Recent Law Watch ResultsLoislaw LawWatch is provided as a service of Loislaw.com, a division of Aspen Publishing. Loislaw LawWatch provides access to recent cases based on the search criteria provided by your section. The search criteria may be by area of practice, by court, and /or by date. The NYSBA also provides a basic level of free legal research to all members. You may access free legal research from Loislaw through your MyNYSBA page or through For Attorneys. director corporation - director corporationBRIDGE STREET HOMEOWNERS ASSOCIATION v. BRICK CONDOMINIUM DEVELOPERS, 26507/06 (1-23-2007) 26507/06 January 23, 2007 Upon the foregoing papers in this action by Bridge Street Homeowners Association (BSHA) and 37 individual residential unit owners of the Bridge No. 50 Condominium (Bridge Street Condominium) (collectively, plaintiffs) alleging 11 causes of action, 223 Water Street, LLC and Joshua Guttman a/k/a Joshua Gutman (Guttman) cross-move for an order: (1) pursuant to CPLR 3211 (a) (1), (3), and (7), and General Business Law § 352-e (1) (b), dismissing plaintiffs' complaint as against them, and (2) correcting ... -FACTS- In September 2003, 223 Water Street, LLC, the owner of a building located at 50 Bridge Street, in Brooklyn, New York, entered into a contract with Brick, pursuant to which Brick purchased the fourth, fifth, sixth, and penthouse floors of the building for... director corporation - director corporation ESTATE OF SHEFNER v. BÉRAUDIERE, 112525/11 (5-31-2012) No. 112525/11 May 31, 2012 Plaintiffs move, pursuant to CPLR 6211, to confirm an ex-parte order of attachment dated November 14, 2001 (the Attachment Order). Defendants move, pursuant to CPLR 327, to dismiss the complaint. Yves Bouvier (Bouvier) moves, pursuant to CPLR 1012 (a), or alternatively, CPLR 1013, for leave to intervene as a party defendant, based upon his alleged ownership interest in a painting by the artist Willem de Kooning entitled Woman in the Garden, II, 1967 (the de Kooning Painting). The de Kooning Painting was... Parties and Procedural Background Plaintiffs are the Estate of Lorette Jolles Shefner (Jolles) Page 3 by its executors, Jolles's son Barry Shefner (Barry), Jolles's daughter Ariela Braun (Ariela), Leon Miller, and a trust set up for Ariela's benefit. Galerie Jacques de la Béraudière (Galerie Jacques)... antitrust - antitrust SOUTHERN UNION COMPANY v. U.S., 11-94 (U.S. 6-21-2012) No. 11-94 Argued March 19, 2012, Decided June 21, 2012 OCTOBER TERM, 2011 As I have said, the dissenters thought that the Sixth Amendment did not require a jury to find any of these sentencing facts. Why, asked the dissenters, should Congress' or a State's desire for greater sentencing uniformity achieved through statutes seeking more uniform treatment (of similar offenders committing similar offenses in similar ways) suddenly produce new Sixth Amendment jury trial requirements? Those requirements would work against greater sentencing fairness. To treat all sentencing facts (where so specified in a statute or rule) as if they were elements of the offense could lead Congress simply to set high maximum ranges for each crime, thereby avoiding Apprendi's jury trial requirement. Alternatively, Congress might enact statutes that more... patent - patent FEDERAL COMMUNICATIONS COMMISSION v. FOX TELEVISION STATIONS, 10-1293 (U.S. 6-21-2012) No. 10-1293 Argued January 10, 2012, Decided June 21, 2012[fn*] OCTOBER TERM, 2011 Title 18 U. S. C. § 1464 bans the broadcast of "any obscene, indecent, or profane language." The Federal Communications Commission (Commission) began enforcing § 1464 in the 1970's. In FCC v. Pacifica Foundation, 438 U. S. 726, this Court found that the Commission's order banning George Carlin's "Filthy Words" monologue passed First Amendment scrutiny, but did not decide whether "an occasional expletive . . . would justify any sanction," id., at 750. In the ensuing years, the Commission went from ... B It was against this regulatory background that the three incidents of alleged indecency at issue here took place. First, in the 2002 Billboard Music Awards, broadcast by respondent Fox Television Stations, Inc., the... EEOC - EEOC DORSEY v. U.S., 11-5683 (U.S. 6-21-2012) Nos. 11-5683, 11-5721 Argued April 17, 2012, Decided June 21, 2012[fn*] OCTOBER TERM, 2011 I The underlying question before us is one of congressional intent as revealed in the Fair Sentencing Act's language, structure, and basic objectives. Did Congress intend the Act's more lenient penalties to apply to pre-Act offenders sentenced after the Act took effect? B We add one final point. Several arguments we have discussed involve the language of statutes that determine how new Guidelines take effect. Supra, at 13-14. What about those who committed an offense prior to August 3 and were sentenced after August 3 but before November 1, 2010?a period after the new Act's effective date but before the new Guidelines first took effect? Do the Fair Sentencing Act's new mandatory minimums apply to them? That conclusion simply does not follow. For one... second circuit - second circuit STENGEL v. BLACK, 11-2098-cv (2nd Cir. 6-21-2012) No. 11-2098-cv. June 21, 2012. Plaintiff Isaac Stengel, proceeding pro se, appeals the dismissal of his complaint for, among other reasons, lack of personal jurisdiction. Stengel's complaint alleged that defendant Bradford Black violated various federal criminal statutes in purchasing a diamond in Ohio from a third person who had purchased it from Stengel in New York using a fraudulent check. Black separately moves this court to impose sanctions against Stengel pursuant to Fed. R. App. P. 38. We review de novo the dismissal of an ... In reviewing Stengel's challenge to the district court's adverse determination as to personal jurisdiction, we are mindful that on three prior occasions, New York federal and state courts have dismissed Stengel's claims arising out of the same facts alleged here, concluding that New York's long-arm... second circuit - second circuit LENZ v. YOUNG, 11-2255-cv (2nd Cir. 6-21-2012) No. 11-2255-cv. June 21, 2012. The first article, published in the August 13th edition of New York Newsday, titled "Lawsuits: Trabich Transferred Contracts Because of Debt", discusses two civil suits brought by Young and Saint Annes against Lenz and his former business partner, Neal Trabich. As described in the article, those suits "accuse[] Global Golf owner Neal Trabich of conspiring with a top Long Island insurance executive to transfer the lucrative contract for the Bethpage State Park golf concessions so Trabich could avoid ... Under New York law, "it is for the court to decide whether the statements complained of are reasonably susceptible of a defamatory connotation, thus warranting submission of the issue to the trier of fact." Silsdorf v. Levine, 449 N.E.2d 716, 719 (N.Y. 1983) (internal quotation marks omitted). In so doing,... second circuit - second circuit ERCOLE v. LAHOOD, 11-1780-cv (2nd Cir. 6-21-2012) No. 11-1780-cv. June 21, 2012. Appellant Joseph R. Ercole, proceeding pro se, appeals from the district court's judgment granting the defendant's motion to dismiss the claims in Ercole's third amended complaint, which were brought under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., the Administrative Procedure Act, 5 U.S.C. § 500 et seq., the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. § 4301 et seq., the ... This Court reviews "de novo a district court's dismissal of a complaint pursuant to Rule 12(b)(6), construing the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff's favor." Chambers v. Time Warner, Inc., 282 F.3d 147,... second circuit - second circuit SNYDER v. NEW YORK STATE EDUCATION DEPARTMENT, 11-1101 (2nd Cir. 6-21-2012) No. 11-1101. June 21, 2012. This Court reviews a district court's denial of a Rule 59(a) motion for a new trial for abuse of discretion. See Munafo v. Metro. Transp. Auth., 381 F.3d 99, 105 (2d Cir. 2004). "A motion for a new trial ordinarily should not be granted unless the trial court is convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice." Lightfoot v. Union Carbide Corp., 110 F.3d 898, 911 (2d Cir. 1997) (internal quotation marks and brackets omitted). Upon review, ... I. Jury Instructions On appeal, Appellants argue that the district court gave several erroneous jury instructions. Under Fed. R. Civ. P. 51(d)(1), a party may assign error based on an erroneous jury instruction "if that party properly objected." If a party does not receive the... second circuit - second circuit EATONI ERGONOMICS v. RESEARCH IN MOTION CORP., 11-5328-cv (2nd Cir. 6-21-2012) No. 11-5328-cv. June 21, 2012. Plaintiff Eatoni Ergonomics, Inc. ("Eatoni") appeals from (1) the confirmation of a June 8, 2010 arbitration award for defendants Research in Motion Corp. and Research in Motion Ltd. (collectively, "RIM") on Eatoni's claims that RIM breached its obligations under an agreement settling litigation in the United States District Court for the Northern District of Texas relating to RIM's alleged infringement of Eatoni's patent for "reduced QWERTY" keyboard technology for cellular telephones; and (2) the ... second circuit - second circuit ALLEN v. MATTINGLY, 11-1613-cv (2nd Cir. 6-21-2012) No. 11-1613-cv. June 21, 2012. "We review dismissal of a cause of action under Fed. R. Civ. P. 12(b)(1) or 12(b)(6) de novo." Jaghory v. N.Y. State Dep't of Educ., 131 F.3d 326, 329 (2d Cir. 1997). Dismissal of a case for lack of subject matter jurisdiction under Rule 12(b)(1) is proper "when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). To survive a Rule 12(b)(6) motion to dismiss, the complaint must plead "enough facts to state a claim ... We reject Allen's argument that the district court erred when it dismissed her action without first permitting her to remove an ongoing proceeding in the Queens County Family Court relating to the custody of her child. Documents attached to Allen's February 2011 notice of removal demonstrate that the ... director corporation - director corporation ALLEN v. MATTINGLY, 11-1613-cv (2nd Cir. 6-21-2012) No. 11-1613-cv. June 21, 2012. "We review dismissal of a cause of action under Fed. R. Civ. P. 12(b)(1) or 12(b)(6) de novo." Jaghory v. N.Y. State Dep't of Educ., 131 F.3d 326, 329 (2d Cir. 1997). Dismissal