On behalf of its sophisticated financial services client, Pastore & Dailey LLC recently defeated a Motion to Stay a New York Supreme Court action pending resolution of an ongoing arbitration. In denying the defendants’ motion for a stay, the court agreed with P&D’s arguments that the corporate defendants’ conduct in choosing not to participate in the arbitration, thus creating a complete separation of identity between the defendants in the court case and the respondents in the arbitration, could not be used as an excuse to stop the court proceedings until the arbitration was resolved.
Tag: Firm Victory
Defeated Emergency Appeal to NYS Appellate Division
Pastore & Dailey recently defeated an emergency appeal to NYS Appellate Division (1st Dept.) by a client’s competitor in the financial services industry (including a FINRA member firm) on the trial court’s denial of its motion to stay our client’s lawsuit in NYS Supreme Court (New York County) against the competitor and its principals while a related FINRA arbitration was in process. (Our client is suing the competitor and its principals for tortiously interfering with our client’s contracts with its ex-employees, among other things.)
Enforcing Texas Judgement in New York for International Clients
The attorneys at Pastore & Dailey recently claimed a victory with respect to opposing a joint motion to dismiss and motion for summary judgment in New York Supreme Court (Kings County). In that matter, Pastore & Dailey’s clients successfully secured a judgment for the client (a limited liability company whose members reside in Israel) in excess of $4MM in a Texas state court against a now defunct company. Our attorneys successfully domesticated that judgment in the New York Supreme Court and commenced an action against a party who owes money to the judgment debtor (the defunct company). After the commencement of the action, our attorneys successfully negotiated that a large sum of money be held in escrow by the defendant while the New York action was pending. Said funds came out of the sale of commercial property in New York City, which funds our clients claim to be entitled to as the judgment creditor. The defendant simultaneously moved to dismiss and for summary judgment claiming that Article 52 of the New York CPLR was the exclusive method to collect on a prior judgment and because the sale of the property did not create a cause of action for unjust enrichment and the creation of a constructive trust. While Article 52 is the primary means to collect on a judgment, our attorneys successfully argued that Article 52 is not the exclusive means upon which to collection on a judgment and furthermore successfully argued that the sale of the property created a colorable cause of action for unjust enrichment as the enhancement of value of the property was created, in part, by the investment of the judgment debtor. Therefore, the judgment creditor (our client) will be able to pursue its claims against the defendant for money that is owed to the judgment debtor.
Summary Judgement Win
Successfully represented a software development company in the motion for summary judgment phase of litigation pending in the Southern District of New York, in which the court determined that the Firm’s client could seek in excess to $15 million in damages at trial on its primary claim against a Fortune 500 company.
California FINRA Aribitration
The attorneys at Pastore & Dailey LLC successfully represented Los Angeles based broker-dealer in the prosecution of a FINRA arbitration in California seeking the collection of a contractually earned broker dealer’s investment banking fee. The issuer represented by our client claimed that the investment banking fee was not owed, but ultimately satisfied the fee obligations by transferring equity in the company to the broker-dealer as payment.
Motion to Strike Successful
Pastore & Dailey recently brought a successful motion to strike in Connecticut Superior Court against a former employee of a client (a major world-wide insurance company). The Court’s decision included a finding that the former employee failed to articulate facts sufficient to support a claim of a fiduciary duty by an employer to an employee for a long-term incentive plan (“LTIP”).
PROCEDURE – The former employee sued the client over a year ago for further payments pursuant to the LTIP (the employee had already received several years of payments under the LTIP). Pastore & Dailey first sent the former employee’s counsel a Request to Revise the Complaint, as we perceived the pleadings to be legally insufficient as written. Opposing counsel for the former employee objected to the Request to Revise, but the Court overruled all of same, agreeing with Pastore & Dailey that the former employee needed to revise the Complaint per Pastore & Dailey’s Request to Revise.
The former employee’s counsel then revised the Complaint, but Pastore & Dailey filed a Motion to Strike with the court, again alleging that the pleadings in the Complaint were legally insufficient, as revised. The parties had oral argument with the court a few months ago.
RESULT – Just recently, the court issued its decision, striking one of the counts per Pastore & Dailey’s motion, and indicating that another count is likely to fail, if Connecticut state law is found to apply.
In the count that was stricken, the Court stated that a mere “conclusory allegation” that the employer owed the employee a fiduciary duty under the LTIP was insufficient to overcome the Motion to Strike that count in the Complaint.
Regarding the count for an allegation of breach by the employer of an implied covenant of good faith and fair dealing, the Court stated such claim would also fail, should the Court ultimately determine that Connecticut law is the applicable law in this case. (The Court stated that the choice of law question was not yet “ripe” at this stage of the proceedings. But both the client and the employee are domiciled in Connecticut.)
Only a breach of contract claim otherwise remains in the Complaint.
Defeated Emergency Motion to Stay
Pastore & Dailey recently defeated an emergency motion by a client’s competitor in the financial services industry (including a FINRA member firm) to stay our client’s lawsuit in NYS Supreme Court (New York County) against the competitor and its principals while a related FINRA arbitration was in process. (Our client is suing the competitor and its principals for tortiously interfering with our client’s contracts with its ex-employees, among other things.)
Motion to Strike Victory
Pastore & Dailey recently succeeded in defending their client’s claims against a motion to strike in Connecticut Superior Court. Pastore & Dailey was successful on the majority of their counts, including fraud, multiple counts for breach of contract and breach of the covenant of good faith and fair dealing, CUTPA and breach of fiduciary duty. While most of Pastore & Dailey’s successful rulings came from the bench, the Judge did issue a written opinion as to the breach of fiduciary duty claims. Pastore & Dailey prevailed in arguing that their client, a co-owner and co-manager of a successful hedge fund, was in fact owed a fiduciary duty by the other co-owner/manager, despite their equal ownership interests. The court agreed with Pastore & Dailey’s arguments that the existence of a fiduciary relationship depends on several factors and simply because there is equal ownership does not preclude one party from operating as a fiduciary to the other in their management and control. Thus, the court allowed the breach of fiduciary duty claim to survive the motion to strike and remain a valid cause of action in the case along with the majority of their claims, including their most important claims.
Breach of Claim Win for California-Based Technology Company
Pastore & Dailey successfully represented a California-based tech company in a breach of contract claim against a national cable company arising out of the faulty installation of high-speed data lines.
Pro Bono Victory
The attorneys at Pastore & Dailey LLC represented a federal prisoner in a case against the United States of America on a pro bono basis. The firm was asked to represent the client (who had been acting on a pro se basis) by a Connecticut District Court Judge. The matter involved complex issues of medical malpractice and wrongful death. Overcoming the Government’s sovereign immunity challenges, Pastore & Dailey LLC was able to secure a very significant settlement for its client.