Kucker & Bruh, LLP: Legal Updates

Legal Updates

On October 6, 2010, in 333 East 43 Owners Corp. v. Boylan, L&T Index 54067/10 (NY Civ. Ct., N.Y. Co.), by So Ordered stipulation, the Housing Court awarded $50,000.00 in attorneys' fees to the client of Kucker & Bruh, LLP as the prevailing party in a lawsuit for unpaid cooperative maintenance and storage fees owed by the coop shareholder tenant.

On September 24, 2010, in 333 East 43 Owners Corp. v. Boylan, L&T Index 54067/10 (NY Civ. Ct., N.Y. Co.), Kucker & Bruh, LLP won an important decision for its client, the cooperative corporation (landlord) against the cooperative shareholder (tenant) for unpaid coop maintenance and storage fees. Housing Court Judge Michelle Schreiber held the petitioner coop corporation was the prevailing party in having received 100% of the relief it demanded in court - payment of all of the unpaid coop maintenance and storage fees, and the shareholder tenant did not prevail on any of her affirmative defenses or her $1 million counterclaim. The fact that the petitioner was able to obtain relief without resort to a judgment was deemed by the court not to alter the circumstances for purposes of determining a prevailing party (the shareholder capitulated when trial was to commence and signed a stipulation of settlement in which the coop corporation obtained all of the relief sought in its lawsuit), and, thus, the petitioner is entitled to an award of reasonable attorneys' fees as the prevailing party.

On December 22, 2009, in Three East Third Corp. v. 351 Bowery Assoc., LLC, et al., Index 101479/09 (Sup.Ct., N.Y. Co.), Justice Charles Ramos of the Commercial Division of the Supreme Court, New York County, ruled in favor of two independent motions which Kucker & Bruh, LLP had filed in a complex civil action in which K&B sought recovery for the substantial damages suffered by five clients due to negligent construction in three adjoining lots on which a 22-floor apartment building was built. The Court issued an Order which granted K&B's motion to amend one of the civil actions to include additional defendants, and issued another Order which granted K&B's motion to consolidate the three extant civil actions.

On June 25, 2009, in Danielle Friscia, DHCR Adm. Rev. Dckt. No. XB-420005-RT (administrative ruling), Kucker & Bruh, LLP was successful in persuading the New York State Division of Housing and Community Renewal (DHCR) to decline to apply the holding of the court decision in Thornton v. Baron. In Danielle Friscia, the DHCR ruled in favor of the landlord, and in doing so distinguished the court decision in Thornton v. Baron. The DHCR concluded that the "4 year look-back period" in rent overcharge cases was only extended in Thornton where the landlord admitted that fraudulent conduct occurred both prior to and during the 4 year period, and that expansion of that 4 year period will not occur where the landlord disputes that any such fraud occurred and where there is no evidence of fraud in the record). Comment: This is a significant limitation on the impact of the Thornton decision, which until now has been cited on a near-continual basis by tenants in an effort to bypass the 4-year rule in rent overcharge matters.

On May 12, 2009, in Beljakovic v Melohn Properties, Inc., 1:04-cv-02694-RJH-GWG (S.D.N.Y. May 12, 2009) (Holwell, J.), Kucker & Bruh, LLP won a momentous victory for the defendant-employer, establishing that it is entitled to an Order which compels the plaintiff-employee to arbitrate all of his discrimination claims alleged under the ADEA statute in his federal court complaint. K&B succeeded on a renewed motion pursuant to 9 U.S.C. §§ 3 and 4, and the LMRA statute, in persuading the federal court to enforce the arbitration clause in the CBA (collective bargaining agreement) executed by the SEIU 32BJ union for the plaintiff-employee and by the Real Estate Advisory Board (RAB) for the defendant-employer. The federal court held that any statutory discrimination claim must be arbitrated even though the employee had not personally signed the agreement which contains the choice of forum clause. K&B also demonstrated that the possible exception which is discussed by the Supreme Court of the United States in 14 Penn Plaza LLC v. Pyett, 129 S. Ct. 1456, 173 L. Ed. 2d 398 (April 1, 2009) (Pyett) is not applicable to the instant action. This decision should be of tremendous value in helping protect the rights of employers to utilize arbitration as the only forum for adjudicating any federal discrimination claims, or other individual statutory claims, alleged by an employee.

