the grounds that the clients intentionally caused the fire and made material misrepresentations to the insurer during the course of its investigation. The jury determined that the insurer failed to prove its defenses at trial.
U.S. District Court in Syracuse Grants Julian B. Modesti and Teresa M. Bennett's Motion for Appointment of Receiver to Enforce $4 Million Judgments against P.J. Simao. https://lnkd.in/eSqnBBd
- Julian B. Modesti and Teresa M. Bennett represent American Honda Finance Corporation in its effort to enforce approximately $4 million in judgments against Philip J. Simao (“P.J. Simao”), among others. When P.J. Simao failed to pay the judgments, American Honda Finance Corporation commenced an enforcement proceeding to recover the debt from a number of corporations and limited liability companies (LLCs) in which P.J. Simao holds a majority interest.
F. Paul Vellano, Jr. and Anna W. Richards are assisting a medium sized Syracuse business with the preparation of a stock ownership succession plan to achieve the client’s goals and minimize tax consequences. The plan involves an agreement which provides for the redemption of the owner’s stock and the subsequent purchase of stock by a key employee upon the owner’s death.
The Firm is representing a national bank in connection with the foreclosure of a resort lake residential development. The defendants intended to subdivide the premises but never completed the subdivision process. Various issues have been contested, including whether the premises should be sold in a single parcel or multiple parcels. Following a referee’s hearing, the referee sided with the bank and determined that the premises must be sold in one parcel, as the premises cannot be sold in multiple parcels without final subdivision approval. A motion to confirm the Referee’s Report and for a Judgment of Foreclosure and Sale is pending. Antonio E. Caruso, Teresa M. Bennett, and Anna W. Richards are representing the bank.
The firm is pleased to announce that it has been appointed to act as general counsel for the Watertown Local Development Corporation. Joseph W. Russell will be the attorney handling this matter.
Menter Firm has been hired as Jefferson County Industrial Development Agency's attorneys. Click here for more details.
The Firm represented a regional bank in connection with a $1,394,000 loan to be used for the construction of a new restaurant. The transaction involved a first priority leasehold mortgage in favor of the bank and subordinate ESCDC/SBA leasehold mortgages. Addison F. Vars and Anna Wilson Richards presented the lender in this transaction.
MR&T Attorney Thomas J. Fucillo (and former DEC Region 7 Regional Attorney) is representing licensed wildlife rehabilitator Cindy McGinley, owner of Rivendell Farm in the Town of Sullivan, in a proceeding to nullify a determination by DEC which denied her a permit to possess two does and which required that one be euthanized and the other released or euthanized. Deirdre is five years old and came to Cindy when she was found by a neighbor, only hours old. The second doe, Lily, is permanently blind. Lily lost her eyesight due to malnourishment in the wild and came under Cindy’s care when she was three months old. Although it was hoped that the blindness would be temporary, Lily is now a year old and it is now clear that the condition is permanent. Lily relies heavily on Deirdre (and Cindy). Cindy rehabilitated both does back to health, but did not release them believing that neither were adequately equipped to live in the wild. A DEC officer informed her that she could not lawfully possess them without a permit to possess wildlife. She immediately applied for that permit but it was denied because DEC considered her to be in violation of her rehabilitation license because she did not have a permit! During the argument of the Article 78 proceeding to be heard on Tuesday, September 8 at 10:30 a.m. by Hon. Donald F. Cerio, Jr. in Madison County Supreme Court in Wampsville, Tom Fucillo, will argue that the denial was arbitrary and capricious and had no rational basis in fact.
Mitchell J. Katz and Michael J. Balestra recently obtained a $1.29 million judgment after a six day trial in Broome County Supreme Court. Menter, Rudin & Trivelpiece, P.C. represented a disaster remediation contractor in a contract dispute with the owner of a building that sustained severe water and mold damage.
Thomas J. Fucillo recently won an appeal to the Commissioner of the New York State DEC brought on behalf of the Town of Harrison, New York. The Commissioner granted the Town’s appeal of an Administrative Law Judge’s ruling in a wetland permit proceeding. The Town was joined in its appeal by DEC Staff. The Decision enables the Town to begin an important project for construction of youth athletic fields on a brownfield cleanup site. A copy of the Decision is available here.