of a case for lack of subject matter jurisdiction under Rule 12(b)(1) is proper "when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). To survive a Rule 12(b)(6) motion to dismiss, the complaint must plead "enough facts to state a claim ... We reject Allen's argument that the district court erred when it dismissed her action without first permitting her to remove an ongoing proceeding in the Queens County Family Court relating to the custody of her child. Documents attached to Allen's February 2011 notice of removal demonstrate that the ... antitrust - antitrust EATONI ERGONOMICS v. RESEARCH IN MOTION CORP., 11-5328-cv (2nd Cir. 6-21-2012) No. 11-5328-cv. June 21, 2012. Plaintiff Eatoni Ergonomics, Inc. ("Eatoni") appeals from (1) the confirmation of a June 8, 2010 arbitration award for defendants Research in Motion Corp. and Research in Motion Ltd. (collectively, "RIM") on Eatoni's claims that RIM breached its obligations under an agreement settling litigation in the United States District Court for the Northern District of Texas relating to RIM's alleged infringement of Eatoni's patent for "reduced QWERTY" keyboard technology for cellular telephones; and (2) the ... patent - patent EATONI ERGONOMICS v. RESEARCH IN MOTION CORP., 11-5328-cv (2nd Cir. 6-21-2012) No. 11-5328-cv. June 21, 2012. Plaintiff Eatoni Ergonomics, Inc. ("Eatoni") appeals from (1) the confirmation of a June 8, 2010 arbitration award for defendants Research in Motion Corp. and Research in Motion Ltd. (collectively, "RIM") on Eatoni's claims that RIM breached its obligations under an agreement settling litigation in the United States District Court for the Northern District of Texas relating to RIM's alleged infringement of Eatoni's patent for "reduced QWERTY" keyboard technology for cellular telephones; and (2) the ... EEOC - EEOC ERCOLE v. LAHOOD, 11-1780-cv (2nd Cir. 6-21-2012) No. 11-1780-cv. June 21, 2012. Appellant Joseph R. Ercole, proceeding pro se, appeals from the district court's judgment granting the defendant's motion to dismiss the claims in Ercole's third amended complaint, which were brought under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., the Administrative Procedure Act, 5 U.S.C. § 500 et seq., the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. § 4301 et seq., the ... This Court reviews "de novo a district court's dismissal of a complaint pursuant to Rule 12(b)(6), construing the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff's favor." Chambers v. Time Warner, Inc., 282 F.3d 147,... EEOC - EEOC SNYDER v. NEW YORK STATE EDUCATION DEPARTMENT, 11-1101 (2nd Cir. 6-21-2012) No. 11-1101. June 21, 2012. This Court reviews a district court's denial of a Rule 59(a) motion for a new trial for abuse of discretion. See Munafo v. Metro. Transp. Auth., 381 F.3d 99, 105 (2d Cir. 2004). "A motion for a new trial ordinarily should not be granted unless the trial court is convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice." Lightfoot v. Union Carbide Corp., 110 F.3d 898, 911 (2d Cir. 1997) (internal quotation marks and brackets omitted). Upon review, ... I. Jury Instructions On appeal, Appellants argue that the district court gave several erroneous jury instructions. Under Fed. R. Civ. P. 51(d)(1), a party may assign error based on an erroneous jury instruction "if that party properly objected." If a party does not receive the... second circuit - second circuit JABBAR v. FISCHER, 11-3765 (2nd Cir. 6-21-2012) No. 11-3765 Decided June 21, 2012 On April 24, 2009, Jabbar, an inmate incarcerated at Woodbourne Correctional Facility in Woodbourne, New York ("Woodbourne"), was transported to and from a medical appointment at an outside facility. He was transported on an Ulster Correctional Facility ("Ulster") "hub bus" that did not have seatbelts for inmate passengers (although seatbelts were provided for corrections officers). During transport, Jabbar was shackled from his wrists to his ankles. The bus made a forceful turn and Jabbar, who had Page... I. Applicable Law The Eighth Amendment's prohibition against cruel and unusual punishment requires prison conditions to be "humane," though not necessarily "comfortable." Gaston v. Coughlin, 249 F.3d 156, 164 (2d Cir. 2001) (internal quotation marks omitted) (citing Farmer v. Brennan, 511 U.S. 825,... EEOC - EEOC DOE v. SUTLINGER REALTY CORP., 2011-11068 (2d Dept 6-20-2012) No. 2011-11068 Decided on June 20, 2012 In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Kramer, J.), dated September 22, 2011, as granted that branch of the defendant's motion which was to vacate the note of issue and, in effect, granted that branch of the defendant's motion which was to compel the plaintiff to comply with outstanding discovery to the extent of referring the matter to a special referee to hear and report as to ... DECISION ~amp~ ORDER The plaintiff commenced this action against the defendant to recover damages for personal injuries allegedly sustained as a result of the plaintiff's fall at premises owned by the defendant. Apparently, during discovery, the defendant inadvertently received... second circuit - second circuit WOZNIAK v. CITY OF NEW YORK, 109178/09 (6-15-2012) 109178/09 Decided on June 15, 2012 Plaintiff testified that he walked up a wooden staircase leading to a doorway which he believed to be the exit. (Id. at 35-36.) According to plaintiff, "It was dark, there were no signs." (Id.) Plaintiff testified that he stepped through "the threshold of the doorway, which caused [him] to lose [his] balance because there was approximately a five or six foot drop. . ." (Id. at 36.) When asked if the doorway was the same set of doors that he came through to start the training, plaintiff answered, "No. I ... "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires a denial of the motion, regardless... franchise - franchise LONG SLAND LIGHTING COMPANY v. CHESTNUT STATION, INC., 020515-09 (6-5-2012) No. 020515-09 June 5, 2012 B. The Parties' History The parties' history is set forth in detail in a prior decision of the Court dated July 15, 2010 ("Prior Decision") (Ex. B to Duffy Aff. in Supp.) which addressed a prior motion filed by Plaintiff ("Prior Motion"). In the Prior Decision, the Court 1) granted Plaintiff's motion for a default judgment against Defendant Chestnut Station, Inc. ("CSI") on the fourth cause of action in the Complaint in the sum of $118,677.33, plus costs and attorney's fees to be determined at an ... As noted in the Prior Decision, CSI is a New York corporation that became inactive on or about July 29, 2009 due to dissolution by proclamation of the New York Department of State. Catanese was and continues to be President of SCI. Catanese, in his capacity as President of CSI, made a... bankruptcy - bankruptcy CIMERRING v. MERRILL LYNCH MORTGAGE INVESTORS, 8727/2011 (6-13-2012) 8727/2011 Decided on June 13, 2012 FACTS AND PROCEDURAL HISTORY The Lee Hall Loan Plaintiff Avram Cimerring (Cimerring)[fn1] and non-party Ran Nizan (Nizan) were the principals of Lee Hall LLC (Lee Hall), a company that sought financing for the purchase of four apartment complexes in Virginia (the mortgaged property). Cimerring and Nizan Page 2 executed a personal guaranty (the Guaranty) on a Deed of Trust note (the Note) in order for Lee Hall to obtain a $17.4 million commercial mortgage loan (the Lee Hall Loan) from Wexford Bancorp (... UBS then sold the Lee Hall Loan, as part of a pool of commercial mortgages, to Merrill Lynch Mortgage Investors, Inc. (MLMI) pursuant to a Mortgage Loan Purchase Agreement (the MLPA) dated November 1, 1999. The purchase price for the pool of loans was allegedly based on the... director corporation - director corporation LONG SLAND LIGHTING COMPANY v. CHESTNUT STATION, INC., 020515-09 (6-5-2012) No. 020515-09 June 5, 2012 B. The Parties' History The parties' history is set forth in detail in a prior decision of the Court dated July 15, 2010 ("Prior Decision") (Ex. B to Duffy Aff. in Supp.) which addressed a prior motion filed by Plaintiff ("Prior Motion"). In the Prior Decision, the Court 1) granted Plaintiff's motion for a default judgment against Defendant Chestnut Station, Inc. ("CSI") on the fourth cause of action in the Complaint in the sum of $118,677.33, plus costs and attorney's fees to be determined at an ... As noted in the Prior Decision, CSI is a New York corporation that became inactive on or about July 29, 2009 due to dissolution by proclamation of the New York Department of State. Catanese was and continues to be President of SCI. Catanese, in his capacity as President of CSI, made a... director corporation - director corporation SEGWAY OF NEW YORK, INC. v. UDIT GROUP INC., 12639/11 (6-8-2012) No. 12639/11 June 8, 2012 The defendant corporate borrower and its two natural guarantors Mark Udit and Andrew Udit move pursuant to CPLR 5015 (a)(1),(4) and 317 to vacate a January 13, 2012 default $204,292.96 judgment, and pursuant to CPLR 3211 (a)(8) to dismiss the summons and notice of motion for summary judgment in lieu of complaint, to recall a December 19, 2011 court order and render a new order. The defense contends the defendants were not properly served with a copy of the plaintiff's summons and notice of motion for ... director corporation - director corporation WOZNIAK v. CITY OF NEW YORK, 109178/09 (6-15-2012) 109178/09 Decided on June 15, 2012 Plaintiff testified that he walked up a wooden staircase leading to a doorway which he believed to be the exit. (Id. at 35-36.) According to plaintiff, "It was dark, there were no signs." (Id.) Plaintiff testified that he stepped through "the threshold of the doorway, which caused [him] to lose [his] balance because there was approximately a five or six foot drop. . ." (Id. at 36.) When asked if the doorway was the same set of doors that he came through to start the training, plaintiff answered, "No. I ... "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires a denial of the motion, regardless... franchise - franchise MORAN ENTERPRISES, INC. v. HURST, 2011-02198 (2d Dept 6-20-2012) 2011-02198 Decided on June 20, 2012 Ordered that the order is modified, on the law, (1) by deleting the provision thereof denying those branches of the plaintiff's motion which were to dismiss the affirmative defenses numbered 1 and 4, and