On April 17, 2008, in Beljakovic v Melohn Properties, Inc., 1:04-cv-02694-RJH-GWG (S.D.N.Y.) (Holwell, J.), Kucker & Bruh, LLP won an important interim result for the defendant-employer. K&B succeeded on its motion for an order pursuant to 9 U.S.C. §3 which stays the action until after the Supreme Court of the United States renders its decision in a similar case, 14 Penn Plaza LLC v. Pyett, 129 S. Ct. 1456, 173 L. Ed. 2d 398 (April 1, 2009), for which certiorari was granted on February 19, 2008. K&B argued that the Supreme Court, in Pyett, may reject Rogers and overturn the Second Circuit's affirmance of the district court's denial of a motion to compel arbitration that was rendered in circumstances similar to the circumstances in the instant action -- in which the district court, based on Rogers, initially denied K&B's motion to compel arbitration. The district court agreed with K&B that, if the Supreme Court reverses the Second Circuit in Pyett, the same result must be imposed in Beljakovic.

On August 21, 2007, in Beljakovic v Melohn Properties, Inc., 06-cv-4760 (2nd Cir. 2007), the Second Circuit dismissed the defendant-employer's appeal for purported lack of appellate jurisdiction in the absence of a final order. The Court in error ignored K&B's compelling arguments: (i) that the Beljakovic appeal was from an order by the district court which denied a motion to compel arbitration pursuant to 9 U.S.C. §§ 3 and 4, and denied a stay of the court action pending the arbitration; thus, jurisdiction for an immediate appeal is provided by the Federal Arbitration Act (9 U.S.C. §1, et seq.), specifically 9 U.S.C. § 16(a)(1)(A) and (B), and by 28 U.S.C. §1292(a)(1); and (ii) that, on the very same day that the Second Circuit, in Beljakovic, dismissed the appeal for purported lack of a final order, the Second Circuit, in the procedurally indistinguishable Pyett case, already had entertained appellate briefs and was on the eve of hearing oral argument.

On February 1, 2007, in Friscia v Lem Lee 13th Limited Partnership, 2007 N.Y. App. Div. LEXIS 1046 (1st Dep't 2007), Kucker & Bruh, LLP won a significant victory for a residential landlord, by establishing that the DHCR has primary jurisdiction over rent overcharge complaints and a stabilized tenant cannot circumvent the agency's jurisdiction by commencing a court proceeding. The tenant had attempted to avoid the 4-year statute of limitations on rent overcharge complaints filed with the DHCR, by commencing a court action for an order "declaring" that he was paying a rent overcharge based on evidence going back beyond four years. Clearly hoping the Court would apply less stringent rules than those applied by the DHCR, the tenant argued that the Court should determine his overcharge complaint. K&B moved to dismiss the action, and the motion was successful. The Appellate Division affirmed. This decision is extremely important to owners of rent stabilized and rent controlled apartments as it requires that a tenant claiming a rent overcharge must first file a complaint with the DHCR. It has been our experience that tenants' attorneys have been advising tenants to commence court proceedings, instead of filing overcharge complaints with the DHCR, hoping that individual judges will not follow established DHCR rules and precedent, especially with respect to the 4-year statute of limitations. This precedent may convince other judges before whom a rent overcharge complaint is raised to dismiss those claims as well.

