REPORTED DECISIONS

 

Nerayoff v. Khorshad, 2019 NY Slip Op 00290 (N.Y. App. Div., 2nd Dept., January 16, 2019)

The firm represented a defendant against whom a motion for summary judgment in lieu of complaint was made. The Supreme Court granted the motion even though it was only supported by an affirmation of an attorney without personal knowledge of the facts of the case instead of an affidavit by the plaintiff. The defendant appealed. The Appellate Division reversed in favor of the firm’s client.

LG Funding LLC v. City N. Grill Corp., 2018 NY Slip Op 33290(U) (N.Y. Sup. Ct., Nassau Co., December 14, 2018)

Gene Rosen represented a funder in a merchant cash advance transaction. The merchant that was funded in the transaction defaulted on its agreement with the funder by refusing to turn over receivables that the funder had purchased. The funder sued the merchant for breach of contract. The funder moved for summary judgment, and the merchant opposed the motion, arguing the motion was premature because discovery was not yet complete. The Supreme Court granted the motion in favor of Gene Rosen’s client.

LG Funding, LLC v. Filton LLC, 2018 NY Slip Op 33289(U) (N.Y. Sup. Ct., Nassau Co., December 14, 2018)

Gene Rosen represented a funder in a merchant cash advance transaction. The merchant that was funded in the transaction defaulted on its agreement with the funder by refusing to turn over receivables that the funder had purchased. The funder sued the merchant for breach of contract. The funder moved for summary judgment, and the merchant opposed the motion, arguing that the transaction was an illegal usurious loan and that the signatures on the agreement were forged. The Supreme Court granted the motion favor of Gene Rosen’s client.

LG Funding LLC v. Garber, 2018 NY Slip Op 33135(U) (N.Y. Sup. Ct., Nassau Co., December 4, 2018)

The firm represented a funder in a merchant cash advance transaction. The merchant that was funded in the transaction defaulted on its agreement with the funder by refusing to turn over receivables that the funder had purchased. The funder sued the guarantor of the agreement for breach of guaranty. The guarantor counterclaimed, alleging that the transaction was an illegal usurious loan. The funder moved to dismiss the counterclaim and for summary judgment on its breach of contract claim. Although the Supreme Court initially denied the motion, reargument was granted and the motion was granted in favor of the firm’s client.

Official Committee of Unsecured Creditors v. LG Funding, LLC (In re Cornerstone Tower Servs.), 2018 Bankr. LEXIS 3562 (Bankr. D. Neb., November 9, 2018)

The firm represented a funder in a merchant cash advance transaction. The merchant that was funded in the transaction filed for bankruptcy less than 90 days later. In the bankruptcy case, the unsecured creditors committee claimed that the payments the funder received under the transaction were preferential transfers and sued for their return. The funder defended itself arguing that the payments were made in the ordinary course of business and therefore did not have to be returned. The committee moved for summary judgment, arguing that the ordinary course of business defense could not be applicable because the transaction was a loan with an exorbitant rate of return. The Bankruptcy Court denied the motion in favor of the firm’s client.

LG Funding LLC v. Garber, 2018 NY Slip Op 32067(U) (N.Y. Sup. Ct., Nassau Co., August 20, 2018)

The firm represented a funder in a merchant cash advance transaction. The merchant that was funded in the transaction defaulted on its agreement with the funder by refusing to turn over receivables that the funder had purchased. The funder sued the guarantor of the agreement for breach of guaranty. The guarantor moved to change the venue of the case, arguing that Nassau County was not a proper venue. The funder opposed the motion, arguing that the agreement permitted the case to be filed in any court located in New York. The Supreme Court denied the motion in favor of the firm’s client.

Russell v. Pisana, 164 A.D. 3d 704, 83 N.Y.S. 3d 124, 2018 NY Slip Op 05789 (N.Y. App. Div., 2nd Dept., August 15, 2018)

Gene Rosen represented the purchaser of a home under a land sale contract. Under the contract, the purchaser paid the seller based on a schedule similar to that of a mortgage and would not receive a deed for the property until the contract would be paid in full. Even though the purchaser was making all payments due without default, the seller sued the purchaser for breach of contract, alleging the purchaser was using the property as a farm to grow marijuana. During the lawsuit, the purchaser stopped making payments under the land sale contract. The seller then made a motion for summary judgment against the purchaser even though the seller had not sued the purchaser on that basis, and the Supreme Court granted the motion. The purchaser appealed. The Appellate Division reversed in favor of Gene Rosen’s client, which prevented the purchaser from losing the property and hundreds of thousands of dollars paid under the land sale contract.