Thomas J. Fucillo recently successfully appealed a Combined Regulatory Fee and Surcharge assessed against his client by NYSDEC, for hazardous waste generated during a cleanup. The entire assessment of $175,000 was rescinded as a result of the appeal.
In December of 2014, Jeffrey A. Dove confirmed a Chapter 11 plan in the Index Recovery Company bankruptcy in less than 90 days after filing the petition. Non-insider creditors were paid 100% of their allowed claims while insider-investor creditors have received approximately 43% of their claims to date.
- Julian B. Modesti and Teresa M. Bennett successfully defend County of Jefferson in Eminent Domain Proceeding
The firm has been selected as general counsel to the New York Land Bank Association, an affiliated group of the first 10 New York State land banks formed under the New York State Land Bank Act to address the serious problem of tax delinquent, vacant and abandoned properties across the State. The Association is made up of land banks from across the entire State, stretching from Chautauqua County in the west to Suffolk County in the east. We look forward to working with the Association in its effort to pool the collective resources of individual land banks to achieve important goals for all land banks.
Thomas Fucillo recently won an appeal to the Appellate Division, Fourth Department in a case involving adverse possession of disputed commercial land. See Appellate Decision here.
The firm represented a general contractor that assumed the role of lender to a subcontractor in financial distress. In addition, to alleviate the subcontractor's cash flow problems, the firm's client purchased equipment from the subcontractor; the proceeds of sale were used to pay down obigations to the general contractor. The purchase was documented by a Bill of Sale. The subcontractor filed for bankruptcy protection under Chapter 11 and asserted that the Bill of Sale was not intended as a sale, but was a disguised financing transaction. On motion, the bankruptcy court held that New York law permitted inquiry with regard to the intent of the transaction, and ordered an evidentiary hearing. Depositions were taken and documents exchanged. Following the evidentiary hearing the bankruptcy court held in a written decision (click here) that the Bill of Sale did convey title to the general contractor. The bankruptcy court also granted the general contractor's motion to dismiss the bankruptcy case. Mitchell J. Katz and Adam F. Kinney handled the matter.
The firm defended one half of the owners of a closely held limited liability company in litigation pending in the Commercial Division (Onondaga) which sought to compel enforcement of an alleged agreement to sell their interest and to declare that the transfer of interests among them resulted in the loss of their membership status. A motion dismissed as a matter of law the cause of action concerning the alleged agreement to sell. The looming trial date caused the parties to find common ground days before trial resulting in a cooperative effort with Plaintiffs' counsel to draft and close on a business transaction one business day before the trial resulting in the sale of all interests to the Firm's clients. The litigation was handled by Mitchell J. Katz and Michael J. Balestra. The business transaction was handled by John P. Sidd.
The firm represented a former employee of Davis-Standard, who became employed with SAM North America. Davis –Standard sued to enforce two restrictive covenants, one in an employment agreement and the other in a stockholder’s agreement. The Court entered a temporary restraining order but on the hearing on the motion, denied the request for a preliminary injunction, and vacated the temporary restraining order. Mitchell Katz handled the case. A copy of the Decision may be found here.
Thomas J. Fucillo recently received two favorable decisions: the first, by Supreme Court, Onondaga County, granting the owner of a racetrack summary judgment in a personal injury action brought on behalf of a person allegedly inujured at that facility; and the second, by Supreme Court, Cayuga County, granting an Article 78 Petition and dismissing a resolution of the Town of Sennett ZBA, which denied his client's appeal of a determination by the Town's Code Enforcement Officer.
Thomas J. Fucillo recently won an Article 78 Special Proceeding brought on behalf of a neighbor, which nullified the expansion of a non-conforming commercial use within a residential zoning district in the Town of Sennett. In a decision by Judge Thomas Leone, a Zoning Board of Appeals Resolution which allowed the expansion of a restaurant’s operations to the second floor, which had historically been used as a residence, was rescinded.
- Julian B. Modesti was quoted in the New York Law Journal with regard to his successful defense of an appeal, involving a will dispute, to the Supreme Court, Appellate Division, of the Fourth Department.
Endicott Interconnect Technologies, Inc. is a specialty electronics manufacturing company that filed a Chapter 11 case to achieve a sale of its assets. Jeffrey A. Dove represented the owners of a company who also had funded secured credit facilities to the company. Mr. Dove was able to negotiate a purchase agreement that resolved the Creditors’ Committee’s concerns regarding insider status and transactions, and which ultimately was the successful bid at an auction of the company’s assets.
