Matters

Commercial Real Estate Firm – Motion to Dismiss Granted in Contract Dispute

Herrick successfully represented a nationally prominent commercial real estate firm in a motion to dismiss an amended complaint filed by a potential purchaser of a significant commercial condominium unit in Manhattan. After signing the purchase contract, the purchaser challenged certain aspects of the transaction. The New York County Commercial Division granted the seller’s motion to dismiss the purchaser’s amended complaint in its entirety and canceled the notice of pendency which was preventing our client from refinancing or selling the property.

Cooper Tire & Rubber Company – Product Liability Litigation

On August 5, 2019, Justice Alison Tuitt of the New York Supreme Court, Bronx County, granted longtime Herrick client, Cooper Tire’s motion for summary judgment in a product liability action that has been pending for over 8 years. This case emanates from a tragic and highly publicized accident involving multiple fatalities in 2010 where a church van experienced a rollover after a left rear tire failure. Cooper Tire manufactured the failed tire and asserted from the outset that it was not defectively manufactured or designed, nor was it the proximate cause of the incident. The Court, while keeping Ford Motor Company in the case on various theories of product liability, dismissed all claims and cross-claims against Cooper Tire, finding that the tire it manufactured had been misapplied, misused and abused, leaving it in a different condition than it had been at the time of its manufacture in 2003.

Fotografiska Park Avenue Flagship

Represent Fotografiska, a Swedish photography destination, in connection with establishing its NYC flagship location at 281 Park Avenue South, New York.

Leading Telecommunications Company – Successfully Defeated an Action at the Motion to Dismiss Stage

Herrick successfully defeated an action at the motion to dismiss stage for its client, a leading telecommunications company. The plaintiff, a public works contractor, sued the telecommunications company for over $2.2 million.

In opposing the motion, Herrick explained that whenever “interference work” is anticipated or involved in conjunction with a City project, the contract includes an addendum called “Section U” (or a specific directive from the City) that identifies what specific work is anticipated. The absence of a Section U addendum in the City contract confirmed that the telecommunications company had no obligation to pay for any protection work that was not agreed upon.

In his comprehensive 20-page decision, Justice Joel M. Cohen adopted all of our arguments, including on the relevance of Section U. This is particularly noteworthy because Courts rarely address these issues.

Commercial Landlord – Leasing Dispute with International Retailer

Herrick delivered a major victory to a commercial landlord against a billion-dollar international retailer with more than 500 stores worldwide. The retailer sought rescission of its lease based on claims of mutual mistake, breach of contract, breach of duty to cooperate and breach of implied covenant of good faith. The court denied the tenant's motion to amend its complaint to allege impossibility, frustration of performance, constructive eviction, as untimely. Herrick successfully showed that the landlord was not required to do the work for the tenant or to obtain all necessary permits. Herrick believed that the retailer's real motivation for abandoning the space was a corporate decision to open a larger store at a different location. The court found that the retailer failed to conduct proper due diligence as to the necessary certificate of occupancy, the tenant took the premises "as is" and the landlord made no representation to permitted uses. The court dismissed every one of the claims against the landlord. Furthermore, the court granted the landlord a judgment of over $13 million dollars for unpaid rent, plus interest and attorneys fees, bringing the total expected judgement to over $20 million dollars.

Wolf Haldenstein – Dispute with Manhattan Landlord

Achieved significant award for Herrick client, the highly-respected plaintiff's class action law firm Wolf Haldenstein Adler Freeman & Herz LLP, in a dispute with their Manhattan landlord. The landlord failed to properly renovate Wolf Haldenstein's office space as outlined in their lease agreement, thus leaving the office in an unsuitable condition for people to work in. The court affirmed that the landlord and its affiliates failed to properly renovate office space leased by Wolf Haldenstein and dismissed the landlord's counterclaim for allegedly owed back rent. The court also awarded Wolf Haldenstein attorney fees.