Gecker v. LG Funding, LLC (In re Hill), 589 B.R. 614, 66 Bankr. Ct. Dec. 65, (Bankr. N.D. Ill., August 15, 2018)

Gene Rosen represented a funder of merchant cash advance transactions. The merchant that was funded in the transactions filed for bankruptcy. In the bankruptcy case, the Trustee sued for the return of the payments the funder received under the transactions, alleging they were fraudulent transfers because the transactions were usurious loans and that they were also preferential transfers made in payment of debts during the 90 day period leading up to the debtor’s bankruptcy. The funder defended itself, arguing that the transactions were not loans, and since there could be no usury without a loan, the payments could not be deemed fraudulent transfers. The funder also argued that the payments were made in the ordinary course of business and therefore did not have to be returned. In a landmark decision for the Merchant Cash Advance industry, after a trial, the Bankruptcy Court dismissed all claims in favor of Gene Rosen’s client. This victory caused the settlement of numerous similar claims against other funders and has discouraged others against asserting similar claims against funders.

LG Funding, LLC v. City N. Grill Corp., 2018 NY Slip Op 30372(U) (N.Y. Sup. Ct., Nassau Co., February 26, 2018)

Gene Rosen represented a funder in a merchant cash advance transaction. The merchant that was funded in the transaction defaulted on its agreement with the funder by refusing to turn over receivables that the funder had purchased. The funder sued the merchant for breach of contract. The merchant counterclaimed, alleging that the transaction was an illegal usurious loan and that the officer who signed the agreement for the merchant was defrauded into believing that the agreement was a loan and not a sale of receivables. The funder moved to dismiss the counterclaims. The Supreme Court granted the motion in favor of Gene Rosen’s client. The Supreme Court later granted summary judgment in favor of Gene Rosen’s client.

LG Funding, LLC v. Balsamo, 2017 NY Slip Op 32686(U) (N.Y. Sup. Ct., Nassau Co., December 21, 2017)

Gene Rosen represented a funder in a merchant cash advance transaction. The merchant that was funded in the transaction defaulted on its agreement with the funder by refusing to turn over receivables that the funder had purchased. The funder sued the guarantors of the agreement for breach of guaranty. The guarantors counterclaimed, alleging that the transaction was an illegal usurious loan and that they were defrauded into believing that they would not be bound by the personal guaranty they signed. The funder moved to dismiss the counterclaims and for summary judgment on its breach of contract claim. The Supreme Court granted the motion in favor of Gene Rosen’s client.

LG Funding, LLC v. Grace Plastics, Inc., 2017 NY Slip Op 32750(U) (Sup. Ct., Nassau Co., December 17, 2017)

Gene Rosen represented a funder in a merchant cash advance transaction. The merchant that was funded in the transaction defaulted on its agreement with the funder by refusing to turn over receivables that the funder had purchased. The funder sued the merchant for breach of contract. The merchant counterclaimed, alleging that the transaction was an illegal usurious loan. The funder moved to dismiss the counterclaims and for summary judgment on its breach of contract claim. The Supreme Court granted the motion in favor of Gene Rosen’s client.

LG Funding, LLC v. Snowstar, Inc., 2017 NY Slip Op 32741(U) (Sup. Ct., Nassau Co., December 7, 2017)

Gene Rosen represented a funder in a merchant cash advance transaction. The merchant that was funded in the transaction defaulted on its agreement with the funder by refusing to turn over receivables that the funder had purchased. The funder sued the merchant for breach of contract. The merchant counterclaimed, alleging that the transaction was an illegal usurious loan. The funder moved to dismiss the counterclaims and for summary judgment on its breach of contract claim. The Supreme Court granted the motion in favor of Gene Rosen’s client.

LG Funding, LLC v. Christenbury Eye Ctr., P.A., 2017 NY Slip Op 32609(U) (N.Y. Sup. Ct., Nassau Co., December 7, 2017)

Gene Rosen represented a funder in a merchant cash advance transaction. The merchant that was funded in the transaction defaulted on its agreement with the funder by refusing to turn over receivables that the funder had purchased. The funder sued the merchant for breach of contract. The merchant moved to dismiss, arguing that the transaction was an illegal usurious loan. The funder opposed the motion. The Supreme Court denied the motion in favor of Gene Rosen’s client. The Supreme Court later granted summary judgment in favor of Gene Rosen’s client.