Menter, Rudin & Trivelpiece, P.C. recently represented an Industrial Development Agency in relation to the sale and development of a $30 million facility to include multiple dairy product manufacturing plants and a tourism destination including the granting of certain financial assistance to the developer in exchange for payments in lieu of taxes. John Sidd was the firm attorney involved in this transaction.
- Julian B. Modesti and Teresa M. Bennett successfully defend an appeal to the U.S. Court of Appeals for the Second Circuit, from a $3.6 million judgment obtained on behalf of client American Honda Finance Corporation.
Mitchell J. Katz recently successfully argued an appeal before the 2nd Circuit Court of Appeals. On March 25, 2013, the Court of Appeals issued its Decision in favor of the firm’s client, Algonquin Power Co., and upheld the Decision of the District Court for the Northern District of New York. In its Decision, the Court of Appeals affirmed that Algonquin had properly exercised its rights and remedies after a default by the borrower under a Trust Indenture and incorporated loan documents involving the construction of hydroelectric facilities. Teresa M. Bennett was credited on the brief. A copy of the Decision can be found here.
Jeffrey A. Dove recently argued a case involving a disputed security interest in an engineering malpractice claim and its proceeds before the 2nd Circuit Court of Appeals. On January 30, 2013, the Court of Appeals issued its decision in favor of the firm’s client, Algonquin Power Co., and reversed the decisions of both the Bankruptcy Court and District Court for the Northern District of New York. In its Decision, the Circuit Court of Appeals agreed with Mr. Dove’s argument and found that while Article 9 of the Uniform Commercial Code did not apply to the original malpractice claim, the loan documents in question did effectively convey a security interest under New York’s common law of assignment. As a result, Algonquin’s claim to a security interest in an escrow account holding approximately $10 million in proceeds of the malpractice judgment was validated. A copy of the Decision can be found here.
Jeffrey Dove recently represented the Skaneateles Recreation Charitable Trust on a pro bono basis in its dispute with the Town of Skaneateles. The Town asserted that it owned all of the furniture, fixtures and equipment used in the operation of the Skaneateles YMCA and Community Center and demanded either the return of the equipment or a significant cash payment. As a result of the settlement negotiated by Mr. Dove, the Skaneateles Recreation Charitable Trust acquired undisputed title to the equipment for less than 20% of the amount demanded by the Town and the lawsuit commenced by the Town was dismissed.
- Thomas Fucillo recently obtained judgment on behalf of his client in a boundary line dispute involving a commercial property. A lawsuit brought by a neighbor contended that a survey showed that the boundary line ran right to the edge of our client’s building, and that certain physical structures that are integral to the client’s business encroach upon the neighbor’s parcel. The neighbor sought removal of the structures. Menter, Rudin & Trivelpiece, P.C. counterclaimed for adverse possession and following a two day evidentiary hearing on Menter's motion for summary judgment, Supreme Court, Oswego County, granted the motion, dismissed the complaint, and established a new boundary line outside of the portion of the property used by the firm ’s client.
Menter, Rudin & Trivelpiece, P.C. was retained to represent a manufacturer/ distributor with respect to a dispute arising under a professional services agreement related to the development of commercial property for use as a warehouse. As the contract provided for non -binding mediation, and the amount in dispute was less than $150,000, the firm advised that litigation should be avoided due to the economics involved and therefore a concerted effort be made to use the mediation process to actually resolve the dispute if at all possible. The firm worked closely with the client’s team to develop all of the relevant legal issues, assemble all facts and relevant documents, understand the likely defenses and put together a mediation plan. The matter was settled toward the end of a six hour guided mediation session. Mitchell J. Katz and Teresa M. Bennett were the attorneys handling the matter.
- Menter, Rudin & Trivelpiece, P.C. represented several upstate, downstate and out of state individual and entity defendants, in an action brought against them alleging common law fraud, violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), and other tort causes of action. More details here.
Mitchell Katz and Michael Balestra successfully concluded an arbitration involving a business dispute between professionals. Arbitration was elected by the parties after litigation was commenced to maintain confidentiality and to reduce the costs of resolving the dispute.