substituting therefor a provision granting those branches of the motion, and (2) by deleting the provision thereof denying those branches of the plaintiff's motion which were to dismiss the affirmative defenses numbered 2, 3, 5, 7, 10, 12, 13, 14, and 15, and substituting therefor a provision granting ... DECISION ~amp~ ORDER The plaintiff, Moran Enterprises, Inc. (hereinafter MEI), retained attorney Margaret Hurst to represent it in certain matters, including filing a Chapter 11 petition for bankruptcy on its behalf. A few months later, Hurst left active practice and transferred her... bankruptcy - bankruptcy MORAN ENTERPRISES, INC. v. HURST, 2011-02198 (2d Dept 6-20-2012) 2011-02198 Decided on June 20, 2012 Ordered that the order is modified, on the law, (1) by deleting the provision thereof denying those branches of the plaintiff's motion which were to dismiss the affirmative defenses numbered 1 and 4, and substituting therefor a provision granting those branches of the motion, and (2) by deleting the provision thereof denying those branches of the plaintiff's motion which were to dismiss the affirmative defenses numbered 2, 3, 5, 7, 10, 12, 13, 14, and 15, and substituting therefor a provision granting ... DECISION ~amp~ ORDER The plaintiff, Moran Enterprises, Inc. (hereinafter MEI), retained attorney Margaret Hurst to represent it in certain matters, including filing a Chapter 11 petition for bankruptcy on its behalf. A few months later, Hurst left active practice and transferred her... director corporation - director corporation IN THE MATTER OF STARSHA R., 2011-06705 (2d Dept 6-20-2012) 2011-06705, No. D-30579-09 Decided on June 20, 2012 In a juvenile delinquency proceeding pursuant to Family Court Act article 3, the appeal is from an order of disposition of the Family Court, Kings County (Freeman, J.), dated June 24, 2011, which, upon a fact-finding order of the same court dated April 21, 2011, made after a hearing, finding that the appellant had committed acts which, if committed by an adult, would have constituted the crimes of attempted assault in the third degree and obstructing governmental administration in the second degree, ... DECISION ~amp~ ORDER Contrary to the appellant's contentions, the Family Court properly determined that there was probable cause for police officers to take the appellant into custody pursuant to Mental Hygiene Law § 9.41 (see generally Bayne v Provost, 2005 WL 1871182, 7,... second circuit - second circuit G.B. v. CARRIÓN, 12-721-cv (2nd Cir. 6-22-2012) No. 12-721-cv. June 22, 2012. This appeal arises from an undisputed history of unconstitutional physical abuse of children sent to New York state's juvenile detention system, supervised by the New York State Office of Child and Family Services ("OCFS"). Defendant-appellee Gladys Carrión has been Commissioner of OCFS since 2007. In December 2007, the United States Department of Justice ("DOJ") began an investigation of OCFS's disciplinary practices to determine whether youth detained in specified OCFS facilities were adequately ... On December 30, 2009, plaintiffs-appellants ("Appellants") sued Carrión and the other defendants in the United States District Court for the Southern District of New York (Paul A. Crotty, Judge.). The suit, which sought class certification, also alleged excessive force in violation of Appellants' due process... second circuit - second circuit SCHULZ v. KELLNER, 11-4894-cv (2nd Cir. 6-22-2012) No. 11-4894-cv. June 22, 2012. Plaintiffs Robert L. Schulz and John Liggett, proceeding pro se, appeal the denial of their motion for reconsideration of the dismissal of their amended complaint for lack of standing and mootness.[fn1] We review the denial of Fed. R. Civ. P. 59(e) and 60(b) motions for abuse of discretion, see Johnson v. Univ. of Rochester Med. Ctr., 642 F.3d 121, 125 (2d Cir. 2011) (Rule 60(b)); Schwartz v. Liberty Mut. Ins. Co., 539 F.3d 135, 150 (2d Cir. 2008) (Rule 59(e)), and the dismissal of a complaint for lack ... "In order to have standing to bring suit, a plaintiff is constitutionally required to have suffered (1) a concrete, particularized, and actual or imminent injury-in-fact (2) that is traceable to defendant's conduct and (3) likely to be redressed by a favorable decision." Woods v. Empire Health Choice, ... director corporation - director corporation IN RE ISAIAH C., 8000 (1st Dept 6-21-2012) 8000 Decided on June 21, 2012 Order of disposition, Family Court, Bronx County (Allen G. Alpert, J.), entered on or about August 25, 2011, which adjudicated appellant a juvenile delinquent upon a fact-finding determination that he committed acts that, if committed by an adult, would constitute the crimes of obstructing governmental administration in the second degree and resisting arrest, and placed him with the Office of Children and Family Services for a period of 12 months, unanimously affirmed, without costs. The fact-finding determination was supported by legally sufficient evidence and was not against the weight of the evidence. When court officers attempted to subdue and arrest appellant's companion following a courtroom disruption, appellant aggressively confronted the officers, approaching them in a belligerent manner with raised... director corporation - director corporation RAVENNA v. ENTENMANN'S SALES COMPANY, INC., 8010N (1st Dept 6-21-2012) 8010N Decided on June 21, 2012 Order, Supreme Court, Bronx County (Laura Douglas, J.), entered March 6, 2012, which, to the extent appealed from, denied the defendants-appellants' motion for a change of venue to Rockland County, unanimously affirmed, without costs. Two of the drivers involved in a multi-vehicle accident that occurred in Rockland County commenced actions in Bronx County, properly designating venue on the basis of the residence of one of the parties in the Bronx (CPLR 503[a]). The motion to change venue of those actions to Rockland County was properly denied since the movants failed to show the nature and materiality of the anticipated testimony of the investigating police officer, or to provide adequate support for their assertion that she would be... patent - patent BGC PARTNERS, INC. v. REFCO SECURITIES, LLC, 6624 (1st Dept 6-21-2012) 6624, 6625 Decided on June 21, 2012 Pursuant to the parties' "Master Software License, Maintenance and Service Agreement," defendant had the right to the use of certain software and equipment and to maintenance and support services, in exchange for the payment to plaintiff of an annual licensing fee and a monthly maintenance fee (the Fixed Fees). Defendant also agreed to share with plaintiff portions of any commissions it received as a result of trading activity by its clients. The Fixed Fees were required to be paid through the six-year ... Approximately four years into the term of the agreement, defendant ceased doing business, and ceased paying the Fixed Fees. Plaintiff negotiated new commission contracts, which did not include payment of the Fixed Fees, with former clients of defendant. After plaintiff... banking law - banking law MATTER OF STANTON, 400-A-2006 (6-21-2012) 400-A-2006 Decided on June 21, 2012 In this SCPA 2103 proceeding the petitioning administrator, the decedent's daughter and sole distributee seeks, inter alia, an order pursuant to CPLR 6301 enjoining the respondent and Emigrant Savings Bank (Emigrant) from transferring or utilizing any funds which the decedent deposited in two separate Emigrant joint accounts with right of survivorship in his name and that of the respondent (see Banking Law § 675). The petitioner alleges that, shortly after the decedent's death, respondent closed the two... At the outset it is noted that although this court, in a May 6, 2011 order to show cause, granted a temporary restraining order with regard to the proceeds of the two Emigrant accounts, it declined to do so with regard to issues involving John Hancock Financial Annuities and, neither John Hancock nor... banking law - banking law MATTER OF NEILL, 2008-475/A (6-21-2012) 2008-475/A Decided on June 21, 2012 FACTS Robert W. Neill ("Decedent") died on January 22, 2008 survived by a son, Eric Neill, a daughter, Carol Sherwood, and six grandchildren. The Decedent's Last Will and Testament, dated June 27, 2000 was admitted to probate, and Letters Testamentary were issued to his two children on March 3, 2008. The Will left each of the Decedent's six grandchildren $25,000.00, and named his two children equal residuary beneficiaries. Due to the Decedent's Alzheimer's disease and advanced dementia that ultimately ... bankruptcy - bankruptcy 380 YORKTOWN FOOD CORP. v. 380 DOWNING DRIVE, LLC, 55188/11 (3-9-2012) 55188/11 Decided on March 9, 2012 Plaintiff, 380 Yorktown Food Corp. ("Plaintiff" or "Yorktown Food") moves, pursuant to CPLR 3212, for an order granting it summary judgment and a judgment declaring the rights, responsibilities and obligations of the parties with regard to a sublease entered into between Plaintiff and non-party The Great Atlantic ~amp~ Pacific Tea Company ("A ~amp~ P") concerning property located at 380 Downing Drive, Yorktown Heights, New York (the "Property") dated July 23, 1992 (the "Sublease"). Defendant 380 Downing... Based on the allegations of the Complaint, Plaintiff asserts that Defendant and A ~amp~ P entered into the Overlease for the Property on May 21, 1971 and on July 23, 1992, A ~amp~ P entered into the Sublease with Plaintiff (Affidavit of Joseph Friedman, sworn to September 2,... bankruptcy - bankruptcy GRIPPE v. SILVERITE CONSTRUCTION COMPANY, INC., 22354/10 (6-12-2012) 22354/10 June 12, 2012 RELIEF REQUESTED The third-party defendants, Airflex Industrial, Inc., and Airflex Corp., (hereinafter referred to as "Airflex"), move for an order pursuant to CPLR § 3025(b) permitting Airflex to amend its answer to include the defense of lack of capacity to sue, and for dismissal of plaintiff's complaint and the third-party action pursuant to CPLR § 3211(a)(3), CPLR § 3211(a)(5) and judicial estoppel. The defendant/third-party plaintiff, Silverite Construction Company, Inc., (hereinafter referred to ... APPLICABLE LAW A debtor is required to submit a schedule of assets and liabilities to the Bankruptcy Court, including "all pre-petition causes of action belonging to the debtor". (Meneses v. Long Island