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8th Judicial District


Decisions of Interest - March 2009 - Present


Aldridge v. Brodman v. Kaleida Health

Index No. 2003-10120 (Sup. Ct. Erie Co. June 17, 2009)
Motion to dismiss Third-Party Complaint seeking indemnification and/or contribution granted in part and denied in part.

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Broadway Rinks Ltd. Partnership v. Assessor, Town of Cheektowaga and The Board of Assessment Review of the Town of Cheektowaga

Index Nos. 2006-6551, 2007-7149, 2008-8045 (Sup. Ct. Erie Co. June 18, 2009)
Decision following trial of three (3) tax certiorari petitions reducing assessment and directing refunds.

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Brodman v. Kaleida Health

Index No. 2008-868 (Sup. Ct. Erie Co. April 21, 2009)
Motion to dismiss causes of action for breach of the implied covenant of good faith and fair dealing, tortious interference with prospective economic advantage and prima facie tort granted.

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County of Erie v. Abbott Laboratories, Inc. et al.

Index No. 2439/2005e
Granting in part defendants' motion pursuant to CPLR 3126 based upon plaintiff's failure to timely institute a litigation hold.

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DiPizio Construction Co., Inc. v. Niagara Frontier Transportation Authority

Index No. 2009-1203 (Sup. Ct. Erie Co. December 18, 2009)
Motion to dismiss a “constructive acceleration” claim as being barred by the terms of the contract’s “no damage for delay” clause, together with a claim for additional material costs associated with the delay, granted with leave to replead.

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EGW Temporaries, Inc. v. RLI Insurance Co. v. Titan Wrecking

Index No. 2006-9010 (Sup. Ct. Erie Co. December 7, 2009)
Decision following a non-jury trial reforming a payment bond based upon mutual mistake and granting judgment to a subcontractor thereon.

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Ellicott Group LLC v. State of New York

Index No. 2009-10684 (Sup. Ct. Erie Co. September 25, 2009)
Application for a preliminary injunction denied for failure to demonstrate irreparable harm in an action seeking a declaration that the State of New York Executive Department Office of General Services lacks statutory authority to require that the “prevailing wage” be paid for work done on privately owned and leased premises.

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Empirian Dockside, LLC v. Dockside Village, LLC

Index No. 2008-1212 (Sup. Ct. Erie Co. May 18, 2009)
Pursuant to the terms of the parties’ agreement, plaintiffs’ motion for summary judgment declaring that plaintiffs had no further obligation to close on the property and for the return of their deposit granted; defendants’ motion for summary judgment (a) limiting damages to the amount of the escrow deposit, (b) dismissing the cause of action for specific performance and canceling the Notice of Pendency, and (c) dismissing the cause of action for fraud also granted.

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Erie County Sheriff’s Police Benevolent Association v. County of Erie

Index No. 2008-4274 (Sup. Ct. Erie Co. May 26, 2009)
Motion for summary judgment on liability for breach of contract granted.

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George v. Erie & Niagara Insurance, et al.

Index No. 2003-10023 (Sup. Ct. Erie Co. June 18, 2009)
Plaintiffs’ motion for summary judgment for indemnification of a default judgment against an insured as the assignee of the rights of the insured granted and defendant’s cross-motion for summary judgment dismissing the complaint denied.

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George v. Healthnow New York, Inc., et al.

Index No. 2004-4661 (Sup. Ct. Erie Co. July 28, 2009)
Motion to dismiss complaint granted, dismissing causes of action for tortious interference with contracts, tortious interference with prospective economic advantage, and under Public Health Law § 4406-d and Insurance Law § 4803.

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Glen Phillippi Lumber Co., Inc. v. Hawk

Index No. 2009-227 (Sup. Ct. Erie Co. December 21, 2009)
Motion to vacate default judgment granted.

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Iannello v. New York State Unified Court System/Office of Court Administration

Index No. 2008-8994 (Sup. Ct. Erie Co. March 4, 2009)
Motion to dismiss complaint granted, dismissing causes of action for declaratory judgment and recovery of back wages and costs, since the only cause of action properly before the Court was barred by the doctrine of res judicata and the remaining causes of action could be asserted only in the Court of Claims.

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Inter-Community Memorial Hospital, et al. v. The Hamilton Wharton Group, Inc., et al.

Index No. 133991 (Sup. Ct. Niagara Co. December 23, 2009)
Motion granted dismissing all causes of action in the Complaint and Amended Complaint concerning a Workers’ Compensation group self-insurance trust, with leave to replead causes of action for negligence and indemnification.