On December 13, 2006, in Herma Stribula v. 210 E.86th St. Corp. (Sup.Ct. N.Y.Co. Index No. 118478/06 [York, J.]), the Supreme Court of the State of New York, County of New York, rendered a significant decision which protected a property owner from a trespass on his land that imperiled the value of his residential apartment building, and exposed the owner to potential future lawsuits by tenants and passersby seeking catastrophic damages; based on the legal papers prepared by Kucker & Bruh, LLP, which were submitted by an expedited motion known as an "order to show cause seeking emergency relief," the Supreme Court granted the temporary restraining order ("TRO") requested by K&B which stopped all work being performed by Consolidated Edison and its subcontractors in their planned installation of two high-voltage electrical transformers into the sidewalk abutting the residential apartment building owned by K&B's client. Kucker & Bruh, LLP was successful in demonstrating that justice demands the property owner's rights must be protected from an egregious trespass even if the defendant is a public utility. K&B's victory in obtaining the TRO is a substantial step toward the recognition of beneficial rights arising from the reciprocal burden placed on landlords concerning sidewalk responsibility.

On September 26, 2006, in Beljakovic v Melohn Properties, Inc., 2006 U.S. Dist. LEXIS 70480 (S.D.N.Y.) (Holwell, J.), the federal district court relied on the Second Circuit decision in Rogers v. New York University, 220 F.3d 73, 75 (2d Cir. 2000), to deny K&B's motion pursuant to both the Federal Arbitration Act (9 U.S.C. §1, et seq.), specifically 9 U.S.C. §§ 3 and 4, and the Labor Management Relations Act of 1947, as amended (LMRA) (29 U.S.C. §141, et seq.), on behalf of a company that employs doormen, porters and a superintendent in a large residential apartment building, for an Order which compels the plaintiff-employee to arbitrate his federal age discrimination claims, alleged under the ADEA statute in his federal court complaint. (The Second Circuit, in Rogers, held that a union in a collective bargaining agreement (CBA) may not waive the individual employee's right to file a federal statutory claim for discrimination in district court; however, the Second Circuit failed to follow precedent of the Supreme Court of the United States which favors the enforcement of a CBA negotiated pursuant to the LMRA statute, and enforcement of arbitration clauses.)

On August 17, 2006, the New York State Division of Housing and Community Renewal, in Matter of 7005 Shore Road, LLC, DHCR Adm. Rev. Dckt. No. UE-210052-RO, issued an important administrative law ruling in favor of landlords, by determining the landlord could not be assessed with treble damages because it reduced the tenant's rent pending the outcome of an overcharge proceeding.

On May 24, 2006, in South Pierre Associates v. Meyers, Civ.Ct. N.Y.Co. Index No. 300023 TSN 2006, 2006 NY Slip Op 26208, 2006 N.Y.Misc. LEXIS 1278, [Hagler, J.] the New York court issued a second important decision which should be of great interest to attorneys and non-attorneys. Earlier, the court awarded liability in plaintiffs' favor on all five causes of action, including fraud, breach of the employee's duties of loyalty to his employer, and negligence (the first decision, on Jan. 13, 2006, is discussed below). Subsequently, defendant attempted to obtain dismissal of the action by filing a CPLR 3212 motion which argued that a final judgment was not possible because allegedly there were no damages to support the prior liability award. On May 24, the trial court upheld Kucker & Bruh, LLP's arguments in response and denied defendant's motion in its entirety. The court ruled that, as a disloyal employee, defendant may be "subject to severe penalties such as the forfeiture of all compensation plaintiffs paid for the period of his disloyalty . . . even if plaintiffs cannot prove any damage or loss arising out of Meyers' admitted culpable conduct." In practical terms, this would result in the employee's disgorgement of the many thousands of dollars in wages he had accepted while acting illicitly in violation of his duties of loyalty to the employers paying those wages. The court also ruled that an award of punitive damages may be available against this employee based on the breach of fiduciary duty claim.

On March 10, 2006, in Rolling Realty LLC v. Dubinsky, Civ.Ct. N.Y.Co., Index No. L&T 98864/05 (Schneider, J.), the trial court issued an important decision which recognized limits on the use of an alleged warranty of habitability as an excuse for the nonpayment of rent. Kucker & Bruh, LLP prevailed at trial and defeated the respondent-tenant's warranty of habitability defense which alleged the landlord had placed noisy tenants in an adjacent apartment and encouraged them to make intolerable noise in an effort to drive the respondent from his apartment. The respondent-tenant was ordered to pay the entire balance of unpaid rent, plus the landlord's attorneys' fees and costs.