LG Funding, LLC v. Island Flavor, LLC, 2017 NYLJ LEXIS 3426 (N.Y. Sup. Ct., Nassau Co., November 21, 2017)

Gene Rosen represented a funder in a merchant cash advance transaction. The merchant that was funded in the transaction defaulted on its agreement with the funder by refusing to turn over receivables that the funder had purchased. The funder sued the merchant for breach of contract. The merchant counterclaimed, alleging that the transaction was an illegal usurious loan. The funder moved to dismiss the counterclaims and for summary judgment on its breach of contract claim. The Supreme Court granted the motion in favor of Gene Rosen’s client. Gene Rosen collected the entire judgment that was later entered in favor of his client.

LG Funding, LLC v. Branson Getaways, Inc., 2017 NY Slip Op 32387(U) (N.Y. Sup. Ct., Nassau Co., November 13, 2017)

Gene Rosen represented a funder in a merchant cash advance transaction. The merchant that was funded in the transaction defaulted on its agreement with the funder by refusing to turn over receivables that the funder had purchased. The funder sued the merchant for breach of contract. The funder obtained an order granting a default judgment. The merchant moved to vacate the default, alleging that the transaction was an illegal usurious loan and that some of the signatures for the merchant on the agreement were forgeries. The funder opposed the motion, arguing that the transaction was not a loan and that usury was therefore inapplicable and that the merchant was aware of all of the terms and conditions of the agreement and did not dispute the validity of the signatures on the first page incorporating them by reference. The Supreme Court denied the motion in favor of Gene Rosen’s client.

LG Funding, LLC v. Four Paws Orlando, LLC, 2017 NY Slip Op 32391(U) (N.Y. Sup. Ct., Nassau Co., November 9, 2017)

Gene Rosen represented a funder in a merchant cash advance transaction. The merchant that was funded in the transaction defaulted on its agreement with the funder by refusing to turn over receivables that the funder had purchased. The funder sued the guarantor of the agreement for breach of guaranty. The guarantor moved to change the venue of the case, arguing that Nassau County was not a proper venue. The funder opposed the motion, arguing that the agreement permitted the case to be filed in any court located in New York. The Supreme Court denied the motion in favor of Gene Rosen’s client.

Russell v. Pisana, 2017 NY Slip Op 79593(U) (N.Y. App. Div., 2nd Dept., July 11, 2017)

Gene Rosen represented the purchaser of a home under a land sale contract. Under the contract, the purchaser paid the seller based on a schedule similar to that of a mortgage and would not receive a deed for the property until the contract would be paid in full. Even though the purchaser was making all payments due without default, the seller sued the purchaser for breach of contract, claiming the purchaser was using the property as a farm to grow marijuana. During the lawsuit, the purchaser stopped making payments under the land sale contract. The seller then made a motion for summary judgment against the purchaser even though the seller had not sued the purchaser on that basis, and the Supreme Court granted the motion. The purchaser appealed. The purchaser moved to extend the purchaser’s time to perfect the appeal. The Appellate Division granted the motion in favor of Gene Rosen’s client. The Appellate Division later reversed in favor of Gene Rosen’s client.

New York Merchants Protective Co., Inc. v. Antique Rugs Studio, Inc., 55 Misc. 3d 146(A), 58 N.Y.S. 3d 874, 2017 NY Slip Op 50681(U) (N.Y. App. Term, 2nd Dept., May 18, 2017)

Gene Rosen represented a petitioner confirming an arbitration award. The District Court dismissed the petition to confirm the award for improper service. After being overruled in an appeal of the dismissal, the District Court granted the petition to confirm the award but refused to award the petitioner its legal fees. The petitioner appealed again. The Appellate Term reversed and awarded legal fees in favor of Gene Rosen’s client.

JSBarkats PLLC v. Response Scientific Inc., 149 A.D. 3d 652, 50 N.Y.S. 3d 873, 2017 NY Slip Op 03142 (N.Y. App. Div., 1st Dept., April 25, 2017)

Gene Rosen represented a law firm suing to collect fees it was owed by a company. The company had the removed from state court to federal court, claiming that there was diversity jurisdiction since the law firm and the company were from different states and the amount in controversy was over $75,000. The federal court later had the case remanded to state court upon finding there was no diversity. The law firm then moved for summary judgment, at which point the company moved to compel arbitration based on an arbitration clause their retainer agreement with the law firm. The motion was denied on the basis that the company waived its right to arbitrate by waiting to assert that right. The company appealed and the law firm opposed the appeal. The Appellate Division affirmed in favor of Gene Rosen’s client.

