Cases of Interest
As a general practice law firm, Vishnick McGovern Milizio LLP has enjoyed favorable judgments in various areas of the law. This section of our website showcases a sampling of decisions that our skilled attorneys have been able to achieve.
Partner Andrew A. Kimler and associates, Michael J. Stacchini and Eun Chong Jo (EJ) Win Jury Trial Ho Myung Moolsan Co. Ltd. v. Manitou Mineral Water Inc., 12/10/10 N.Y.L.J.
A trial jury ruled unanimously in favor of Manitou on all claims in South Korean mineral water reseller Moolsan’s contract breach action. In pretrial rulings, the Federal district court rejected Moolsan’s assertion that the U.N. Convention for the International Sale of Goods (CISG) applied. In concluding that New York law applied, the court noted that Moolsan had relied exclusively on New York law, not the CISG, until the close of discovery. The court also determined that contrary to Moolsan’s claim that their agreement was an output contract, the parties’ agreement was a hybrid installment-requirements contract. After the contract’s first year, the contract required a minimum quantity of orders of $1 million worth of water annually. As a result, the first year of the parties’ contract was an installment contract. Also, an expert’s report calculating Moolsan’s lost profits as exceeding $133 million was excluded as speculative and unreliable. Further, the court determined Moolsan could not establish lost profits. Its evidence going to lost profits was deemed to consist of “wildly speculative” sales projections supported neither by date of actual sales nor independent market Research.
Senior Attorney Michael J. Stacchini Prevails In The Appellate Division Walter v. Starbird-Veltidi, 911 N.Y.S. 2d 120, (2nd Dept. 2010).
Plaintiff and Defendant (who was represented by VMM) were divorced in 1998. The Plaintiff sued the Defendant to reform a portion of the parties’ divorce settlement and judgment on the grounds that the provisions relating to the Plaintiff’s retirement benefits were unconscionable and contrary to the parties’ intent. The lower court granted the Defendant’s motion to dismiss the complaint on the grounds that the allegations lacked merit and were barred by the applicable statute of limitations. The Appellate Division upheld the lower court’s ruling.
Senior Partner Bernard Vishnick Wins on Will Contest of Child Status
Estate of Gilmore, 1/19/10 N.Y.L.J. Petition and Motion, of first impression, by Two non-marital children who moved to determine in this probate proceeding their status as alleged after known children entitled to benefits under the after-born statute. The decedent was survived by 11 children, but the Will benefitted only one child from his first marriage. Estates Powers and Trust Law §5-3.2 created a rule of presumed intent for a testator who may have inadvertently omitted a child born after a Will's execution. Thus the non-marital alleged after known children sought to claim a portion of the inheritance as after-born children. Mr. Vishnick was successful in representing the decedent's child who was named in the Will arguing that there is no ambiguity in or other rights provided to such children under the statute. The Court agreed, ruling that it would not exceed its authority by reading claimants' language into the law, nor ignore the statute's language, concluding the claimants were not entitled to any rights under the after-born statute.
Partner Andrew A. Kimler and Associate Eun Chong Jo (EJ) Win Case Involving Major Mortgage Company
Laskin v. Bank of America, N.A., et al., 8/21/09 N.Y.L.J. (Plaintiff sued a mortgage broker, Countrywide Home Loans and Bank of America in connection with loans that were made to him, alleging, among other things, that the loans should be cancelled because he was a victim of predatory lending. The Court granted Countrywide's motion for summary judgment and dismissed the claims against Countrywide noting, among other things, that the Plaintiff failed to demonstrate any specific act by Countrywide that was misleading or deceptive and that the Plaintiff had timely received the required disclosures at closing, thus satisfying the federal disclosure requirements. The Court also concluded Plaintiff failed to act within the statutory period, so his right to rescind the subject loans had expired. This case was argued by Andrew A. Kimler, Esq.)
