Representative Cases

The opinion of the appellate court in each of the following cases can be found on the “Blog” page of this website in the post entitled “Representative Cases With Appellate Court Opinions.”

Cavayero v Cavayero, 184 AD3d 801 [2d Dept 2020]:

In this post-judgment child support enforcement proceeding, the lower court denied the former wife’s motion for a judgment for the arrears on the ground that, by her conduct, she had waived her right to the payments. However, as a result of the appeal that I filed on her behalf, the Appellate Division held that the motion papers presented issues of fact, and it remitted the matter for a hearing.

Matter of Feuerstein, 147 AD3d 688 [1st Dept 2017]:

As a result of the appeal that I filed on behalf of the testamentary trustee, the Appellate Division decided that it was an error for the Surrogates Court to require that a bond be posted and that an annual accounting must be filed, since they were not required under the terms of the Will.  In addition, it was ruled that the Surrogates Court should not have considered the trust declaration which was attached to a prior motion that had been withdrawn.

Albert v Albert, 126 AD3d 921 [2d Dept 2015]:

In this post-judgment, Supreme Court, child support enforcement proceeding, the court-appointed referee acted in excess of the authority which was granted to him in the order of reference when he issued an order which granted the former wife a stay of enforcement, and removed a proceeding from the Family Court to the Supreme Court.  As a result of the appeal that I filed on behalf of the former husband, the Appellate Division reversed and vacated those parts of the referee’s order.

Farrell Forwarding v Alison Transport, 119 AD3d 891 [2d Dept 2014]:

In this contract action, the plaintiff’s attorney failed to appear for a status conference, and the lower court dismissed the action pursuant to 22 NYCRR 202.27(b).  As a result of the appeal that I filed on behalf of the plaintiff, the Appellate Division modified the Order to state that the dismissal was “without prejudice,” since it was not a determination on the merits.  This allowed the plaintiff’s attorneys to commence a new action on its behalf pursuant to the saving provisions of CPLR 205(a), even though the 6-year statutory deadline for a contract action had passed.

Von Fricken v Schaefer, 118 AD3d 869 [2d Dept 2014]:

In this case, my client had given a hand-written “I.O.U.” to her mother, in which she promised to repay a personal loan with the proceeds from a pending lawsuit.  After the mother’s death, the executor of the estate made a motion for accelerated judgment pursuant to CPLR 3213 based upon the “I.O.U.,” and the lower court granted that motion.  However, the Appellate Division decided that this was improper, because the “I.O.U.” did not meet the statutory definition of “an instrument for the payment of money only.”

Gampero v Mathai, 105 AD3d 995 [2d Dept 2013]:

In this contract action, involving the purchase of a business, the plaintiff purchaser alleged that it subsequently discovered that the business had debts which the defendant seller had not disclosed.  The plaintiff sought indemnification from the seller pursuant to the contract, and made a motion for summary judgment, which was granted.  On behalf of the defendant seller of the business, I filed an appeal.  It was successfully argued that the plaintiff was not entitled to indemnification because his moving papers did not show that he had paid the debts for which he was demanding reimbursement from the defendant.

Albert v Albert, 60 AD3d 979 [2d Dept 2009], lv denied 13 NY3d 701:

In this case, the former husband was awarded custody of the two children of the marriage, but the former wife appealed. I defended the former husband against the appeal, and the Appellate Division affirmed the divorce court’s custody determination, finding that it had a sound and substantial basis in the record.

Siskind v Schael, 62 AD3d 805 [2d Dept 2009], lv to app dismissed 13 NY3d 833, lv denied 14 NY3d 708:

In this contested custody proceeding, the father was successful in having the Attorney for the Child  removed from further representing the child.  He then appealed from the order which granted the AFC a counsel fee award for her past services.  I defended the AFC against the appeal, and her counsel fee  award was affirmed.

Rizzuti v Laucella, 57 AD3d 755 [2d Dept 2008]:

Pre-trial discovery demands in this case were ignored by the plaintiff. Defendant moved for an order  compelling the plaintiff to respond, or in the alternative, dismissing the complaint.  The Court issued a  conditional order of dismissal.  The plaintiff still failed to comply and the complaint was dismissed. The Plaintiff appealed. I represented the defendant on the appeal, and the order of dismissal was affirmed.

Grasso v Grasso, 47 AD3d 762 [2d Dept 2008]:

In this divorce action, I represented the former husband on his appeal.  The Appellate Division decided that some of the payments made by the former husband under the pendente lite order should have been credited toward his obligations with respect to child support and spousal maintenance.  It also held that he should not have been held responsible for 100% of the credit card debt in the wife’s name.