On January 13, 2006, in South Pierre Associates v. Meyers, Sup.Ct. N.Y.Co., Index No. 105682/05 [DeGrasse, J.], the New York Supreme Court rendered a critical decision on the issue of summary judgment in an action based on causes of action including fraud, breach of the employee's duties of loyalty to his employer and negligence. Kucker & Bruh, LLP had filed a pre-discovery motion for summary judgment in which the firm argued this particular action warranted the imposition of a partial final award of liability in favor of the plaintiffs on all five causes of action alleged in the complaint (including fraud, breach of fiduciary duty, breach of employment, breach of agent-principal relationship and negligence.] K&B argued and the court agreed that summary judgment was appropriate, even on the fraud claim, based on two affidavits by defendant in another action, in which he [inadvertently] admitted all of the facts necessary to establish his liability to plaintiffs by having acted contrary to the interests of his employers. Defendant's efforts to recant his prior sworn statements in the other action were unsuccessful. The trial court transferred the case to the Civil Court for an assessment of damages.

On July 18, 2005, in Rego Estates v. DHCR, 20 AD3d 539, 799 N.Y.S.2d 539 (2nd Dep't 2005), the Appellate Division rendered a significant decision which held the DHCR erred in denying an owner's request for establishing a higher rent retroactively, and the error must be corrected by the administrative agency.

On May 24, 2005, in 4 Third Avenue Leasehold, LLC v. Permanent Mission of the United Arab Emirates, 133 Fed.Appx. 768, 2005 U.S. App. LEXIS 9494 (2nd Cir. 2005), the U.S. Court of Appeals rendered an important decision which validated the enforcement of liquidated damages clauses in private contracts. Kucker & Bruh, LLP was victorious in convincing the Second Circuit to overturn the district court's incorrect ruling which had failed to enforce the liquidated damages clause in a commercial lease agreement. The appellate court ruled this liquidated damages provision was not an unenforceable penalty and had not been waived.

On April 18, 2005, in In re 127 John Street Associates, 2005 U.S.Dist.LEXIS 6729; 54 Collier Bankr. Cas. 2d (MB) (S.D.N.Y.), the U.S. District Court issued a critical ruling. The court decided the entity which had purchased a commercial building in Manhattan could not appeal from an interim order which required the purchaser to deposit $6.2 million in escrow for the benefit of former commercial tenants who claimed a substantial share of the prior real estate tax refund. In the related earlier ruling, which was not reported (In re 127 John Street Associates, 93-B-46171 (CB) (Bankr. S.D.N.Y., Nov.12, 2004)), the petition of Kucker & Bruh, LLP for the interim order was granted by the bankruptcy court. At K&B's urging, the bankruptcy court reversed its own prior orders which had been predicated on inaccurate fact representations by the purchaser of property, and the court reopened the chapter 11 case to permit the former tenants to claim a share of the $6.2 million real estate tax refund which had been withheld by the purchaser of property. In addition, the purchaser was ordered to provide explicit notice to the former tenants; the court found the first notice by the purchaser was severely inadequate.

On January 25, 2005, in Schoberle v. DHCR and 235 West 71st Street LLC, 14 A.D.3d 438, 788 N.Y.S.2d 361 (1st Dep't 2005), the Appellate Division granted the petition of Kucker & Bruh, LLP, and retroactively applied the "de minimus" rule to dismiss a tenant's complaint against the landlord (K&B's client) for alleged removal of a storage area.

On September 10, 2004, in Water Street Leasehold LLC v. Deloitte & Touche, LLP (Sup.Ct., N.Y. Co.), in response to a motion for reargument by the defendant, the trial court affirmed its prior ruling in favor of the plaintiff represented by K&B, concerning accountant third party liability (see April 19, 2004 decision below).