Railroad Co., 2009 US Dist. Lexis 20471). Such property includes "causes of action... director corporation - director corporation WHITE v. FEE, 57828/11 (6-7-2012) 57828/11 Decided on June 7, 2012 Defendants Frank J. Fee, III ("Frank"), Kevin Fee ("Kevin") and Michael Fee ("Michael") and Frank in his role as Trustee of the Marital Deduction Trust and Residuary Trust (the "Fee Defendants") move pursuant to CPLR 3211(a)(7) and CPLR 3016(b) to dismiss the Verified Complaint ("Complaint") or, alternatively, to dismiss based on a prior action pending pursuant to CPLR 3211(a)(4) (Motion Seq. No.2). Defendant The Reliable Automatic Sprinkler Co., Inc. ("Reliable") joins in the Fee Defendants' motion (... With regard to Defendants' egregious conduct, Plaintiffs pose the rhetorical question ? "How much more egregious does it get then manipulating a dividend policy by eliminating it under the guise of hiring' your mother, then eliminating dividends to her and entirely to all other non-voting shareholders?" director corporation - director corporation GRULLON v. LEVINE, 07-19484 (6-11-2012) No. 07-19484 June 11, 2012 This is an action premised upon the alleged medical malpractice and negligence of the defendants arising out of their care and treatment of the infant plaintiff, Yerazdy Alvarado. It is alleged that the defendants improperly interpreted a CT scan of the infant's brain, failed to detect a density or infarct in the middle cerebral artery of the brain, failed to suspect an infarct, and failed to administer other medications to dissolve the clot and prevent further stroke in the infant plaintiff. It is ... director corporation - director corporation KAHN v. RAN, 601288-11 (6-12-2012) No. 601288-11 June 12, 2012 This matter is before the court on the motion filed by Defendants Assaf Ran, Mark Alhadeff, Phillip Michaels,[fn1] Michael Jackson, Eran Goldshmid, Lyron Bentovim and Manhattan Page 2 Bridge Capital, Inc. ("Defendants") on January 31, 2012 and submitted on May 4, 2012, following oral argument before the Court. For the reasons set forth below, the Court determines that the Complaint does not allege with adequate particularity the futility of a demand on the Board of Directors, but the Court will permit ... The Complaint alleges that on August 9, 2010, MBC filed a Schedule 14A with the Securities and Exchange Commission ("SEC") disclosing Defendants' authorization and recommendation to grant 1,000,000 restricted shares of MBC common stock to Defendant Assaf Ran ("Ran"), MBC's President and Chief Executive Officer ("CEO"),... director corporation - director corporation PEOPLE v. MCFARLAND, 7581-99 (6-21-2012) 7581-99 Decided on June 21, 2012 The Defendant was adjudicated a Level 3 sex offender at a high risk to re-offend under the Sex Offender Registration Act ("SORA") in a 107 page Decision and Order by this Court on October 4, 2010. People v. McFarland, 29 Misc 3d 1206(A), 2010 WL 3892252, 2010 NY SlipOp 51705(U) (the "Original SORA Decision" or the "SlipOp"). The length of that Decision was due to this Court's detailed analysis of the manner in which risk assessments are made under SORA. In its Original SORA Decision, this Court found ... director corporation - director corporation 380 YORKTOWN FOOD CORP. v. 380 DOWNING DRIVE, LLC, 55188/11 (3-9-2012) 55188/11 Decided on March 9, 2012 Plaintiff, 380 Yorktown Food Corp. ("Plaintiff" or "Yorktown Food") moves, pursuant to CPLR 3212, for an order granting it summary judgment and a judgment declaring the rights, responsibilities and obligations of the parties with regard to a sublease entered into between Plaintiff and non-party The Great Atlantic ~amp~ Pacific Tea Company ("A ~amp~ P") concerning property located at 380 Downing Drive, Yorktown Heights, New York (the "Property") dated July 23, 1992 (the "Sublease"). Defendant 380 Downing... Based on the allegations of the Complaint, Plaintiff asserts that Defendant and A ~amp~ P entered into the Overlease for the Property on May 21, 1971 and on July 23, 1992, A ~amp~ P entered into the Sublease with Plaintiff (Affidavit of Joseph Friedman, sworn to September 2,... director corporation - director corporation STEPHENSON v. TERRON-CARRERA, 09-2465 (6-5-2012) No. 09-2465 June 5, 2012 On April 27, 2005, plaintiff and co-defendant Lillian Terron-Carrera ("Carrera"), purchased a single family house located at 129 Fox Run Lane in Aquebogue, New York (the "Property"). The Property was held by plaintiff and Carrera as joint tenants with the right of survivorship. Plaintiff and Carrera financed 100% of the $408,000 purchase price with loans from Fremont Investment ~amp~ Loan ("Fremont") in the amount of $326,400, secured by a first mortgage on the Property, and in the amount of $81,600, ... director corporation - director corporation DEFRANCESCO v. METRO-NORTH RAILROAD, 113453/2009 (6-18-2012) 113453/2009 June 18, 2012 Plaintiff became employed by defendant Metro-North Railroad ("Metro-North") as an assistant conductor on June 28, 1999 and worked In that capacity until she was terminated from employment on November 16, 2009. Until 2008, Metro-North had a manual ticket punching system. In mid-2008, Metro-North implemented a pilot program using an electronic "Ticket Issuing Machine" ("TIM"). A TIM is 6 to 8 inches long and is worn in a holster directly on the body. It transmits a signal to Metro-North's accounting ... Plaintiff was provided with a TIM in August 2008 but she refused to use it because she was planning on getting pregnant and was concerned about the device's safety. By the end of 2008, however, the pilot program became an established, formalized system-wide policy and in its On-Board Revenue Notice... director corporation - director corporation MATTER OF NEILL, 2008-475/A (6-21-2012) 2008-475/A Decided on June 21, 2012 FACTS Robert W. Neill ("Decedent") died on January 22, 2008 survived by a son, Eric Neill, a daughter, Carol Sherwood, and six grandchildren. The Decedent's Last Will and Testament, dated June 27, 2000 was admitted to probate, and Letters Testamentary were issued to his two children on March 3, 2008. The Will left each of the Decedent's six grandchildren $25,000.00, and named his two children equal residuary beneficiaries. Due to the Decedent's Alzheimer's disease and advanced dementia that ultimately ... SEC - SEC KAHN v. RAN, 601288-11 (6-12-2012) No. 601288-11 June 12, 2012 This matter is before the court on the motion filed by Defendants Assaf Ran, Mark Alhadeff, Phillip Michaels,[fn1] Michael Jackson, Eran Goldshmid, Lyron Bentovim and Manhattan Page 2 Bridge Capital, Inc. ("Defendants") on January 31, 2012 and submitted on May 4, 2012, following oral argument before the Court. For the reasons set forth below, the Court determines that the Complaint does not allege with adequate particularity the futility of a demand on the Board of Directors, but the Court will permit ... The Complaint alleges that on August 9, 2010, MBC filed a Schedule 14A with the Securities and Exchange Commission ("SEC") disclosing Defendants' authorization and recommendation to grant 1,000,000 restricted shares of MBC common stock to Defendant Assaf Ran ("Ran"), MBC's President and Chief Executive Officer ("CEO"),... EEOC - EEOC DEFRANCESCO v. METRO-NORTH RAILROAD, 113453/2009 (6-18-2012) 113453/2009 June 18, 2012 Plaintiff became employed by defendant Metro-North Railroad ("Metro-North") as an assistant conductor on June 28, 1999 and worked In that capacity until she was terminated from employment on November 16, 2009. Until 2008, Metro-North had a manual ticket punching system. In mid-2008, Metro-North implemented a pilot program using an electronic "Ticket Issuing Machine" ("TIM"). A TIM is 6 to 8 inches long and is worn in a holster directly on the body. It transmits a signal to Metro-North's accounting ... Plaintiff was provided with a TIM in August 2008 but she refused to use it because she was planning on getting pregnant and was concerned about the device's safety. By the end of 2008, however, the pilot program became an established, formalized system-wide policy and in its On-Board Revenue Notice... director corporation - director corporation TSC INDUSTRIES, INC. v. NORTHWAY, INC., 426 U.S. 438 (U.S. 6-14-1976) No. 74-1471 Argued March 3, 1976, Decided June 14, 1976 OCTOBER TERM, 1975 Rule 14a-9, promulgated under § 14 (a) of the Securities Exchange Act of 1934, provides that no proxy solicitation shall be made "which . . . is false or misleading with respect to any material fact, or which omits to state any material fact necessary in order to make the statements therein not false or misleading." The dispute in this case centers on the acquisition of petitioner TSC Industries (TSC) by petitioner National Industries (National). National purchased 34% of TSC's voting securities from ... SEC - SEC TSC INDUSTRIES, INC. v. NORTHWAY, INC., 426 U.S. 438 (U.S. 6-14-1976) No. 74-1471 Argued March 3, 1976, Decided June 14, 1976 OCTOBER TERM, 1975 Rule 14a-9, promulgated under § 14 (a) of the Securities Exchange Act of 1934, provides that no proxy solicitation shall be made "which . . . is false or misleading with respect to any material fact, or which omits to state any material fact necessary in order to make the statements therein not false or misleading." The dispute in this case centers on the acquisition of petitioner TSC Industries (TSC) by petitioner National Industries (National). National purchased 34% of TSC's voting securities from ... franchise - franchise ARIZONA v. U.S., 11-182 (U.S. 6-25-2012) No. 11-182 Argued April 25, 2012, Decided June 25, 2012 OCTOBER TERM, 2011 In any event, it is hard to see how state and local officers could proceed in conformity with the Federal Government's enforcement priorities without making an inquiry into a suspected alien's immigration status. For example, one of the Federal Government's highest priorities is the apprehension and removal of aliens who have failed to comply with a final order of removal. See App. 108. How can an officer identify those persons without first inquiring about their status? The United States' attack on § 2(B) is quite remarkable. The United States suggests that a state law may be preempted, not because it conflicts with a federal statute or regulation, but because it is inconsistent