Senior Attorney, Michael J. Stacchini Prevails In The Appellate Division
Pinkava v. Yurkiw, 64 A.D.3d 690, 882 N.Y.S.2d 687 (2nd Dept. 2009)(Defendent had moved to dismiss Plaintiffs' complaint in which Plaintiffs sought specific performance of an oral agreement that the Plaintiffs had with the Defendent and her now deceased husband to sell their interest in an apartment building to the Plaintiffs. The Defendent argued that the parties did not have an oral agreement and that their partial performance of the agreement that included partial payment of the purchase price and contribution of time spent managing the property were insufficient evidence to prove an enforceable oral agreement. The Appellate Court upheld the ruling of the lower court that denied Defendent's motion and found that Plaintiffs' allegations of partial performance of the agreement were sufficient to show the existence of an enforceable agreement).
Elizabeth Street Inc. v. Oscar Z. Ianello Associates Inc.,
4/5/07 N.Y.L.J. 18 (col. 1) (Plaintiffs claimed that the now-deceased landlord had promised that upon his death, he would leave plaintiffs ½ interest in a building if they would renovate parts of it and sought specific performance of the alleged 1989 agreement. Court found that none of the underlying leases evidenced an intent to transfer anything other than a leasehold interest and therefore found no enforceable agreement existed; argued by Andrew A. Kimler, Esq.)
Scarsdale Milk Farms, Inc. v. Scarsdale Equities Associates,
12/4/02 N.Y.L.J. 24 (col. 5) (By seeking to alter purchase option in lease, landlord unreasonably withheld consent to assign lease and held liable for $74,870.10 and attorneys fees and disbursements of $24,399.15; argued by Andrew A. Kimler, Esq.)
Korea First Bank New York Agency v. World Bridge, Inc.,
269 A.D.2d 233, 702 N.Y.S.2d 815 (1st Dept. 2000) (Motion by bank for renewal must be based on material facts unknown or unavailable at the time of the original motion; argued by Andrew A. Kimler, Esq.)
Bruce Rubino v. Loretta Csikortos,
258 A.D.2d 638, 683 N.Y.S.2d 924 (2d Dept. 1999) ( In order to set aside a confession of judgment, a person must commence a new lawsuit; argued by Joseph Trotti, Esq.)
In-Sook Chang v. Dong Choi, 247 A.D.2d 279,
668 N.Y.S.2d 615 (1st Dept. 1999) (Appellate court upheld jury verdict of $231,810 arising out of unpaid loan, finding it not against the weight of the evidence; argued by Andrew A. Kimler, Esq.)
Walker & Zanger v. Leon Zanger,
245 A.D.2d 144, 666 N.Y.S.2d 152 (1st Dept. 1997) (Trial court properly enjoined majority shareholders' attempt to remove corporate president and court's appointment of a tie-breaking director was consistent with shareholder agreement; argued by Andrew A. Kimler, Esq.)
Walker & Zanger (West Coast), Ltd. v. Leon Zanger,
213 A.D.2d 287, 624 N.Y.S.2d 827 (1st Dept. 1995) (Trial court properly held that corporation must be represented by neutral counsel in litigation pertaining to third party; argued by Andrew A. Kimler, Esq.)
Michael Segal v. McDaniel Ford, Inc.,
201 A.D.2d 717, 608 N.Y.S.2d 324 (2d Dept. 1994) (Plaintiff had submitted sufficient evidence to sustain his claims for damages arising from improper repairs and loss of use of vehicle; argued by Joseph Trotti, Esq.)
Theresa Babbo v. Gaetano Babbo,
191 A.D.2d 606, 595 N.Y.S.2d 328 (2d Dept. 1993) (Trial court properly denied motion to vacate matrimonial judgment since defendant failed to demonstrate acceptable excuse for default nor meritorious defenses; argued by Joseph Trotti, Esq.)
Matter of Estate of Anna Druck,
3/2/05 N.Y.L.J. 20 (col. 1) (Surrogate's Court denied Trustees' claim for reimbursement of principal payments to life beneficiary holding that payments made out of the trust corpus were proper, given the limited nature of invasion, and that such payments for lifetime beneficiary's support were authorized under the discretion given to trustees to invade trust corpus for such purpose; argued by Bernard Vishnick, Esq.)