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Legacy Health Care v. Commissioner of Assessment and Taxation of the City of Buffalo and The Board of Assessment Review of the City of Buffalo

Index No. 2008-3317 (Sup. Ct. Erie Co. March 6, 2009)
Motion to dismiss tax certification petition denied, as the RPTL § 1573 reassessment performed by respondent constituted an exception under RPTL § 727 sufficient to lift the moratorium of RPTL § 727.

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McGuire Children, LLC, et al. v. Huntress, et al.

Index No. 2004-1999 (Sup. Ct. Erie Co. June 17, 2009)
Following a non-jury trial, the court dismissed plaintiff’s fraud cause of action on the grounds that the sophisticated plaintiff had failed to establish justifiable reliance but found that defendant had breached his fiduciary duties to plaintiff as managing director of an LLC and fellow member in the LLC. The court held that the defendant’s fiduciary duties, which were similar to those owed between partners, arose under common law as opposed to from LLC Law Section 409(a) which sets forth the “business judgment rule”. The court further held that reliance was not an element of a cause of action for breach of fiduciary duty and a person to whom such a duty is owed is under no obligation to conduct his/her own investigation of the facts.

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M&T Bank Corp. v. Gemstone CDO VII, LTD., et al.

Index No. 2008-7064 (Sup. Ct. Erie Co. April 7, 2009)
Pre-answer motions to dismiss granted in part and denied in part where plaintiff seeks recovery of more than $82 million of losses allegedly suffered through the “fraud and other wrongful conduct” of the defendants arising out of the purchase of two promissory notes which were part of a derivative security known as a “collateralized debt obligation” (“CDO”). The Complaint contains causes of action against multiple defendants for common law fraud, aiding and abetting common law fraud, negligent misrepresentation, breach of fiduciary duty, aiding and abetting breach of fiduciary duty, breach of contract, violations of general business law §§ 349 and 350, rescission of contract (on the theories of fraud, mistake and/or illegality), and unjust enrichment.

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Rocchio v. Leas-Co Leasing Inc., et al

Index No. 2006-8848 (Sup. Ct. Erie Co. June 30, 2009)
Plaintiffs’ motions for partial summary judgment denied and defendants’ motions for summary judgment granted in part dismissing causes of action for diversion of profits and dividends, breach of fiduciary duty with respect to a testamentary trust, conversion of trust assets, breach of fiduciary duty related to Uniform Gifts to Minors/Uniform Transfers to Minors Act accounts and conversion of assets in the UGMA/UTMA accounts.

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Roswell Park Cancer Institute Corp. v. Sodexho America, LLC, et al.

Index No. 2007e-2862 (Sup. Ct. Erie Co. March 11, 2009)
Following an in camera review of documents identified by defendants as privileged, request for production granted in part and denied in part based upon assertion of the attorney work product privilege, the attorney-client privilege and/or the “materials prepared in anticipation of litigation” privilege.

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Sicilia Construction Company, Inc. v. Masters Edge, Inc., et al.

Index No. 2004-258 (Sup. Ct. Erie Co. December 9, 2009)
Decision following a non-jury trial granting judgment for non-payment on a construction project and granting judgment against Masters Edge and three individuals, jointly and severally, for a violation of the Lien Law trust provisions of Article 3-A of the New York Lien Law.

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SPS Temporaries, Inc. v. Washington Mutual Bank, et al.
Index No. 2007-8712 (Sup. Ct. Erie Co. April 7, 2009)
Motions to dismiss granted in part insofar as Plaintiff asserted causes of action for conversion based upon checks deposited more than three (3) years prior to the commencement of the action, but otherwise denied as to claims for money had and received, conversion, and pursuant to UCC § 3-419 (1).

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State Ex Rel. Kevin Grupp and Robert Moll v DHL Express (USA), Inc.

Index No. 4821/08e State False Claims Act cause of action not pre-empted by Airline Deregulation Act (49 USC § 41713) or Federal Aviation Administration Authorization Act (49 USC § 14501)

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10 Ellicott Square Court Corp., et al. v. Violet Realty, Inc., et al.

Index No. 2008-7591 (Sup. Ct. Erie Co. December 21, 2009)
Motion to dismiss and for summary judgment granted, dismissing causes of action for tortious interference, malicious prosecution, abuse of process, prima facie tort and attorneys fees.

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Zazynski v. Empire State Financial Group, LLC, et al.

Index No. 2008-520 (Sup. Ct. Erie Co. March 6, 2009)
Defendant Falkowitz’s motion to dismiss causes of action for scheme to defraud/fraudulent inducement, fraud and/or misrepresentation, breach of contract, and breach of fiduciary duty granted based upon expiration of the statute of limitations.

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