- Julian B. Modesti successfully defends Universal Forest Products, Inc. (“Universal Forest Products”) in a multi-million dollar construction litigation case on appeal in the Supreme Court, Appellate Division, Second Department (Brooklyn, New York).
- Byrne Dairy, Inc. v. Board of Education, Utica City School District, et al.
- Michelle McQueer, Daniel McQueer, Steven Demick, William Hadlock and Crayton Buck v. Town Board for the Town of Hammond
- Algonquin Power Income Fund, et al., v. Christine Falls of New York, Inc., et al., 2012 U.S. Dist. LEXIS ____ (NDNY, 2012).
- American Honda Finance Company v. V.M. Paolozzi Imports, Inc. et al., Case No.: 7:10-cv-00155 (GTS/ATB) (NDNY, March 29, 2012).
In 2011, Julian B. Modesti served as the chair of a three-person arbitration panel involving claims by an employee of a Fortune 500 insurance company for breach of an insurance broker commission agreement. The insurance company counterclaimed for breach of the same agreement. Following supervision of the parties' discovery, an arbitration hearing was held. Mr. Modesti and his co-arbitrators deliberated and drafted an extensive written decision which addressed issues such as forfeiture of commissions, wrongful solicitation of customers and employees, consequential damages and attorneys' fees. The arbitration was confidential.
- Lawrence A. Perkins v. The State of New York, Court of Claims, Claim No. 117920, Motion No. M-80260
- Kaminski v. Comm'r of Oneida County Dep't. Of Soc. Servs., et al., 2011 U.S. Dist. 86776 (N.D.N.Y. August 5, 2011)
- Weber, et al., v. Align Technology, Inc., et. al., 2010 U.S. Dist. Lexis 54187 (N.D.N.Y. June 2, 2010)
- Am. Honda Fin. Corp. v. V.M. Paolozzi Imps, Inc., et al., 2010 U.S. Dist.28767 (N.D.N.Y. March 12, 2010)
- Algonquin Power Income Fund, et al., v. Christine Falls of New York, Inc., et al., 362 Fed. Appx. 151 (2d Cir. 2010)
- New York State Electric & Gas Corporation vs. First Energy Corporation
- Trafalgar Power, Inc. et al. v. Aetna Life Insurance Company et al.
- Nice N Easy Grocery Shoppes, Inc. vs. Andrew Madonia
- Windsong Lane Farms vs. Telmark, LLC, et al.
- Village of Lacona v. New York State Dep't of Ag. & Mkts., 51 A.D.3d 1319 (3rd Dep't 2008)
- County of Orange v. Village of Kiryas Joel, 44 A.D.3d 765 (2nd Dep't 2007)
- Mead v. United States of America, et al, 2007 Bankr. LEXIS 2532 (Bankr. M.D. Fla. March 28, 2007)
- Celi v. First Nat'l Bank (In re Layo), 460 F.3d 289 (2d Cir. 2006)
- In re Agway, Inc., 2006 Bankr. Lexis 3648 (Bankr. N.D.N.Y. 2006)
- Village of Liverpool v. Town of Salina Planning Board, et al., 13 Misc.2d 732 (Onondaga Cty. 2006)
- Norbrook Labs. Ltd. v. G.C. Hanford Mfg. Co., 2004 U.S. Dist. LEXIS 5868 (N.D.N.Y. 2004)
- Niagara Mohawk Power Corp. v. Consolidated Rail Corp., et al., 291 F.Supp. 2d 105 (NDNY 2003)
- Telmark, LLC, et al. v. Grunder, 305 A.D.2d 981 (4th Dep't 2003)
- Estate of Hart v. R.R. Merrill, Inc., Yawga Energy Products et al. Hoppe v. Yawga Energy Products et al.
- In re Ames Department Stores, Inc.
- Debartolo Properties Management, Inc, et. al v. Deborah Devan, as trustee of Merry-Go Round Enterprises, Inc.
- In re Hilling Lumber Co.
- In re Cecil Edward Byrnes, dba Byrnes Centennial Dairy Farm
- In re Larry Beam, dba B&B Metals
- Telmark, LLC v Gonyo Brothers Dairy Farm and Bordeau Brothers, Inc.
- County of Orange v. Village of Kiryas Joel
- Menter, Rudin & Trivelpiece, P.C. has successfully represented clients in a variety of business and financing transactions