with a federal agency's current enforcement priorities. Those priorities, however, are not ... EEOC - EEOC ARIZONA v. U.S., 11-182 (U.S. 6-25-2012) No. 11-182 Argued April 25, 2012, Decided June 25, 2012 OCTOBER TERM, 2011 In any event, it is hard to see how state and local officers could proceed in conformity with the Federal Government's enforcement priorities without making an inquiry into a suspected alien's immigration status. For example, one of the Federal Government's highest priorities is the apprehension and removal of aliens who have failed to comply with a final order of removal. See App. 108. How can an officer identify those persons without first inquiring about their status? The United States' attack on § 2(B) is quite remarkable. The United States suggests that a state law may be preempted, not because it conflicts with a federal statute or regulation, but because it is inconsistent with a federal agency's current enforcement priorities. Those priorities, however, are not ... second circuit - second circuit MAHON v. TICOR TITLE INSURANCE COMPANY, 10-3005-cv (2nd Cir. 6-25-2012) No. 10-3005-cv Decided: June 25, 2012 Appeal from a partial judgment of the United States District Court for the District of Connecticut (Alvin W. Thompson, Judge) dismissing from the case Defendants-Appellees Ticor Title Insurance Company and Ticor Title Insurance Company of Florida on the basis that Plaintiff-Appellant Deborah Mahon lacks Article III standing to sue them because she does not allege that they injured her. Mahon argues that the district court erred because Article III requires only that she have suffered an injury at the ... II. Procedural History On April 28, 2009, Mahon sued Chicago Title and the Ticor entities for the overcharge on behalf of herself and similarly situated individuals. She alleges a class comprised of those who paid for title insurance from Chicago Title or the Ticor entities... second circuit - second circuit STATE v. SHINNECOCK INDIAN NATION, 08-1194-cv (2nd Cir. 6-25-2012) Nos. 08-1194-cv(L), 08-1195-cv(CON) Decided: June 25, 2012 The Shinnecock Indian Nation and its tribal officials (collectively, the "Shinnecock" or the "Tribe") appeal from a Page 3 judgment of the United States District Court for the Eastern District of New York (Joseph F. Bianco, Judge). After a bench trial, the district court granted a permanent injunction prohibiting the Tribe from developing a casino on a plot of land known as Westwoods without complying with the laws of New York State and the Town of Southampton. The Shinnecock object to a number of the ... second circuit - second circuit JOINER v. CHARTWELLS, 11-5463-cv (2nd Cir. 6-25-2012) No. 11-5463-cv. June 25, 2012. Plaintiff-appellant David Joiner, pro se, appeals from the district court's May 7, 2007, order granting in part defendants-appellees' ("Chartwells") motion for summary judgment, the district court's July 16, 2009, judgment for the defendants, and the district court's October 16, 2009, order denying Joiner's motion for a new trial. More specifically, Joiner argues that (1) the district court erred by granting in part Chartwells's motion for summary judgment; (2) the judgment, following a jury verdict, ... second circuit - second circuit DAVIDSON v. CITY OF BRIDGEPORT, 11-1740-cv (2nd Cir. 6-25-2012) No. 11-1740-cv. June 25, 2012. Former police sergeant Bobby Davidson appeals from the award of summary judgment: (1) to the City of Bridgeport, the city's police department, and Police Chief Bryan T. Norwood (collectively, the "City") on federal law claims relating to the City's decision to retire involuntarily Davidson from his employment; and (2) to psychiatrist Mark Rubinstein on a state law claim relating to Rubinstein's disclosure to the City of Davidson's psychological independent medical examination ("IME"). We review an award... 1. 42 U.S.C. § 1983 Claims Against the City a. Invasion of Privacy Davidson challenges the district court's determination that there were no genuine disputed issues of fact regarding his substantive due process and Fourth Amendment claims that the City invaded his privacy by subjecting... franchise - franchise STATE v. SHINNECOCK INDIAN NATION, 08-1194-cv (2nd Cir. 6-25-2012) Nos. 08-1194-cv(L), 08-1195-cv(CON) Decided: June 25, 2012 The Shinnecock Indian Nation and its tribal officials (collectively, the "Shinnecock" or the "Tribe") appeal from a Page 3 judgment of the United States District Court for the Eastern District of New York (Joseph F. Bianco, Judge). After a bench trial, the district court granted a permanent injunction prohibiting the Tribe from developing a casino on a plot of land known as Westwoods without complying with the laws of New York State and the Town of Southampton. The Shinnecock object to a number of the ... bankruptcy - bankruptcy STATE v. SHINNECOCK INDIAN NATION, 08-1194-cv (2nd Cir. 6-25-2012) Nos. 08-1194-cv(L), 08-1195-cv(CON) Decided: June 25, 2012 The Shinnecock Indian Nation and its tribal officials (collectively, the "Shinnecock" or the "Tribe") appeal from a Page 3 judgment of the United States District Court for the Eastern District of New York (Joseph F. Bianco, Judge). After a bench trial, the district court granted a permanent injunction prohibiting the Tribe from developing a casino on a plot of land known as Westwoods without complying with the laws of New York State and the Town of Southampton. The Shinnecock object to a number of the ... director corporation - director corporation DAVIDSON v. CITY OF BRIDGEPORT, 11-1740-cv (2nd Cir. 6-25-2012) No. 11-1740-cv. June 25, 2012. Former police sergeant Bobby Davidson appeals from the award of summary judgment: (1) to the City of Bridgeport, the city's police department, and Police Chief Bryan T. Norwood (collectively, the "City") on federal law claims relating to the City's decision to retire involuntarily Davidson from his employment; and (2) to psychiatrist Mark Rubinstein on a state law claim relating to Rubinstein's disclosure to the City of Davidson's psychological independent medical examination ("IME"). We review an award... 1. 42 U.S.C. § 1983 Claims Against the City a. Invasion of Privacy Davidson challenges the district court's determination that there were no genuine disputed issues of fact regarding his substantive due process and Fourth Amendment claims that the City invaded his privacy by subjecting... antitrust - antitrust MAHON v. TICOR TITLE INSURANCE COMPANY, 10-3005-cv (2nd Cir. 6-25-2012) No. 10-3005-cv Decided: June 25, 2012 Appeal from a partial judgment of the United States District Court for the District of Connecticut (Alvin W. Thompson, Judge) dismissing from the case Defendants-Appellees Ticor Title Insurance Company and Ticor Title Insurance Company of Florida on the basis that Plaintiff-Appellant Deborah Mahon lacks Article III standing to sue them because she does not allege that they injured her. Mahon argues that the district court erred because Article III requires only that she have suffered an injury at the ... II. Procedural History On April 28, 2009, Mahon sued Chicago Title and the Ticor entities for the overcharge on behalf of herself and similarly situated individuals. She alleges a class comprised of those who paid for title insurance from Chicago Title or the Ticor entities... patent - patent STATE v. SHINNECOCK INDIAN NATION, 08-1194-cv (2nd Cir. 6-25-2012) Nos. 08-1194-cv(L), 08-1195-cv(CON) Decided: June 25, 2012 The Shinnecock Indian Nation and its tribal officials (collectively, the "Shinnecock" or the "Tribe") appeal from a Page 3 judgment of the United States District Court for the Eastern District of New York (Joseph F. Bianco, Judge). After a bench trial, the district court granted a permanent injunction prohibiting the Tribe from developing a casino on a plot of land known as Westwoods without complying with the laws of New York State and the Town of Southampton. The Shinnecock object to a number of the ... EEOC - EEOC JOINER v. CHARTWELLS, 11-5463-cv (2nd Cir. 6-25-2012) No. 11-5463-cv. June 25, 2012. Plaintiff-appellant David Joiner, pro se, appeals from the district court's May 7, 2007, order granting in part defendants-appellees' ("Chartwells") motion for summary judgment, the district court's July 16, 2009, judgment for the defendants, and the district court's October 16, 2009, order denying Joiner's motion for a new trial. More specifically, Joiner argues that (1) the district court erred by granting in part Chartwells's motion for summary judgment; (2) the judgment, following a jury verdict, ... second circuit - second circuit RANSMEIER v. MARIANI, 11-175-cv (2nd Cir. 6-26-2012) Nos. 11-175-cv(L);, 11-640-cv(Con). June 26, 2012. A thorough examination of the record demonstrates that Mariani has only one true argument on appeal ? that she was entitled to intervene as of right under Fed. R. Civ. P. 24(a)(2). Rule 24(a)(2), of course, was the very basis for Mariani's first motion to intervene. The district court denied that motion, and we affirmed that decision on appeal. See N.S. Windows, LLC v. Minoru Yamasaki Associates, Inc., 351 F. App'x 461, 467 (2d Cir. 2009) (summary order). Mariani's renewed attempt to intervene is ... The first time Mariani tried to intervene, her chief argument was that a so-called "individual loss of consortium" claim constituted a sufficient "interest" to give her the absolute right, under Rule 24(a)(2), to intervene in the proceedings below.