Pedro v Walker, 46 AD3d 789 [2d Dept 2007]:

In this legal malpractice action, the lower court granted the defendant attorney’s motion for summary judgment and dismissed the complaint.  I filed an appeal on behalf of his former client, the plaintiff.  The Appellate Division agreed with my contention that, contrary to what had been argued by the defendant, his moving papers did not establish as a matter of law that the plaintiff would be unable to prove malpractice.  The order of dismissal was reversed and the complaint was reinstated.

People v Elpenord, 24 AD3d 465 [2d Dept 2005]:

In this criminal case, a handgun in the defendant’s car was purportedly found during an “inventory search” by police officers.  In the lower court, the defendant’s motion to suppress the handgun was denied.  As a result of an appeal which I filed on behalf of the defendant, the Appellate Division decided that the handgun should have been suppressed because the testimony of the officers at the suppression hearing did not establish that the proper procedure for a valid inventory search had been followed.

Matter of Word of Life Ministries v Nassau County, 3 NY3d 455 [2005]:

The petitioner in this article 78 proceeding was a church with a large congregation, which was served by several full-time pastors.  Each of the pastors lived in a parsonage for which a religious exemption from real property taxes had been claimed for several years.  There came a point in time, however, when both the Village and the County took the position that it would only allow the exemption for the parsonage of the “senior pastor.” That position was rejected by the Supreme Court.  The Village appealed.  I defended the church against the appeal, along with co-counsel, and the Appellate Division rejected the position that was argued by the Village.  The Village then appealed to the Court of Appeals, which also rejected its arguments.  The Court of Appeals accepted our argument that the religious exemption applied to the residence of each “full-time officiating clergy.” The decision applies to the clergy of any religion.

Gallagher v Samples, 6 AD3d 659 [2d Dept 2004]:

In this auto accident case, in which I represented the plaintiff on her appeal, the Appellate Division agreed that the amounts that were awarded by the jury for the plaintiff’s future pain and suffering, and for her future medical expenses was inadequate; and it remitted the case for a new trial on those damages.

Luisi v Luisi, 6 AD3d 398 [2d Dept 2004]:

In this divorce action, the lower court determined that the child support provisions of the stipulation of settlement were invalid; and so it proceeded to make its own determination of the child support obligation.  On the appeal, in which I represented the former husband, it was argued that the lower Court made several errors in determing the child support obligation, and the Appellate Division agreed.  It remitted the case for a new determination.

Cavaluzzi v Beyers, 306 AD2d 429 [2d Dept 2003]:

In this dental malpractice case, involving a root canal procedure, the complaint was dismissed by the lower court based upon the statute of limitations.  A motion to renew and reargue was also denied. On behalf of the plaintiff patient, I appealed from the order of dismissal, and from the denial of renewal.  The Appellate Division agreed that the plaintiff’s motion papers raised a question of fact as to the applicability of the “foreign object” exception, because an affidavit from the plaintiffs ear, nose and throat doctor stated that he had observed a “metallic” object in the plaintiff’s sinus which appeared to be a piece of a broken root canal instrument.  If the “foreign object” exception was found to be applicable, it would mean that the action was timely, because it had been commenced within one year of the discovery of that object.  Thus, the order of dismissal was reversed, and the plaintiff’s complaint was reinstated.

Ellis v Griffin, 308 AD2d 449 [2d Dept 2003], lv denied 2 NY3d 704 [2004]:

Paternity of a child was acknowledged in this case by the appellant, and for the next three years he paid child support and exercised parenting time, at times fulfilling the role of primary caretaker.  Then another man came forwarded, with whom the mother had also had an intimate relationship, and he filed a petition asking that he be adjudicated to be the father. Court-ordered blood tests revealed that the second man was the biological father of the child; and the Family Court granted his paternity petition.  I represented the first man on his appeal.  The Appellate Division held that the Family Court should have applied the “doctrine of equitable estoppel” and denied the second man’s petition.

Rizzuto v Getty Petroleum Corp., 289 AD2d 217 [2d Dept 2001]:

Gasoline leaking underground from a nearby gas station contaminated the ground beneath the plaintiff’s residence. Liability was conceded by Getty, and the only issue at trial was the amount of damages. The  defendant argued in its closing that there were no damages because plaintiff had not satisfactorily proven a dimunition in the property’s monetary value; but the jury awarded $509,000.  Getty appealed, and I defended the homeowner.  The jury’s damage award was affirmed.