On April 19, 2004, in Water Street Leasehold LLC v. Deloitte & Touche, LLP, 2004 NY Slip Op 51260U; 5 Misc. 3d 1008A; 798 N.Y.S.2d 714; 2004 N.Y. Misc. LEXIS 1896 (Sup.Ct., N.Y. Co.) (Lowe, III, J.), the trial court upheld a complex civil complaint which alleged the defendant accountants had third party liability for fraud, negligence and gross negligence in having certified as accurate the financial statements of insurance company which became insolvent and failed to pay a $1.1 million debt under a real estate lease, and also alleged the defendant accountants of gross errors in having failed to make certain the insurance company maintained adequate reserves to cover the policies of insurance which had been issued, rev'd on other grounds, 796 N.Y.S.2d 598 (1st Dep't June 14, 2005).

On March 22, 2004, in Sted Tenants Owners Corp v. Chumpitaz, et al., 5 A.D.3d 663, 774 N.Y.S.2d 718 (2nd Dep't 2004), the Appellate Division issued a significant ruling which upheld the integrity of motion practice under the CPLR. The appellate court unanimously reversed the trial court's decision which had granted summary judgment in favor of a plaintiff property owner because its papers in support of the motion had a fatal flaw -- they failed to include copies of the pleadings.

On December 3, 2003, in the Matter of Sabrina Equities Corp., DHCR Adm. Rev. Dckt. No. QH-410014-RP, an administrative proceeding before the New York State Division of Housing and Community Renewal (DHCR), a notable administrative ruling was rendered in favor of the landlord, represented by Kucker & Bruh, LLP. In the tenant's fair market rent appeal, the DHCR initially ruled for the tenant and set the rent without information concerning comparable apartments. The landlord was ordered to refund $46,000.00. In appealing, the landlord argued the DHCR's new comparability rules should apply. The DHCR agreed, applied comparability data, and reduced the refund to only $4,000.00. The DHCR agreed, because the landlord had purchased the building at judicial sale and did not obtain complete records, there was good cause for any prior failure to submit comparability data.

On September 3, 2003, in 325 Third Street LLC v. Maldonado, Index No. L&T 077865/03 (Civ. Ct. Kings Co., September 3, 2003) (Marton, J.H.C.), at the request of Kucker & Bruh, LLP, the court denied Respondent's motion to vacate the previously executed "so ordered" stipulation of settlement and the resultant final judgment and held that a government subsidy approval was not a basis for relief, especially where the relief was less than the amount owed.

On August 18, 2003, in Board of Managers of the Kingsley Condominium v. Villinvestment A.V.V. and Feldman, Index No. 603944/02 (Sup. Ct., New York Co., August 18, 2003) (Tolub, J.), based on a motion filed by Kucker & Bruh, LLP ("K&B") the court rendered a significant decision which limits a condominium board's protection under the "business judgment" rule. The motion filed by K&B sought summary judgment on defendants' behalf, enabling them to proceed with a proposed condominium unit sale. Among other things, the court held that the plaintiff's treatment of a proposed offer as bona fide precluded plaintiff from subsequently asserting otherwise. An offer may not be bona fide for some purposes but not for other purposes. Court also held plaintiff was required in its motion papers to include any alleged evidence that proposed purchase price was not bona fide. Evidence presented by the plaintiff for the first time in reply papers on a cross-motion could not be considered for either defendants' motion or plaintiffs' cross-motion because defendants had no opportunity to respond to the evidence. The court also held that the Board received notice when its managing agent received notice. While the business judgment rule may protect a Condominium Board in the event of a challenge to its determination of whether or not to exercise a right of first refusal, a failure to act within the time limits set forth in the by-laws has nothing to do with business judgment. Equity will intervene in the event that the party who failed to act will suffer a forfeiture if not permitted to exercise its right of first refusal. However, cases in which such forfeiture is found generally involve parties that have invested considerable sums of money in renovating the subject premises, which they will lose if they cannot exercise the option that they had, whether it was to renew the lease or to purchase the property.]

