Matters

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.

Developers – Summary Judgment Dismissing Breach of Joint Venture Claims

Obtained summary judgment on behalf of real estate developers dismissing all claims filed by a plaintiff alleging our clients had breached an oral joint venture that entitled the plaintiff to share in the profits of a sale of a Brooklyn property. The Kings County Supreme Court also denied plaintiff’s cross motion for leave to amend and to compel disclosure.

Commercial Real Estate Tenants – Pre-Discovery Summary Judgment Ruling Granting Specific Performance of Lease with Purchase Option

Represented Split Rail Holdings, LLC, tenants of a commercial real estate building in the Lower East Side and secured a victory on a pre-discovery summary judgment motion, obtaining specific performance of the lease, allowing Split Rail to purchase the property for $6.3 million. The decision was affirmed by the Appellate Division, First Department.

Employers – Wage and Hour Litigation

Successfully obtained dismissal or early settlement of state and federal wage and hour individual and class claims (NYLL and FLSA), against employers in the real estate, healthcare, hospitality industries.

Real Estate Owners – Represented in New Jersey Attorney General, Division on Civil Rights Investigation and Administrative Action

Represented owner of residential properties in the successful conclusion of proceedings and investigations brought by the New Jersey Attorney General, Division on Civil Rights for allegations of discrimination in housing.

New Jersey-based Nursing Home Facility – Leasing Dispute

Represented the defendants in a dispute where the parties had contracted for a long-term lease of a nursing home facility, representing several million dollars of rent. After our clients ultimately decided not to move forward with the lease, they negotiated a settlement that included a general release with the owner of the facility. Notwithstanding that, the facility owner subsequently filed suit in the Superior Court of New Jersey for eight separate causes of action, including breach of contract, tortious interference, and fraud in the inducement. In its complaint, the plaintiff also argued that the release was unenforceable because it was procured by economic duress. Herrick filed a motion to dismiss, arguing that the plaintiff did not plead the existence of economic duress at the level necessary to set aside the release. The court agreed with Herrick, dismissed the complaint without prejudice, and ordered that any refiled complaint contain specific facts with respect to the exact nature and extent of the economic duress at the time the release was given. This was a major victory in that there are very few New Jersey cases where a release has been enforced on a motion dismiss in the face of a claim of economic duress.

Real Estate Management Company – Precedent Setting Decision in Wage & Hour Action

Successful defense of a real estate management company and its principal sued by a former residential janitor and two alleged former laborers at New York City properties managed by our client. The plaintiffs claimed minimum wage and overtime violations under the Fair Labor Standards Act and New York Labor Law, as well as related common law claims. The court granted, in substantial part, our motion to dismiss, striking 9 of the plaintiffs’ 12 claims in one of the first decisions to interpret the minimum wage and overtime provisions under New York law and the Minimum Wage Order for the Building Service Industry as they relate to residential janitors.

New York City-based Private School – Secured Dismissal of Discrimination Claim Based on Conviction Record

Secured a finding of no probable cause and dismissal of discrimination claims before the New York State Division of Human Rights in favor of a New York City-based private school, finding that the school properly considered the factors under the New York Correction Law in deciding to terminate the employee.

Health Care Provider – Secured Dismissal of Age Discrimination Claim

The New York State Division of Human Rights awarded a complete dismissal of discrimination claims in favor of the employer, a New York based health care provider. The Division found that a former employee was not terminated because of age, but for legitimate business reasons.

Real Estate Management Company – Secured Dismissal of Discrimination and Retaliation Claims

The New York State Division of Human Rights awarded a complete dismissal of all discrimination claims in favor of a large real estate management company. The Division found that the former employee was terminated for legitimate business reasons, including egregious performance violations, and not based on age, disability, national origin, race or sex.

Successfully Obtained TRO in Theft of Trade Secrets Matter

In a theft of trade secrets action, Herrick successfully obtained a temporary restraining order in the New York County Commercial Division, which (i) barred our client’s competitor from any further use or access to misappropriated trade secrets, (ii) enforced our client’s restrictive covenants in a former employee’s employment agreement, and (iii) prohibited the competitor from contacting or soliciting dozens of customers identified in our client’s stolen information.

Health Care Provider – Dismissal of Actions Alleging Discrimination and Retaliation

Successfully defended a healthcare provider against alleged sex and gender discrimination and retaliation claims by a former employee. Obtained full dismissal of all claims in the U.S. District Court in the Southern District of New York.

Waste Management Company – Secured Dismissal of Discrimination Claims

The New York State Division of Human Rights awarded a complete dismissal of all discrimination claims in favor of a waste management company, finding that its former employee was not subject to discrimination based on disability.

Real Estate Management Company– Secured Dismissal of Discrimination Claims

The New Jersey State Division of Civil Rights awarded a complete dismissal of all claims in favor of a real estate management company, finding that the potential tenant was not denied a property rental based on discrimination due to race or national origin.

Manufacturer – Secured Dismissal of Discrimination Claim

Secured a dismissal of charge of racial discrimination and retaliation claims before the U.S. Equal Employment Opportunity Commission (EEOC) in favor of the manufacturer employer.