[fn4] The district court definitively... second circuit - second circuit BUDAY v. NEW YORK YANKEES PARTNERSHIP, 11-4803-cv (2nd Cir. 6-26-2012) No. 11-4803-cv. June 26, 2012. Plaintiff-appellant Tanit Buday appeals from the district court's judgment granting the motion of the New York Yankees Partnership to dismiss Buday's complaint, which alleged that the Yankees failed to pay her uncle, Kenneth Timur, for a logo that he designed for the team in the 1930s and revised in 1947. The district court concluded that because this suit does not involve a federal question, the court lacked subject matter jurisdiction, and that, even if jurisdiction existed, Buday's complaint failed ... "We review dismissal of a cause of action under Fed. R. Civ. P. 12(b)(1) or 12(b)(6) de novo." Jaghory v. N.Y. State Dep't of Educ., 131 F.3d 326, 329 (2d Cir. 1997). Dismissal of a case for lack of subject matter jurisdiction is appropriate "when the district court lacks the... second circuit - second circuit FOREST PARK PICTURES v. UNIVERSAL TELEVISION NETWORK, INC., 11-2011-cv (2nd Cir. 6-26-2012) No. 11-2011-cv Decided: June 26, 2012 Plaintiffs-Appellants Forest Park Pictures, Tove Christensen, and Hayden Christensen appeal from an order of the United States District Court for the Southern District of New York (Colleen McMahon, Judge) granting Defendant-Appellee Universal Television Network's motion to dismiss on the grounds that this breach of contract action is preempted by the Copyright Act. We reach a different conclusion. Plaintiffs-Appellants adequately alleged a contract that includes an implied promise to pay. Because this ... This dispute over the concept for a television show presents the question of the extent to which the Copyright Act, 17 U.S.C. § 101 et seq., preempts contract claims involving copyrightable property. Plaintiffs-Appellants Forest Park Pictures, Hayden... second circuit - second circuit KELLY v. TOWN OF CHELMSFORD, 11-3418-cv (2nd Cir. 6-26-2012) No. 11-3418-cv. June 26, 2012. Plaintiff Danny M. Kelly, pro se, appeals from the district court's judgment dismissing his action sua sponte pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim on which relief may be granted. We review a § 1915(e) dismissal de novo. See Giano v. Goord, 250 F.3d 146, 149-50 (2d Cir. 2001). We assume the parties' familiarity with the facts and record of the underlying proceedings, which we reference only as necessary to explain our decision to affirm. The district court properly dismissed Kelly's action. Kelly has three times previously attempted to litigate this claim. See Kelly v. Town of Chelmsford, 23 F. App'x 18 (1st Cir. 2001) (unpublished); Kelly v. Town of Chelmsford, 874 N.E.2d 1143 (Mass. App. Ct. 2007) (unpublished); Kelly v. Day, 585 F. Supp. 2d 211 (D. Mass.... director corporation - director corporation U.S. v. SEKHAR, 11-4298 (2nd Cir. 6-26-2012) No. 11-4298 Decided: June 26, 2012 Giridhar Sekhar appeals his conviction, following a jury trial in the Northern District of New York (Thomas J. McAvoy, Judge), for [i] attempted extortion of the General Counsel of the New York State Comptroller's Office in violation of the Hobbs Act, 18 U.S.C. § 1951(a), and [ii] interstate transmission of extortionate threats in violation of 18 U.S.C. § 875(d). Sekhar argues that his conduct did not come within the statutory definition of extortion because he did not "attempt to obtain property" from ... On the advice of law enforcement, the General Counsel asked the e-mailer for more time. On Monday, November 23, the e-mailer assured the General Counsel that he would "never hear about this again" if he could "get this fixed by Wednesday." On Tuesday, December 1, the e-mailer asked the General Counsel... patent - patent BUDAY v. NEW YORK YANKEES PARTNERSHIP, 11-4803-cv (2nd Cir. 6-26-2012) No. 11-4803-cv. June 26, 2012. Plaintiff-appellant Tanit Buday appeals from the district court's judgment granting the motion of the New York Yankees Partnership to dismiss Buday's complaint, which alleged that the Yankees failed to pay her uncle, Kenneth Timur, for a logo that he designed for the team in the 1930s and revised in 1947. The district court concluded that because this suit does not involve a federal question, the court lacked subject matter jurisdiction, and that, even if jurisdiction existed, Buday's complaint failed ... "We review dismissal of a cause of action under Fed. R. Civ. P. 12(b)(1) or 12(b)(6) de novo." Jaghory v. N.Y. State Dep't of Educ., 131 F.3d 326, 329 (2d Cir. 1997). Dismissal of a case for lack of subject matter jurisdiction is appropriate "when the district court lacks the... patent - patent FOREST PARK PICTURES v. UNIVERSAL TELEVISION NETWORK, INC., 11-2011-cv (2nd Cir. 6-26-2012) No. 11-2011-cv Decided: June 26, 2012 Plaintiffs-Appellants Forest Park Pictures, Tove Christensen, and Hayden Christensen appeal from an order of the United States District Court for the Southern District of New York (Colleen McMahon, Judge) granting Defendant-Appellee Universal Television Network's motion to dismiss on the grounds that this breach of contract action is preempted by the Copyright Act. We reach a different conclusion. Plaintiffs-Appellants adequately alleged a contract that includes an implied promise to pay. Because this ... This dispute over the concept for a television show presents the question of the extent to which the Copyright Act, 17 U.S.C. § 101 et seq., preempts contract claims involving copyrightable property. Plaintiffs-Appellants Forest Park Pictures, Hayden... banking law - banking law IN THE MATTER OF THE ESTATE OF NEILL, 2008-475/A (6-21-2012) No. 2008-475/A June 21, 2012 Decision ~amp~ Order FACTS Robert W. Neill ("Decedent") died on January 22, 2008 survived by a son, Eric Neill, a daughter, Carol Sherwood, and six grandchildren. The Decedent's Last Will and Testament, dated June 27, 2000 was admitted to probate, and Letters Testamentary were issued to his two children on March 3, 2008. The Will left each of the Decedent's six grandchildren $25,000.00, and named his two children equal residuary beneficiaries. Due to the Decedent's Alzheimer's disease and advanced ... director corporation - director corporation NEW YORK CITY EDUCATIONAL CONSTRUCTION FUND v. VERIZON NY INC., 650193/09 (6-11-2012) 650193/09 Decided on June 11, 2012 This action arises out of plaintiff's sale, almost 40 years ago, to New York Telephone Company ("Telco"), the predecessor of defendant Verizon New York Inc. f/k/a New York Telephone Co. ("Verizon"), of a plot of land designated as Block 113, Lot 150 on the Tax Map of New York County, together with certain specified development rights. Plaintiff ("ECF" or the "Fund") is a New York public benefit corporation that was created in 1966 "to facilitate the timely construction of [elementary and secondary] ... Verizon further contends that ECF failed to conduct any independent diligence to confirm the amount of zoning floor area contained in the Verizon Building prior to the 2007 transactions culminating in the transfer of title to Verizon under the 1972 Contract. ECF's... director corporation - director corporation IN THE MATTER OF THE ESTATE OF NEILL, 2008-475/A (6-21-2012) No. 2008-475/A June 21, 2012 Decision ~amp~ Order FACTS Robert W. Neill ("Decedent") died on January 22, 2008 survived by a son, Eric Neill, a daughter, Carol Sherwood, and six grandchildren. The Decedent's Last Will and Testament, dated June 27, 2000 was admitted to probate, and Letters Testamentary were issued to his two children on March 3, 2008. The Will left each of the Decedent's six grandchildren $25,000.00, and named his two children equal residuary beneficiaries. Due to the Decedent's Alzheimer's disease and advanced ... director corporation - director corporation SBRIGATO v. JC PENNY CORP., INC., 20700/09 (6-21-2012) 20700/09 Decided on June 21, 2012 Plaintiff has alleged causes of action for defamation, false imprisonment and intentional infliction of emotional distress based on defendant's employee's detaining her on April 14, 2009 for taking a watch from defendant's store. On that afternoon, plaintiff entered defendant's store located at the Staten Island Mall with her seven-year-old son and five-year-old daughter. It is undisputed that defendant's loss prevention officers, while monitoring the store's surveillance cameras, observed plaintiff ... director corporation - director corporation IN THE MATTER OF SOCIAL SERVICE EMPLOYEES UNION v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, 113157/11 (6-15-2012) 113157/11 June 15, 2012 The scope of judicial review of an arbitration proceeding is extremely limited (Matter of Campbell v New York City Tr. Auth., 32 AD3d 350 [1 st Dept 2006]), and the court must give deference to the arbitrator's decision (Matter of New York City Tr. Auth. v Transp. Workers' Union of Am., Local 100, AFL-CIO, 6 NY3d 332 [2005]). In reviewing an award, the court is bound by the arbitrator's factual findings and interpretations of the agreement at issue (Matter of Brown ~amp~ Williamson Tobacco Corp. v ... I. IS THE AWARD IRRATIONAL? The parties stipulated to the issue for the arbitrator's determination as follows: "Was the suspension of [Cappelan] from her position . . . and her subsequent discharge . . . a wrongful Page 5 disciplinary action?" II. DOES THE AWARD VIOLATE PUBLIC POLICY? motion picture - motion picture SBRIGATO v. JC PENNY CORP., INC., 20700/09 (6-21-2012) 20700/09 Decided on June 21, 2012 Plaintiff has alleged causes of action for defamation, false imprisonment and intentional infliction of emotional distress based on defendant's employee's detaining her on April 14, 2009 for taking a watch from defendant's store. On that afternoon, plaintiff entered defendant's store located at the Staten Island Mall with her seven-year-old son and five-year-old daughter. It is undisputed that defendant's loss prevention officers, while monitoring the store's surveillance cameras, observed plaintiff ... banking law - banking law ASTORIA FEDERAL SAVINGS AND LOAN ASSN. v. RIGANO, 16575 (3-23-2012) 16575(T)-11 Decided on March 23, 2012 In this residential foreclosure action, Defendant homeowners Lawrence A. Rigano, Jr. and Liane F. Rigano brought a third-party action on December 19, 2011, against the mortgage brokers, Asset Center, Inc. and Francine Silberman Disesa, asserting that such Third Party Defendants engaged in predatory lending practices in violation of the Home Ownership and Equity Protection Act (see 15 USC §§ 1639, et seq.), the Truth in Lending Act (see 15 USC §§ 1601, et seq.), the Deceptive Practices Act (see General ... director corporation - director corporation HCI DISTRIB., INC. v. NEW YORK STATE POLICE, 138276 (6-18-2012) 138276 Decided on June 18, 2012 Fredericks Peebles ~amp~ Morgan, LLP (Brandt Benjamin Fenner, Esq., and Joseph Messineo, Esq., of counsel), attorneys for Petitioner; The Honorable Eric T. Schneiderman, Attorney General (Aaron M. Baldwin, Esq., and Kelly L. Munkwitz, Assistant Attorneys General), for Respondents New York State Police, Troop B Commander, Ray Brook, NY and New York State Police Evidence Custodian, Ray