D&W Cent. Sta. Fire Alarm Co., Inc. v. 112 Fulton Group, Inc., 55 Misc. 3d 132(A), 55 N.Y.S. 3d 691, 2017 NY Slip Op 50425(U)

Gene Rosen represented a petitioner confirming an arbitration award. The Civil Court granted the petition to confirm the award but refused to award the petitioner its legal fees. The petitioner appealed. The Appellate Term reversed and awarded legal fees in favor of Gene Rosen’s client.

Longo v. Key Appraisals, Inc., 55 Misc. 3d 128(A), 55 N.Y.S. 3d 692, 2017 NY Slip Op 50366(U) (N.Y. App. Term 2nd Dept., March 30, 2017)

Gene Rosen represented a petitioner confirming an arbitration award. The Civil Court granted the petition to confirm the award but refused to award the petitioner its legal fees. The petitioner appealed. The Appellate Term reversed and awarded legal fees in favor of Gene Rosen’s client.

New York Merchants Protective Co., Inc. v. Apollon Waterproofing & Restoration Corp., 55 Misc. 3d 128(A), 55 N.Y.S. 3d 693, 2017 NY Slip Op 50368(U) (N.Y. App. Term 2nd Dept., March 30, 2017)

Gene Rosen represented a petitioner confirming an arbitration award. The District Court dismissed the petition to confirm the award for improper service. After being overruled in an appeal of the dismissal, the District Court granted the petition to confirm the award but refused to award the petitioner its legal fees. The petitioner appealed again. The Appellate Term reversed and awarded legal fees in favor of Gene Rosen’s client.

Matter of La Boom Inc. v. D & W. Cent. Sta. Fire Alarm Co., Inc., 2016 NY Slip Op 32573(U) (N.Y. Sup. Ct., New York Co., December 19, 2016)

Gene Rosen represented an alarm company suing its subscriber at arbitration for breach of contract. The subscriber filed for a stay of arbitration, claiming that its contract with the alarm company was not an arbitration agreement. The Supreme Court denied the petition to stay arbitration in favor of Gene Rosen’s client.

A & L Vil. Mkt., Inc. v. 344 Vil., Inc., 140 A.D. 3d 804, 33 N.Y.S. 3d 402, 2016 NY Slip Op 04367 (N.Y. App. Div., 2nd Dept., June 8, 2016)<

Gene Rosen represented a business broker. The broker introduced a buyer to the seller of a supermarket. The supermarket’s landlord ran a credit check on the buyer and approved him to take over the supermarket even though his credit was mediocre. The seller proceeded with the transaction even though the buyer only brought half the money he was required to pay during the closing. The buyer later defaulted on a promissory note to the seller. The seller found out that the buyer had filed for bankruptcy ten years before. The seller sued the broker for breach of contract and negligence, claiming that the broker should have discovered the buyer’s past bankruptcy and reported it to the seller. The broker argued that although it owed the seller a fiduciary duty, there was no breach of that duty because it did not withhold from or misrepresent any information to the seller. The parties’ dispute was heard by an arbitrator. The arbitrator ruled against the broker years earlier in a in a different case. The previous case was disclosed to the seller’s attorney after the arbitration hearing but before an award was issued, but the seller did not raise any objection. When the arbitrator issued an award in favor of the broker dismissing the seller’s claims, the seller moved to vacate the award, claiming the arbitrator was biased. The Supreme Court denied the motion and confirmed the award in favor of Gene Rosen’s client. The seller appealed. The Appellate Division affirmed in favor of Gene Rosen’s client.

Marino v. Salzman, 51 Misc. 3d 131(A), 36 N.Y.S. 3d 48, 2016 NY Slip Op 50410(U) (N.Y. App. Term, 2nd Dept., March 23, 2016)

Gene Rosen represented an alarm company and its president. A customer sued the company and its president for breach of contract. The company made a motion to dismiss the president from the case and to move the dispute to arbitration pursuant to an arbitration agreement in its contract with the customer. The District Court dismissed the president from the case because he had no direct involvement with the case but declined to refer the rest of the case to arbitration due to a state law that prohibited mandatory arbitration in consumer contracts. The alarm company appealed on the basis that the transaction involved interstate commerce and the Federal Arbitration Act preempted the state law prohibiting arbitration in consumer contracts. The Appellate Term reversed in favor of Gene Rosen’s client.