On June 20, 2003, in 328 West 86th Assoc. v. Wakstein, Index No. L&T 081652/01 (Civ. Ct. New York Co., June 20, 2003) (Lebovits, J.H.C.), an important decision was rendered which recognizes that a party's right to attend a deposition is not absolute. Based on Kucker & Bruh, LLP's motion, a party was excluded from attending a deposition. The court held, because CPLR §3103(a) obligated the court to prevent one party from being disadvantaged by the other's potentially collusive testimony, the court may exclude individual respondents from attending pretrial depositions of other Respondents when the Respondents' interests were virtually identical and each Respondent was represented by the same attorney.]

On May 2, 2003, in 9394 LLC, et al. v. Kehler, et al., Supreme Court, Westchester County, Index No. 09307/2002 (Nastasi, J.), the New York state court issued a significant decision concerning pretrial disclosure obligations, and rejected a defendants' arguments that a "consultant" is immune from being deposed. Based on an application which Kucker & Bruh, LLP ("K&B") made on behalf of plaintiffs, an order was rendered which directed defendants to comply with plaintiffs' demands for disclosure, including document demands, and determined that plaintiffs were entitled to depose a non-party witness whom defendants characterized as a "consultant." Plaintiffs' underlying civil complaint alleged that defendants unlawfully constructed a large solid concrete block in a tidal wetlands area of the Long Island Sound immediately adjacent to plaintiffs' residential property, which violated plaintiffs' riparian rights and caused ecological damage to plaintiffs' property. In ruling in favor of plaintiffs' motion to compel disclosure concerning defendants' so-called "consultant," the Court agreed with K&B that the documents and reports which defendants claimed were prepared in anticipation of litigation by their purported consultant at maximum were only conditionally privileged, and the burden of proving that such material was prepared solely in anticipation of litigation rested on defendants as the party asserting the privilege and challenging discovery. The Court also agreed with K&B that defendants' counsel's affirmation, replete with conclusory assertions, was insufficient to establish the requested documents were immune from disclosure.

On April 11, 2003, in 320 West 13th Realty LLC v. Avanade Inc., 03 CV 1579 (JSR) (S.D.N.Y.), a federal district court rendered an important decision concerning motions to remand pursuant to 28 U.S.C. §1447(c), the absence of complete diversity among the parties and the avoidance of duplicative litigation. The civil action began as a multi-million dollar commercial dispute between two plaintiffs, a New York limited liability company and a New York corporation, both represented by Kucker & Bruh, LLP ("K&B"), against defendant Avanade Inc., a Washington state corporation. The U.S. District Court for the Southern District of New York (Rakoff, J.), ruled that the action must be returned to New York state court, as requested by K&B's 28 U.S.C. §1447(c) motion for remand. In ruling for plaintiffs, the court agreed with K&B that Avanade's joinder of a third-party defendant, Wolf Shevack, Inc., a New York corporation, under circumstances which compelled plaintiffs to raise their own third-party claims against WSI, made the third-party defendant a necessary party under Fed. Rule Civ. P. 19. Because the federal court did not have diversity jurisdiction to entertain plaintiffs' third-party claims against WSI, the only court in which all of the parties' claims and counterclaims could be heard was the New York state court. A remand order was issued, returning the action to state court.

On April 9, 2003, in a New York state court proceeding, In the Matter of the Application of Lipper Holdings, LLC, Supreme Court, New York County, Index No. 603653/2002, a notable interim order was rendered in which the state court approved the use of a methodology for distributing plan assets which historically revalued each investor's capital account month by month. The petitioner had initiated the action seeking an order approving a proposed distribution of assets in connection with the winding up of certain limited partnerships. Justice Karla Moskowitz, of the Commercial Part of the Supreme Court which hears complex civil actions, ruled in favor of Kucker & Bruh, LLP's client and other investors. By Her Honor's interim order, the Court approved the suggested asset distribution methodology because it was consistent with proper accounting principles and limited partnership plan documents. The Court rejected the arguments of certain investors who attempted to limit their own loss by forcing the entire revaluation of plan assets (a $400 million adjustment) to be applied in one month only, the final month in which winding up was initiated. Over petitioner's objection, the court ruled that any negative balances in an investor's capital accounts must be attributed to the general partner. Based on allegations that he had engaged in misconduct, the general partner was replaced as liquidating trustee.