Brook, NY; Michael C. Crowe, Esq., St. Lawrence County Attorney, for Respondents St. Lawrence County District Attorney ... Petitioner, HCI Distributors, Inc., ("HCI") describes itself as "an economic and political subdivision of the Winnebago Tribe of Nebraska, a federally recognized Indian tribe." Respondents New York State Police, Troop B. Commander, Ray Brook NY, and New York State Police Evidence... director corporation - director corporation IN THE MATTER OF U.S. CAPITAL INSURANCE CO., 403176/97 (6-22-2012) 403176/97 Decided on June 22, 2012 This court entered an order ("Liquidation Order") on November 20, 1997, pursuant to which U.S. Capital Insurance Company ("U.S. Capital") was adjudged to be insolvent and placed into liquidation. The Liquidation Order appointed the then-Superintendent of Insurance and his successors in office as Liquidator of U.S. Capital. Benjamin M. Lawsky, the Superintendent of Financial Services of the State of New York has now succeeded the Superintendent of Insurance as Liquidator of U.S. Capital. He has appointed... The Liquidator has been discharging his responsibilities since November 20, 1997. On March 8, 2012, the Liquidator submitted his initial report on the status of the Liquidation Proceeding for approval, providing a history of U.S. Capital, a summary of the Liquidator's activities... director corporation - director corporation SWEZEY v. LYNCH, 88 (N.Y. 6-D-2012) No. 88 Decided on June 26, 2012 Almost immediately after President Marcos departed from his country, the Republic of the Philippines organized the Presidential Commission on Good Government (PCGG) for the purpose of identifying, locating and retrieving national assets stolen by Marcos and his administration. The PCGG relied on a 1955 Philippine law, which declared that any property derived from misfeasance in public office was deemed forfeited to the Republic when the misappropriation occurred[fn1]. In addition to the efforts ... Enforcing the judgment proved to be a difficult task, however, because the Pimentel class was seeking to obtain monies and assets also sought by the Republic and PCGG[fn2]. One such dispute involved the assets of Arelma, S.A., a Panamanian corporation. Marcos had transferred $2 million to the company for deposit in a... director corporation - director corporation IN RE GOODACRE v. KELLY, 6962 (1st Dept 6-26-2012) 6962 Decided on June 26, 2012 It was the sole province of the Medical Board and the Board of Trustees, not the court, to resolve conflicts in the medical evidence (Borenstein, 88 NY2d at 761; Higgins v Kelly, 84 AD3d 520, 521 [2011], lv denied 18 NY3d 806 [2012]). Here, after making 11 reports over 6 years, having reviewed all of the medical reports and, in its most recent decision, recognizing the conflicting evidence, the Medical Board determined that although petitioner had hypertensive heart disease, he did not have a stress ... The Medical Board instead found petitioner disabled due to myocardial bridging, a congenital condition where a muscle band of the heart lies over the left anterior descending coronary artery. The statutory presumption of General Municipal Law § 207-k (Heart Bill) was overcome by this credible evidence of... director corporation - director corporation OXBOW CALCINING USA INC. v. AMERICAN INDUSTRIAL PARTNERS, 6031 (1st Dept 6-26-2012) 6031, 6032 Decided on June 26, 2012 Order, Supreme Court, New York County (Eileen Bransten, J.), entered February 3, 2011, which denied defendants' motion to the extent that it sought to compel arbitration and dismiss the fraud and fraudulent concealment causes of action or, in the alternative, to stay the action pending a simultaneously commenced Texas arbitration, and which granted the motion to dismiss with respect to the breach of fiduciary duty causes of action, unanimously modified, on the law, to the extent of reinstating ... The calcining process emits large amounts of waste heat, which can be converted to steam. Adjacent to the calcining plant is a steam plant that Dynergy Power Corp. (Dynergy) owned and operated until sometime in 2000. Pursuant to an agreement between GLC and Dynergy, waste... director corporation - director corporation IN RE DARRYL C., 6253 (1st Dept 6-26-2012) 6253 Decided on June 26, 2012 "Q So let's go back, officer, again. At some point you asked him what did he put in his pocket? "Q And he responded that he put a wallet in a pocket? "Q It's your testimony that this was friendly conversation. At this time you were talking to him and it was a friendly conversation, you were inquiring, correct? "Q Yet you chose to pat him down for your safety? bankruptcy - bankruptcy NATIONAL FEDERATION OF INDEPENDENT BUSINESS v. SEBELIUS, 11-393 (U.S. 6-28-2012) Nos. 11-393, 11-398 and, 11-400 Argued March 26, 27, 28, 2012, Decided June 28, 2012[fn*] OCTOBER TERM, 2011 Ultimately, the Court upholds the individual mandate as a proper exercise of Congress' power to tax and spend "for the . . . general Welfare of the United States." Art. I, § 8, cl. 1; ante, at 43-44. I concur in that determination, which makes THE CHIEF JUSTICE's Commerce Clause essay all the more puzzling. Why should THE CHIEF JUSTICE strive so mightily to hem in Congress' capacity to meet the new problems arising constantly in our ever-developing modern economy? Consider also that Congress could have repealed Medicaid. See supra, at 38-39 (citing 42 U. S. C. § 1304); Brief for Petitioners in No. 11-400, p. 41. Thereafter, Congress could have enacted Medicaid II, a new program combining the... director corporation - director corporation NATIONAL FEDERATION OF INDEPENDENT BUSINESS v. SEBELIUS, 11-393 (U.S. 6-28-2012) Nos. 11-393, 11-398 and, 11-400 Argued March 26, 27, 28, 2012, Decided June 28, 2012[fn*] OCTOBER TERM, 2011 Ultimately, the Court upholds the individual mandate as a proper exercise of Congress' power to tax and spend "for the . . . general Welfare of the United States." Art. I, § 8, cl. 1; ante, at 43-44. I concur in that determination, which makes THE CHIEF JUSTICE's Commerce Clause essay all the more puzzling. Why should THE CHIEF JUSTICE strive so mightily to hem in Congress' capacity to meet the new problems arising constantly in our ever-developing modern economy? Consider also that Congress could have repealed Medicaid. See supra, at 38-39 (citing 42 U. S. C. § 1304); Brief for Petitioners in No. 11-400, p. 41. Thereafter, Congress could have enacted Medicaid II, a new program combining the... EEOC - EEOC NATIONAL FEDERATION OF INDEPENDENT BUSINESS v. SEBELIUS, 11-393 (U.S. 6-28-2012) Nos. 11-393, 11-398 and, 11-400 Argued March 26, 27, 28, 2012, Decided June 28, 2012[fn*] OCTOBER TERM, 2011 Ultimately, the Court upholds the individual mandate as a proper exercise of Congress' power to tax and spend "for the . . . general Welfare of the United States." Art. I, § 8, cl. 1; ante, at 43-44. I concur in that determination, which makes THE CHIEF JUSTICE's Commerce Clause essay all the more puzzling. Why should THE CHIEF JUSTICE strive so mightily to hem in Congress' capacity to meet the new problems arising constantly in our ever-developing modern economy? Consider also that Congress could have repealed Medicaid. See supra, at 38-39 (citing 42 U. S. C. § 1304); Brief for Petitioners in No. 11-400, p. 41. Thereafter, Congress could have enacted Medicaid II, a new program combining the... director corporation - director corporation BRIDGE STREET HOMEOWNERS ASSOCIATION v. BRICK CONDOMINIUM DEVELOPERS, 26507/06 (1-23-2007) 26507/06 January 23, 2007 Upon the foregoing papers in this action by Bridge Street Homeowners Association (BSHA) and 37 individual residential unit owners of the Bridge No. 50 Condominium (Bridge Street Condominium) (collectively, plaintiffs) alleging 11 causes of action, 223 Water Street, LLC and Joshua Guttman a/k/a Joshua Gutman (Guttman) cross-move for an order: (1) pursuant to CPLR 3211 (a) (1), (3), and (7), and General Business Law § 352-e (1) (b), dismissing plaintiffs' complaint as against them, and (2) correcting ... -FACTS- In September 2003, 223 Water Street, LLC, the owner of a building located at 50 Bridge Street, in Brooklyn, New York, entered into a contract with Brick, pursuant to which Brick purchased the fourth, fifth, sixth, and penthouse floors of the building for... director corporation - director corporation ESTATE OF SHEFNER v. BÉRAUDIERE, 112525/11 (5-31-2012) No. 112525/11 May 31, 2012 Plaintiffs move, pursuant to CPLR 6211, to confirm an ex-parte order of attachment dated November 14, 2001 (the Attachment Order). Defendants move, pursuant to CPLR 327, to dismiss the complaint. Yves Bouvier (Bouvier) moves, pursuant to CPLR 1012 (a), or alternatively, CPLR 1013, for leave to intervene as a party defendant, based upon his alleged ownership interest in a painting by the artist Willem de Kooning entitled Woman in the Garden, II, 1967 (the de Kooning Painting). The de Kooning Painting was... Parties and Procedural Background Plaintiffs are the Estate of Lorette Jolles Shefner (Jolles) Page 3 by its executors, Jolles's son Barry Shefner (Barry), Jolles's daughter Ariela Braun (Ariela), Leon Miller, and a trust set up for Ariela's benefit. Galerie Jacques de la Béraudière (Galerie Jacques)... antitrust - antitrust SOUTHERN UNION COMPANY v. U.S., 11-94 (U.S. 6-21-2012) No. 11-94 Argued March 19, 2012, Decided June 21, 2012 OCTOBER TERM, 2011 As I have said, the dissenters thought that the Sixth Amendment did not require a jury to find any of these sentencing facts. Why, asked the dissenters, should Congress' or a State's desire for greater sentencing uniformity achieved through statutes seeking more uniform treatment (of similar offenders committing similar offenses in similar ways) suddenly produce new Sixth Amendment jury trial requirements? Those requirements would work against greater sentencing fairness. To treat all sentencing facts (where so specified in a statute or rule) as if they were elements of the offense could lead Congress simply to set high maximum ranges for each crime, thereby avoiding Apprendi's jury trial requirement. Alternatively, Congress might enact statutes that more... patent - patent FEDERAL COMMUNICATIONS COMMISSION v. FOX TELEVISION STATIONS, 10-1293 (U.S. 6-21-2012) No. 10-1293 Argued January 10, 2012, Decided