Major Telephone Company – Appellate Win That May Benefit Utility Companies Throughout New York City

Successfully defended a major telephone company against claims brought by a New York City contractor seeking several million dollars in fees for “interference work” under a municipal contract. Our client challenged the interpretation of a common law rule related to interference work, although many contractors had been utilizing this interpretation for years in order to obtain payments for this work from the utilities. This Appellate Division decision affirmed the correct interpretation of the common law which only allows the City (and not a private contractor), when utilizing its police powers, to require payment from utilities for protection or relocation of its facilities. Going forward, utilities may have substantial sums that they were previously led to believe that they were responsible.

Partial Owner of Real Estate Brokerage Firm – Arbitration Win in Dispute Over Value of Membership Interest

Herrick successfully represented the partial owner of a brokerage firm in dispute over the value of membership interest in the company. As a result, Herrick’s client was awarded substantially more than the purchaser’s initial offer.

The Goodyear Tire & Rubber Company – Product Liability Litigation

Represent Goodyear in product liability matters involving tires, rims, hoses, inflation tools, roofing products, retail stores and related real estate issues.

Continental Tire – Product Liability Litigation

Representing Continental Tire North America, Inc. - the North American operations of global automotive manufacturing company Continental AG - in product liability matters.

Cooper Tires – Product Liability Litigation

Represent Cooper Tires with its product liability matters.

Former Owners of Acquired Business – Litigation to Recoup Monies Held in Escrow

Representing the former owners of a designer and distributor of mechanical and chemical fastening products acquired by a Fortune 500 manufacturer of industrial tools and household hardware in litigation to recoup monies held in an escrow account as indemnification payments for post-closing risks. Dispute involves issues related to import tariff and customs duties imposed by Canadian authorities on products imported by the acquired business from the Republic of China.

Ireland-based Technology Company – Advisory Firm’s Breach of Contract Claims Dismissed

Secured the dismissal of all claims against an Ireland-based software company and its US subsidiary filed in New York state court by an advisory firm alleging our client had breached the terms of a service agreement in which the plaintiff was to either find a buyer for the company or find entities willing to provide financing. Asserting breach of contract, fraudulent inducement and unjust enrichment, among other causes of action, the plaintiff further alleged that the agreement was breached just prior to a transaction which would have entitled the plaintiff to a significant fee. In its order, the court agreed that the plaintiff had failed to establish jurisdiction over the Ireland-based parent and that the U.S.-based entity was never a party to the agreement at issue.

Manufacturer – All Claims Dismissed in JAMS Arbitration Initiated by Former CEO

Achieved total victory for a promotional products manufacturer and distributor, defeating all claims asserted in an arbitration for breach of employment and shareholders agreements, breach of fiduciary duty, and shareholder oppression initiated by the company’s former CEO and former majority shareholder. The panel found that the claimant had indeed been properly terminated, referencing numerous instances in which the claimant charged the client for non-business related expenses or used company resources to conduct side businesses for the sole benefit of the claimant’s friends and relatives. Finding the remaining claims meritless, the panel ultimately found our client, as the prevailing party, entitled to recover the full costs of the arbitration, including legal fees.

Manhattan Developer – Construction Delay Issues

Advising one of the premiere developers of Manhattan luxury residential condominiums in connection with a construction agreement and construction delay issues involving the general contractor and a subcontractor on a new $450 million luxury condominium tower.

Sponsor – Brooklyn Waterfront Residential Tower Construction Defect Dispute

Negotiated a favorable settlement on behalf of the sponsor of a luxury condominium tower on Brooklyn’s waterfront to resolve construction defect claims by the condominium’s board.

Public Utility – Interference Work Dispute

Advising a major public utility company on a dispute and possible arbitration involving over 1,600 invoices for interference work related to a major public improvement project for the City of New York.

Technology Company – Licensing Dispute

Represented the developer of an innovative insurance product in New York State court litigation arising from the alleged breach of a licensing agreement which gave our client exclusive access to certain data that serves as the foundation for the new product. All claims were voluntarily dismissed under a settlement agreement, and the parties entered into a new, more favorable, licensing agreement.