Appellate Division Reverses Civil Penalty against Landlord over ADA Accommodations

Herrick achieved a significant appellate victory on behalf of a national real estate development and management firm, securing a ruling from the Appellate Division, Second Department that reversed a New York City Commission on Human Rights order requiring the client to pay a $185,000 fine for denying a tenant's request to construct a handicapped-accessible entrance to her Queens apartment. In its ruling, the court wrote that the record lacked "substantial evidence" to contradict our client’s claim that installing an accessible entrance was not structurally feasible. The decision was the culmination of a nearly 6-year-long dispute in which we initially prevailed on the client’s behalf before an administrative law judge who held that the proposed accommodation sought by the tenant was not reasonable. The Commission, however, summarily rejected the ruling, and awarded $200,000 in damages and penalties. A Queens Supreme Court affirmed the agency’s decision but reduced the award of damages. On appeal, and after oral argument, the Second Department reversed the trial court’s decision, holding that the Commission’s determination of unlawful discrimination and award of damages should have been annulled in its entirety.

Medical Waste Disposal Company – Successful Defense of Unfair Labor Practice Claims

Represented a medical waste disposal company in a successful defense against unfair labor practice claims filed with the National Labor Relations Board involving allegations that the client refused to hire and wrongly discharged individuals based on their affiliation with a local union.

Health Care Agency – Secured Dismissal of Discrimination and Retaliation Claims

The New York State Division of Human Rights awarded a complete dismissal of all discrimination claims in favor of a home health care agency, finding that its former employee was terminated for legitimate business reasons and not based on pregnancy, race, religion, family status, sex and/or disability.

Electricity Supplier – TCPA Class Action Favorably Resolved

Negotiated a favorable settlement on behalf of a national electricity services provider to resolve a putative class action filed in New Jersey federal court by a plaintiff alleging violations of the Telephone Consumer Protection Act (TCPA).

Multiple Claims Dismissed in Shareholder Derivative Litigation

Secured a ruling in Kings County Supreme Court on behalf of a garment manufacturer and certain affiliated individuals and entities that dismissed several causes of action in a purported shareholder derivative suit. Among the claims asserted was the allegation that a competing entity had been used by certain defendants to usurp business opportunities, and that ownership of a company facility had been fraudulently transferred to a charitable trust and foundation. The court granted our motion to dismiss the claim for a constructive trust over either the alleged competing entity or the foundation; an unjust enrichment claim against the charitable trust and foundation defendants; and a claim of rescission of the alleged fraudulent transfer of the facility, which the court found was time-barred.

National Energy Supplier – Wage/Hour Class Action

Negotiated a favorable settlement on behalf of a national energy service company, avoiding protracted litigation in a wage and hour class action lawsuit alleging violations of federal and state labor laws.

Major League Baseball Franchise – Contract Dispute

Obtained summary judgment, including dismissal of all claims and recovery on counterclaim for breach of contract, on the district court level on behalf a Major League Baseball franchise in a contract dispute involving advertising and sponsorship rights, and protected judgment on appeal to the Second Circuit.

Limited Liability Company – Malpractice Claims

Representing a limited liability company in litigation with former counsel in a dispute involving allegations of malpractice in the preparation of a written operating agreement and the refinancing of a property located in Brooklyn. Action seeks to recover damages of over $11 million, plus interest and attorneys' fees.

Non-Profit Organization – Wrongful Termination and Discrimination Claims

Representing a New York City non-profit organization in a dispute with former employees claiming wrongful termination and discrimination based on age and sexual orientation.

Healthcare Services Provider – Alleged Violations of FLSA and Connecticut Wage and Hour Laws

Negotiated a favorable settlement on behalf of a leading provider of mental health services to resolve litigation filed in Connecticut federal court by a former staff psychologist alleging wrongful termination and failure to pay wages pursuant to the Fair Labor Standards Act and Connecticut Wage and Hour law.

Majority Shareholder – Successful Litigation for Control of Midtown Manhattan Property

Successful representation of a majority shareholder in a dispute with a minority stakeholder over control of a corporation whose sole asset was a valuable Manhattan property. Through litigation filed in New York state court, Herrick was able to secure the client control over a building located on prime midtown Manhattan real estate.

Residential Healthcare Facility – Wage/Hour Class Action

Represented a nursing and residential health care facility in a wage and hour collective and class action lawsuit alleging violations of federal and state labor laws. This litigation was settled on terms favorable to our client.

International Media Company – Workers’ Compensation Board Investigation

Represented an international media company in an investigation by the New York State Workers' Compensation Board.

Real Estate Management and Investment Firm – Loan Acquisition

Represented a boutique real estate management and investment company on the acquisition of certain loans secured by vacant land located in Upper Manhattan (on which construction is contemplated of an affordable housing apartment building). The loans had an aggregate original principal balance of nearly $5.5 million.

Network Technology Company — Wage/Hour Class Action

Successfully represented a network technology company in litigating and settling a putative class action lawsuit brought by network technicians based on an alleged failure to pay prevailing wages and benefits on publicly financed construction projects.

Title Insurance Company – Agent’s Fraud Imputed to Lender

Representation of a title insurance company against a lender whose agent committed a fraud that caused the loss of the insured mortgage. Our client successfully argued that since the agent acted on behalf of the bank, the fraud could be attributed to the bank and therefore fell under the policy’s exclusion for “acts of the insured.” The court’s ruling will have ramifications in the title insurance and mortgage lending industry since many sub-prime lenders relied upon unscrupulous agents to close their loans, and to the extent any frauds committed by those agents lead to a title loss, the lenders cannot look to the title insurers for indemnification.

International Investigation – Market Manipulation

Representation of a foreign citizen in connection with an indictment by the U.S. Attorney’s Office and an SEC investigation alleging market manipulation of multiple OTC securities in the U.S. markets via the internet.

Avery S. Mehlman, Partner