June 21, 2012[fn*] OCTOBER TERM, 2011 Title 18 U. S. C. § 1464 bans the broadcast of "any obscene, indecent, or profane language." The Federal Communications Commission (Commission) began enforcing § 1464 in the 1970's. In FCC v. Pacifica Foundation, 438 U. S. 726, this Court found that the Commission's order banning George Carlin's "Filthy Words" monologue passed First Amendment scrutiny, but did not decide whether "an occasional expletive . . . would justify any sanction," id., at 750. In the ensuing years, the Commission went from ... B It was against this regulatory background that the three incidents of alleged indecency at issue here took place. First, in the 2002 Billboard Music Awards, broadcast by respondent Fox Television Stations, Inc., the... EEOC - EEOC DORSEY v. U.S., 11-5683 (U.S. 6-21-2012) Nos. 11-5683, 11-5721 Argued April 17, 2012, Decided June 21, 2012[fn*] OCTOBER TERM, 2011 I The underlying question before us is one of congressional intent as revealed in the Fair Sentencing Act's language, structure, and basic objectives. Did Congress intend the Act's more lenient penalties to apply to pre-Act offenders sentenced after the Act took effect? B We add one final point. Several arguments we have discussed involve the language of statutes that determine how new Guidelines take effect. Supra, at 13-14. What about those who committed an offense prior to August 3 and were sentenced after August 3 but before November 1, 2010?a period after the new Act's effective date but before the new Guidelines first took effect? Do the Fair Sentencing Act's new mandatory minimums apply to them? That conclusion simply does not follow. For one... second circuit - second circuit STENGEL v. BLACK, 11-2098-cv (2nd Cir. 6-21-2012) No. 11-2098-cv. June 21, 2012. Plaintiff Isaac Stengel, proceeding pro se, appeals the dismissal of his complaint for, among other reasons, lack of personal jurisdiction. Stengel's complaint alleged that defendant Bradford Black violated various federal criminal statutes in purchasing a diamond in Ohio from a third person who had purchased it from Stengel in New York using a fraudulent check. Black separately moves this court to impose sanctions against Stengel pursuant to Fed. R. App. P. 38. We review de novo the dismissal of an ... In reviewing Stengel's challenge to the district court's adverse determination as to personal jurisdiction, we are mindful that on three prior occasions, New York federal and state courts have dismissed Stengel's claims arising out of the same facts alleged here, concluding that New York's long-arm... second circuit - second circuit LENZ v. YOUNG, 11-2255-cv (2nd Cir. 6-21-2012) No. 11-2255-cv. June 21, 2012. The first article, published in the August 13th edition of New York Newsday, titled "Lawsuits: Trabich Transferred Contracts Because of Debt", discusses two civil suits brought by Young and Saint Annes against Lenz and his former business partner, Neal Trabich. As described in the article, those suits "accuse[] Global Golf owner Neal Trabich of conspiring with a top Long Island insurance executive to transfer the lucrative contract for the Bethpage State Park golf concessions so Trabich could avoid ... Under New York law, "it is for the court to decide whether the statements complained of are reasonably susceptible of a defamatory connotation, thus warranting submission of the issue to the trier of fact." Silsdorf v. Levine, 449 N.E.2d 716, 719 (N.Y. 1983) (internal quotation marks omitted). In so doing,... second circuit - second circuit ERCOLE v. LAHOOD, 11-1780-cv (2nd Cir. 6-21-2012) No. 11-1780-cv. June 21, 2012. Appellant Joseph R. Ercole, proceeding pro se, appeals from the district court's judgment granting the defendant's motion to dismiss the claims in Ercole's third amended complaint, which were brought under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., the Administrative Procedure Act, 5 U.S.C. § 500 et seq., the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. § 4301 et seq., the ... This Court reviews "de novo a district court's dismissal of a complaint pursuant to Rule 12(b)(6), construing the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff's favor." Chambers v. Time Warner, Inc., 282 F.3d 147,... second circuit - second circuit SNYDER v. NEW YORK STATE EDUCATION DEPARTMENT, 11-1101 (2nd Cir. 6-21-2012) No. 11-1101. June 21, 2012. This Court reviews a district court's denial of a Rule 59(a) motion for a new trial for abuse of discretion. See Munafo v. Metro. Transp. Auth., 381 F.3d 99, 105 (2d Cir. 2004). "A motion for a new trial ordinarily should not be granted unless the trial court is convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice." Lightfoot v. Union Carbide Corp., 110 F.3d 898, 911 (2d Cir. 1997) (internal quotation marks and brackets omitted). Upon review, ... I. Jury Instructions On appeal, Appellants argue that the district court gave several erroneous jury instructions. Under Fed. R. Civ. P. 51(d)(1), a party may assign error based on an erroneous jury instruction "if that party properly objected." If a party does not receive the... second circuit - second circuit EATONI ERGONOMICS v. RESEARCH IN MOTION CORP., 11-5328-cv (2nd Cir. 6-21-2012) No. 11-5328-cv. June 21, 2012. Plaintiff Eatoni Ergonomics, Inc. ("Eatoni") appeals from (1) the confirmation of a June 8, 2010 arbitration award for defendants Research in Motion Corp. and Research in Motion Ltd. (collectively, "RIM") on Eatoni's claims that RIM breached its obligations under an agreement settling litigation in the United States District Court for the Northern District of Texas relating to RIM's alleged infringement of Eatoni's patent for "reduced QWERTY" keyboard technology for cellular telephones; and (2) the ... second circuit - second circuit ALLEN v. MATTINGLY, 11-1613-cv (2nd Cir. 6-21-2012) No. 11-1613-cv. June 21, 2012. "We review dismissal of a cause of action under Fed. R. Civ. P. 12(b)(1) or 12(b)(6) de novo." Jaghory v. N.Y. State Dep't of Educ., 131 F.3d 326, 329 (2d Cir. 1997). Dismissal of a case for lack of subject matter jurisdiction under Rule 12(b)(1) is proper "when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). To survive a Rule 12(b)(6) motion to dismiss, the complaint must plead "enough facts to state a claim ... We reject Allen's argument that the district court erred when it dismissed her action without first permitting her to remove an ongoing proceeding in the Queens County Family Court relating to the custody of her child. Documents attached to Allen's February 2011 notice of removal demonstrate that the ... director corporation - director corporation ALLEN v. MATTINGLY, 11-1613-cv (2nd Cir. 6-21-2012) No. 11-1613-cv. June 21, 2012. "We review dismissal of a cause of action under Fed. R. Civ. P. 12(b)(1) or 12(b)(6) de novo." Jaghory v. N.Y. State Dep't of Educ., 131 F.3d 326, 329 (2d Cir. 1997). Dismissal of a case for lack of subject matter jurisdiction under Rule 12(b)(1) is proper "when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). To survive a Rule 12(b)(6) motion to dismiss, the complaint must plead "enough facts to state a claim ... We reject Allen's argument that the district court erred when it dismissed her action without first permitting her to remove an ongoing proceeding in the Queens County Family Court relating to the custody of her child. Documents attached to Allen's February 2011 notice of removal demonstrate that the ... antitrust - antitrust EATONI ERGONOMICS v. RESEARCH IN MOTION CORP., 11-5328-cv (2nd Cir. 6-21-2012) No. 11-5328-cv. June 21, 2012. Plaintiff Eatoni Ergonomics, Inc. ("Eatoni") appeals from (1) the confirmation of a June 8, 2010 arbitration award for defendants Research in Motion Corp. and Research in Motion Ltd. (collectively, "RIM") on Eatoni's claims that RIM breached its obligations under an agreement settling litigation in the United States District Court for the Northern District of Texas relating to RIM's alleged infringement of Eatoni's patent for "reduced QWERTY" keyboard technology for cellular telephones; and (2) the ... patent - patent EATONI ERGONOMICS v. RESEARCH IN MOTION CORP., 11-5328-cv (2nd Cir. 6-21-2012) No. 11-5328-cv. June 21, 2012. Plaintiff Eatoni Ergonomics, Inc. ("Eatoni") appeals from (1) the confirmation of a June 8, 2010 arbitration award for defendants Research in Motion Corp. and Research in Motion Ltd. (collectively, "RIM") on Eatoni's claims that RIM breached its obligations under an agreement settling litigation in the United States District Court for the Northern District of Texas relating to RIM's alleged infringement of Eatoni's patent for "reduced QWERTY" keyboard technology for cellular telephones; and (2) the ... EEOC - EEOC ERCOLE v. LAHOOD, 11-1780-cv (2nd Cir. 6-21-2012) No. 11-1780-cv. June 21, 2012. Appellant Joseph R. Ercole, proceeding pro se, appeals from the district court's judgment granting the defendant's motion to dismiss the claims in Ercole's third amended complaint, which were brought under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., the Administrative Procedure Act, 5 U.S.C. § 500 et seq., the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. § 4301 et seq., the ... This Court reviews "de novo a district court's dismissal of a complaint pursuant to Rule 12(b)(6), construing the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff's favor." Chambers v. Time Warner, Inc., 282 F.3d 147,... EEOC - EEOC SNYDER v. NEW YORK STATE EDUCATION DEPARTMENT, 11-1101 (2nd Cir. 6-21-2012) No. 11-1101. June 21, 2012. This Court reviews a district court's denial of a Rule 59(a) motion for a new trial for abuse of discretion. See Munafo v. Metro. Transp. Auth., 381 F.3d 99, 105 (2d Cir. 2004). "A motion for a new trial ordinarily should not be granted unless the trial court is convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice." Lightfoot v. Union Carbide Corp., 110 F.3d 898, 911 (2d Cir. 1997) (internal quotation marks and brackets omitted). Upon review, ... I. Jury Instructions On appeal, Appellants argue that the district court gave several erroneous jury instructions. Under Fed. R. Civ. P. 51(d)(1), a party may assign error based on an erroneous jury instruction "if that party properly objected." If a party does not receive the... |