Real Estate Contractor / Investor – Partnership Dispute

Representing an experienced contractor and real estate investor in litigation with a former business partner over proceeds from the sale of two Brooklyn properties.

Defense of Consolidated Personal Injury Actions from Passenger Van Rollover

Representing a leading tire manufacturer in multiple personal injury and wrongful death actions consolidated in Bronx Supreme Court. The actions seek damages from our client and other defendants in connection with a rollover accident involving a 15-passenger transport vehicle.

Condominium Sponsor – Construction Defect Dispute with Construction Manager and Contractors

Representing the sponsor of a Brooklyn, NY condominium development in litigation with the project's construction manager and contractors arising from claims by the condominium's board of managers that work in accordance with an offering plan under which the condominium's units were sold was not adequately performed.

Negotiated Settlement Resolving Construction Defect Dispute with Luxury Residential Tower’s Board

Represented the sponsor of a luxury Manhattan residential condominium tower in assessing and resolving damage claims asserted by the building’s board of managers in connection with alleged construction defects, violations of construction specifications, failure to comply with the offering plan, and breaches of various warranties. Negotiated a favorable settlement that resolved the dispute amicably and avoided potentially disruptive and costly litigation.

Multinational Cosmetics Company – Favorable Resolution to Breach of Contract Action

Represented a multinational cosmetics company in litigation filed in New York federal court by a Washington, DC area retailer asserting breach of contract, detrimental reliance, and tortious interference claims, which sought monetary damages and a preliminary injunction preventing our client from violating a retailer agreement that allegedly required it to supply cosmetic products to the plaintiff. After obtaining an order denying the plaintiff’s motion for a preliminary injunction, Herrick negotiated a settlement on favorable terms that resolved the litigation.

Manufacturer – Summary Judgment in Breach of Contract Action

Successfully represented a Queens, NY-based packaging manufacturer, obtaining summary judgment in a New York state court breach of contract action against a former customer who failed to pay for goods ordered and received.

Ireland-based Company – Dismissal for Lack of Jurisdiction

Successful defense of an Ireland-based entity in litigation asserting fraud and breach of warranty claims arising from alleged misstatements and omissions of material facts made in the shareholder’s agreement of a venture formed to lay an undersea telecommunications cable between Ireland and Wales. Secured the client’s dismissal from the action based on lack of personal jurisdiction.

Product Manufacturer – Class Action

Represented a product manufacturer in a federal class action involving claims of consumer fraud and product liability.

Global Automotive Manufacturer – Dismissal of All Claims in Product Liability Litigation

Herrick successfully defended the North American operations of a global automotive manufacturing company in product liability litigation involving claims based upon implied and express warranties, strict liability and negligence, all premised upon alleged property damage to a vehicle and consequential damages to a construction business caused by allegedly defective tires. The court dismissed all claims against our client, finding that the causes of action were barred under the economic loss doctrine.

Successful Defense in Multi-Plaintiff Litigation Alleging Fraud, FLSA and Civil RICO Violations

Defended individuals and related corporations affiliated with a global network of yoga studios in a highly publicized lawsuit in Arizona federal court in which more than two dozen plaintiffs asserted claims including fraud, undue influence, unfair and deceptive business practices, emotional distress, FLSA violations and civil RICO violations. Following a ruling dismissing the majority of claims, this litigation was ultimately terminated when all remaining causes of action asserted in an amended complaint were either dismissed by the court or withdrawn by the plaintiffs.

Former Corporate Officer – Successful Defense of Fraud and Unjust Enrichment Claims

Successful defense of a former corporate officer in suits filed in New York and Wisconsin state courts arising from an investor’s claims of fraud and unjust enrichment in connection with alleged misrepresentations about the sales, revenues and future prospects of a business in which the plaintiff had invested.

Borrower – Lending Liability

Represented a borrower regarding management of escrow fund for continuing care retirement community.

Corporate Litigation

Assistance with post-closing indemnification issues following sale and merger.

Alan D. Kaplan, Counsel