Summit Apparel, Inc. v. Promo Nation, Inc., 50 Misc. 3d 94, 25 N.Y.S. 3d 773, 2015 NY Slip Op 25397 (N.Y. App. Term, 2nd Dept., November 30, 2015)

Gene Rosen represented an apparel manufacturer. The manufacturer received a large order from a promoter. The manufacturer informed the promoter it could not fulfill the order immediately, and the promoter approved, requesting that the manufacturer deliver as much of the order as it could as soon as possible. The manufacturer made a large delivery immediately and completed the rest of the order within 90 days. The promoter refused to pay the final balance of the order. The manufacturer sued the promoter for breach of contract. The promoter counterclaimed, alleging that the late delivery of the order caused it to lose a major client and $750,000 in future profit. The manufacturer moved to dismiss the counterclaim and for summary judgment on its breach of contract claim. The Civil Court denied the motion, ruling that there was an issue of fact as to whether or not the lateness of the delivery was a breach of contract. The manufacturer appealed. The Appellate Term reversed on favor of Gene Rosen’s client. The case later settled in favor of Gene Rosen’s client.

Slomin’s, Inc. v. Mehta, 47 Misc. 3d 148(A), 17 N.Y.S. 3d 385, 2015 NY Slip Op 50767(U) (N.Y. App. Term, 2nd Dept., May 6, 2015)

Gene Rosen represented an alarm company. The alarm company sued a customer for breach of contract and obtained a default judgment. The customer moved to vacate the default judgment, claimant he was not properly served. The alarm company opposed the motion, arguing the customer failed to demonstrate improper service or a defense to the case. The Civil Court vacated the judgment and the alarm company appealed. The Appellate Term reversed in favor of Gene Rosen’s client.

Schiffer v. Slomin’s, Inc., 48 Misc. 3d 15, 11 N.Y.S. 3d 799, 2015 NY Slip Op 25101 (N.Y. App. Term, 2nd Dept., March 30, 2015)

Gene Rosen represented an alarm company. A customer sued the company for breach of contract. The company moved to compel arbitration on the basis that the contract the customer signed contained an arbitration agreement. The District Court denied the motion, ruling that the arbitration agreement was a mandatory arbitration agreement that state law prohibits from consumer contracts. The District Court granted reargument of the motion but adhered to its prior decision, ruling that the state law prohibiting mandatory arbitration from consumer contracts was not preempted by the Federal Arbitration Act because the transaction did not affect interstate commerce. The alarm company appealed. In a landmark ruling for the alarm industry, the Appellate Term modified the lower court ruling and compelled arbitration in favor of Gene Rosen’s client. The significance of this case is that it authorizes arbitration agreements in alarm contracts, which can be used in coordination with class action waivers to protect alarm companies from class action lawsuits in New York.

Intriago v. Slomin’s Shield, 47 Misc. 3d 135(A), 9 N.Y.S. 3d 593, 2015 NY Slip Op 50492(U) (N.Y. App. Term, 2nd Dept., March 30, 2015)

Gene Rosen represented an alarm company. A customer sued the company for breach of contract. The company moved to compel arbitration on the basis that the contract the customer signed contained an arbitration agreement. The District Court denied the motion, ruling that the arbitration agreement was a mandatory arbitration agreement that state law prohibits from consumer contracts and was not preempted by the Federal Arbitration Act because the transaction did not affect interstate commerce. The alarm company appealed. The Appellate Term reversed the lower court ruling and compelled arbitration in favor of Gene Rosen’s client.

Slomin’s, Inc. v. Serpico, 47 Misc. 3d 134(A), 9 N.Y.S. 3d 595, 2015 NY Slip Op 50478(U), (N.Y. App. Term, 2nd Dept., March 26, 2015)

Gene Rosen represented an alarm company that had obtained a default judgment against a customer for breach of contract. The customer moved to vacate the judgment, claiming he was never served. The alarm company opposed the motion, arguing the customer failed to demonstrate improper service or a defense to the case. The Civil Court vacated the judgment and the alarm company appealed. The Appellate Term reversed in favor of Gene Rosen’s client. The case later settled in favor of Gene Rosen’s client.