Costello v Kaier, 278 AD2d 50 [1st Dept 2000]:

In this case, I represented the attorney on his appeal from an order of the lower court which ruled that his claim for attorney fees from his former client was barred by his admission that he did not have time records.  The Appellate Division remitted the matter for a hearing at which the attorney would have the opportunity to demonstrate his entitlement to fees.

Advanced Conservation Sys. v Elissa & Scott Realty Corp., 268 AD2d 543 [2d Dept 2000]:

In this contract action, in which I represented the defendant on the appeal, it was held that the evidence adduced at trial did not support the finding in regard to the cross-claim by the other defendant, that there was an oral agreement for it to render construction management services.

LoMacchio v LoMacchio, 247 AD2d 539 [2d Dept 1998]:

In this post-judgment child support proceeding, in which I defended the former wife against the appeal by the former husband, the Appellate Division affirmed the order which granted the wife an upward modification of the husband’s child support obligation.

Matter of Popper, 242 AD2d 297 [2d Dept 1997]:

In this guardianship proceeding, the son of the incapacitated person filed objections to the accounting that was filed by the guardian.  The court-appointed referee accepted the accounting without conducting a hearing on the objections, and the lower court confirmed the referee’s report, and granted a $3,000 counsel fee to the guardian’s attorney, without stating the basis for same.  I represented the objectant on appeal.  The Appellate Division agreed with my argument that the objections raised material issues of fact, which required that the court-appointed referee to conduct a hearing.  The Appellate Division also agreed that it was error for the lower court to award a $3,000 fee to the guardian’s attorney, without stating the basis.  The case was remitted for a hearing with respect to the objections and the attorney fee.

Sandra C. v Christian D., 244 AD2d 551 [2d Dept 1997]:

In this custody proceeding, the lower court awarded custody of the child to the father.  On the appeal by the mother, I represented the father.  The Appellate Division affirmed the order which had granted custody to the father, finding the the record supported the lower court’s finding that the mother had made false abuse allegations against the father and had shown that she was unwilling to foster a relationship between him and the child.

Gago v Acevedo, 214 AD2d 565 [2d Dept 1995], lv denied 86 NY2d 706 [1995]:

In this custody proceeding, the lower court awarded custody of the child to the father.  It found that the mother had made false abuse allegations and had engaged in a course of conduct intended to alienate the child from the father.  On the appeal by the mother, I defended the father, and the award of custody to the father was affirmed.

Rizzo v Lincoln Town Diner Corp., 215 AD2d 546 [2d Dept 1995]:

In this “slip and fall” case, the lower court granted summary judgment to the defendant Diner and dismissed the complaint.  It had accepted the Diner’s contention that the plaintiff had slipped on “snow” in the parking lot.  On the appeal, in which I represented the plaintiff, it was argued that the plaintiff’s opposing papers established that it had not snowed, and that what was on the ground where the fall occurred was actually crushed ice from an unrefrigerated truck making a delivery of fish, which one of the Diner employees had helped to unload.  Thus, a jury could find that the Diner had created the hazard, and/or had notice of it.  The Appellate Division reversed the order of dismissal and reinstated the complaint.

Frohman v Frohman, 203 AD2d 420 [2d Dept 1994]:

In this case, sanctions were imposed upon the non-party law firm without notice or a hearing.  I filed an appeal on its behalf.  The order imposing sanctions was reversed and the case was remitted for a hearing.

Towpash v Towpash, 119 AD2d 567 [2d Dept 1986]:

This partition action was brought by the former husband based upon a provision in the parties’ divorce judgment which stated that the house would be sold when the parties’ youngest child reached the age of 18.  The former wife opposed the former husband’s motion for summary judgment, arguing that the parties had reached a settlement.  She included in her opposing papers a purported stipulation of settlement that had only been signed by her.  The former husband’s motion was denied.  I appealed on his behalf, and the Appellate Division reversed.  It held that the purported stipulation, signed only by the wife, was not enforceable.

Moore v Moore, 111 AD2d 375 [2d Dept 1985]:

In this post-judgment child support enforcement proceeding, the former wife was granted a judgment for arrears in child support.  On the appeal by the former husband, I defended the former wife, and the judgment in her favor was affirmed.  The Appellate Division held that the Supreme Court had no discretion under Domestic Relations Law § 244 to cancel the arrears, as the former husband had requested, since he had failed to show “good cause” for his failure to move for relief from the judgment directing payment before the arrears accrued.