Real Estate Litigation and Hearing – Nonprofit Facility
Herrick represented PEY Realty LLC, which is an entity formed for the benefit of the Chabad Lubavitch of the West Side, in an arbitration against an affiliate of Sackman Enterprises. In 2017, PEY entered into a contract to purchase a $30m community facility condominium unit in a new building being developed on W 96th St. The condominium unit, 6 floors and a cellar, was intended to house the Chabad’s permanent operations, including all religious, educational, and community services. In connection with the contract, PEY tendered a multi-million dollar down payment. The project experienced years of construction delays. Once it became clear that litigation was imminent, each party called defaults under the contract. After a three-day hearing, The Herrick team was able to secure an award directing that the down payment be returned to PEY, together with a significant award in additional money damages, including the lion’s share of attorneys’ fees. The Chabad can finally put the down payment to a productive use and resume its efforts to find a permanent home.
International Arbitration Dispute
Successfully defended an international manufacturer against a complex, multi-million dollar breach of contract claim brought by a U.S. trading company involving the sale of petrochemicals, including an award of attorneys’ fees, expenses and costs. The case primarily concerned whether a contract was formed under the UN Convention on Contracts for the International Sale of Goods (the CISG) or the UCC. The representation included a seven-day trial involving multiple fact and expert witnesses.
Successful Challenge to Arbitration Award in $42 Million Dispute
Herrick successfully argued for the overturning of an arbitration award in a $42 million dispute over the proper distribution of an estate - an especially notable win for our client as arbitration awards are so difficult to vacate. Based on the arbitrator's violation of a little-known New York state law that invalidates arbitration proceedings held on a Sunday, the court ruled that the arbitration proceedings and award were void, and also found that the arbitrator had exceeded the scope of its power when it imposed a legal fee penalizing any party challenging the award when the parties had never agreed to such a provision. Additionally, the court found that the award involved distribution of estate assets which can only be distributed by the Surrogate's Court.
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.
Real Estate Owners – “Baseball Arbitration” and Litigation over Valuation and Buy-out of NYC Shopping Center
Herrick delivered a major victory to real estate owners in a buy out dispute between partners over the valuation of a New York City shopping center that they co-owned. Prior to Herrick's involvement, the opposing party had won the right to buyout our clients' interest in the retail center, with the purchase price to be set based on a neutral appraiser's determination as to which party's appraisal was more accurate. The firm achieved two decisive victories on behalf of our clients in New York Supreme Court, obtaining an order that the appraisal process move forward immediately and then that the "date of valuation" was to be current rather than a 2012 date that the parties had previously discussed. Thereafter, two months of extensive appraisal proceedings ensued, and our valuation was ultimately chosen over the opposing party's assessment, which was many millions of dollars lower. The valuation date decision was affirmed, with costs, by the Appellate Division, Second Department.
Appellate Court Victory Barring Arbitrator from Modifying Original Award
Herrick secured an important victory before the Appellate Division, Second Department, obtaining a ruling affirming the trial court’s decision to overturn a Bet Din arbitration in which the arbitrator issued an additional award against our client after having already rendered a final award. The plaintiff had argued that the arbitrator’s first award of $425,000 was only an interim judgment and that the agreement vested the arbitrator with continuing authority to issue another award against our client, two years later and involving the same general subject matter, for an additional $3.75 million. Although courts rarely overturn arbitration awards, the appellate court agreed that the arbitrator lacked the authority to expand the previous award and affirmed the decision on the grounds that the arbitrator was "Functus Officio."
Insurance Producer – Commission Dispute
Represented an insurance producer embroiled in an arbitration with a former client over unpaid commissions. The arbitration resulted in a recovery of over $1 million.
Title Insurer – ARIAS UK Arbitration
Successfully represented a leading title insurance company in a London breach of contract arbitration initiated by the Cypress-based buyer of a $32 million Ukrainian property. Herrick negotiated a settlement resolving the dispute for a small fraction of the original claim.
Las Vegas Conference Center Real Estate Investors – Arbitration Victory
Represented one of three investor groups in an existing five million square foot conference and exhibit center in Las Vegas in a seven-week, three-panel arbitration over each investor group's rights and ownership in the project. The panel found that all parties to the transaction, except Herrick's clients, had engaged in wrongful conduct. The conference center, at its completion, will cost more than $1 billion to build and is planned to expand to 12 million square feet.
Owner of Southampton Private Residence – AAA Arbitration with General Contractor
Represented the owner of a newly constructed private residence in Southampton, NY in an arbitrated dispute involving a general contractor’s claim for $1.5 million in damages for alleged non-payment of labor and materials. Prior to a scheduled hearing on potential spoliation of evidence by the petitioner, an amicable settlement was reached for a small fraction of the original claim under an agreement which indemnified our client against any claims asserted by subcontractors.
New York Residential Brokerage Company – Successful Mediation
Representation of a prominent New York residential brokerage company in a successful mediation against a civil rights suit alleging conspiracy with building owners to steer families with children away from apartments.
Sports Franchise – Arbitration Award Enforcement
Represented a major sports franchise in obtaining a judgment confirming an arbitration award for breach of contract against a season ticket holder.
S. Rothschild & Co., Inc. – Cybersquatter Eviction
Represented S. Rothschild & Co. in its successful UDRP arbitration against a cybersquatter to recover a domain containing our client's registered trademark. S. Rothschild & Co., Inc. v. Bao Shui Chen, NAF Decision (Dec. 29, 2007)
Registered Investment Advisor – Business Divorce Dispute
Herrick represented the co-founder of a successful mutual fund RIA in a business divorce dispute with his partner brought in Pennsylvania state court. After the parties agreed to submit their claims to arbitration, Herrick's client prevailed following a two week hearing. The arbitrator found that our client's ex-partner had breached his fiduciary duties, and made a substantial award to our client.
Joseph Kahan – Arbitration Award Vacated
Representation of Joseph Kahan in successfully petitioning the Kings County Supreme Court to vacate a rabbinical court's arbitration award regarding competing claims to real properties in Brooklyn and other assets. The arbitration agreement provided that the parties could proceed only with counsel acceptable to the arbitrators. Kahan participated in the arbitration even after the arbitrators rejected his proposed counsel and insisted that he could proceed only with counsel they would select for him. Initially, Kahan proceeded without counsel at all, but as the matter progressed, he realized that the arbitrators' procedures were unfair and he withdrew from the arbitration before the panel ruled. Describing its ruling as one of first impression under New York law, the court agreed that the arbitrators had denied Kahan the right to counsel of his choice, and overturned the award. This case was featured in the November 24th 2009 edition of the New York Law Journal. (26 Misc.3d 615, 889 N.Y.S.2d 839 (2009))
Law Firm Partner – Profits Dispute
Representation of a partner in a law firm against the firm in an arbitration concerning unpaid profits. A 15-day trial resulted in an award to our client of nearly $500,000.