On March 18, 2003, in Calka v. Chuu, 2003 U.S. Dist. Lexis 4090 (S.D.N.Y. 2003), the federal court issued an important decision under federal bankruptcy law. The court held that an adversary proceeding brought by a debtor tenant to recover funds paid to an apartment owner should be dismissed for lack of jurisdiction, as it did not involve a core bankruptcy matter, and a recovery, if any, would not benefit debtor's bankruptcy estate.

On March 14, 2003, in 9394 LLC et al. v. Farris, et al., 304 A.D.2d 804 (2nd Dep't 2003), the Appellate Division of the New York Supreme Court protected the plaintiffs' critical rights to obtain the notice required by CPLR 3211(c) before a motion to dismiss may be converted to a summary judgment motion. The civil complaint which Kucker & Bruh, LLP ("K&B") filed on plaintiffs' behalf alleged more than a million dollars in damages caused by defendants' unlawful utilization of residential premises for business uses. In error the trial court (Lefkowitz, J.) dismissed plaintiffs' damages claims. K&B successfully appealed and obtained reversal by the Appellate Division, Second Department. The appellate court agreed with K&B that the trial court had improvidently converted defendants' motion to dismiss into a motion for summary judgment without providing the notice required by CPLR 3211(c). The Appellate Division further held that, based on the facts as alleged, the complaint was legally sufficient to withstand a motion to dismiss for alleged failure to state a cause of action, and accordingly the complaint was reinstated. Plaintiffs could proceed with their damages claims and certain requests for injunctive relief.

On February 20, 2003, in R Glad House Holdings, LLC v. Lipper Holdings, LLC, 03 CV 1144 (RO) (S.D.N.Y.), an important federal securities class action was filed against Lipper Holdings, LLC, Kenneth Lipper, Abraham Biderman and Edward Strafaci, in the United States District Court for the Southern District of New York, by plaintiffs' counsel Kucker & Bruh, LLP ("K&B"), and New Jersey co-counsel, Cohn Lifland Pearlman Herrmann & Knopf LLP. In the civil complaint, plaintiffs allege that defendants substantially overvalued the fund assets, by approximately 40%, collected excessive performance based management fees, distributed deceptive written materials, and artificially inflated the value of fund assets in representing and reporting the performance, profits and value of the assets to investors from 1995 through 2001, which were violations of Section 12(2) of the Securities Act of 1933, Section 20(a) of the Securities Exchange Act of 1934, Section 10(b) of the Securities Exchange Act of 1934, SEC Rule 10b-5 and state securities laws.

On January 20, 2003, in Spanierman Gallery Profit Sharing Plan v. Merritt, 2003 U.S. Dist. Lexis 1444 (S.D.N.Y.), a critical ruling on the issues of jurisdiction, comity and issue preclusion was made. Based on Kucker & Bruh, LLP's petition, the federal district court refused to bar a plaintiff art gallery from continuing to prosecute its legal claims despite a judgment in favor of the federal defendant against another party which was rendered in a state court action in which the plaintiff art gallery was not a participant. K&B defeated the defendant's attempts to impose issue preclusion on the plaintiff.

On May 2, 2002, in Malafis et al. v. Shannon, Index No. L&T 101887/01 (Civ. Ct. Kings Co., May 2, 2002) (Marton, J.H.C.), a notable ruling was issued recognizing the right of an owner to recover a rent stabilized apartment for use by his son. Kucker & Bruh, LLP represented the landlord/owner in this owner-occupancy summary holdover case. Ultimately, the court held that the landlord had proved his prima facie case and owners were entitled to possession of rent stabilized apartment unit for use by owners' son. The court determined the landlord established good faith since eviction was sought with honest intention and desire to gain possession of the subject premises for use by their son. The availability of other apartments renting for higher sums did not establish lack of good faith. Court also explained that owner was not required to occupy an apartment that was not controlled and thus diminish its income.

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