New York Merchants Protective Co., Inc. v. Korin, 46 Misc. 3d 147(A), 2015 NY Slip Op 50228(U) (N.Y. App. Term, 2nd Dept., February 24, 2015)

Gene Rosen represented an alarm company that obtained a default judgment confirming an arbitration award against a guarantor of a customer for breach of contract. The guarantor moved to vacate the judgment, claiming that he was not responsible for the contract because he had sold his business. The Civil Court granted the motion and the alarm company appealed. The Appellate Term reversed the ruling and reinstated the judgment in favor of Gene Rosen’s client.

Mt. Sinai Ageless 360, Inc. v. Roxanne Gail Carfora D.O., P.C., 2015 NY Slip Op 62677(U) (N.Y. App. Term, 2nd Dept., January 15, 2015)

Gene Rosen represented a medical practice in a complex dispute with its former business manager. The manager held all of the leases for the practice’s offices through shell corporations he controlled and only permitted the practice to occupy the spaces through license agreements. When the practice terminated the manager, the manager caused over 20 lawsuits to be filed against the practice, which included the manager trying to evict the practice from all of its offices. Other attorneys made numerous unsuccessful applications to the Commercial Division of the Supreme Court and the Appellate Division to stop the evictions. In the first of the eviction cases to proceed to trial, Gene Rosen obtained a dismissal in his client’s favor by exposing defects in the manager’s papers. When the case was re-filed, the practice moved for discovery, but the District Court denied the motion. The practice appealed the denial and moved for a stay of the eviction case pending the resolution of the appeal. The Appellate Term granted the motion and stayed the eviction case in favor of Gene Rosen’s client. This ruling was significant because it discouraged the judges in the other eviction cases against proceeding with immediate trials. If the eviction cases had proceeded immediately, the practice would have been forced out of business and would have lost all of the lawsuits filed against it. The litigations later settled in favor of Gene Rosen’s client.

New York Merchants Protective Co., Inc. v. Antique Rugs Studio, Inc., 45 Misc. 3d 129(A), 3 N.Y.S. 3d 285, 2014 NY Slip Op 51526(U) (N.Y. App. Term, 2nd Dept., October 23, 2014)

Gene Rosen represented a petitioner confirming an arbitration award. The District Court dismissed the petition to confirm the award for improper service, and the petitioner appealed. The Appellate Term reversed the dismissal and reinstated the petition in favor of Gene Rosen’s client.

New York Merchants Protective Co., Inc. v. Antique Rugs Studio, Inc., 2014 NY Slip Op 87428(U) (N.Y. App. Term, 2nd Dept., October 23, 2014)

Gene Rosen represented a petitioner confirming an arbitration award. The District Court dismissed the petition to confirm the award for improper service, and the petitioner appealed. The Appellate Term affirmed the dismissal. The petitioner moved to reargue the appeal due to a later decision by the Appellate Division in another case that overruled the Appellate Term on the issue. The Appellate Term granted the motion, recalled and vacated its original ruling, and replaced it with one reversing the dismissal and reinstating the petition in favor of Gene Rosen’s client.

New York Merchants Protective Co., Inc. v. Apollon Waterproofing & Restoration Corp., 45 Misc. 3d 129(A), 2014 NY Slip Op 51525(U) (N.Y. App. Term, 2nd Dept., October 23, 2014)

Gene Rosen represented a petitioner confirming an arbitration award. The District Court dismissed the petition to confirm the award for improper service, and the petitioner appealed. The Appellate Term reversed the dismissal and reinstated the petition in favor of Gene Rosen’s client.

New York Merchants Protective Co., Inc. v. Apollon Waterproofing & Restoration Corp., 2014 NY Slip Op 87427(U) (N.Y. App. Term, 2nd Dept., October 23, 2014)

Gene Rosen represented a petitioner confirming an arbitration award. The District Court dismissed the petition to confirm the award for improper service, and the petitioner appealed. The Appellate Term affirmed the dismissal. The petitioner moved to reargue the appeal due to a later decision by the Appellate Division in another case that overruled the Appellate Term on the issue. The Appellate Term granted the motion, recalled and vacated its original ruling, and replaced it with one reversing the dismissal and reinstating the petition in favor of Gene Rosen’s client.

New York Merchants Protective Co., Inc. v. Oristy Food Ctr., Inc., 45 Misc. 3d 129(A), 2014 NY Slip Op 51524(U) (N.Y. App. Term, 2nd Dept., October 23, 2014)

Gene Rosen represented a petitioner confirming an arbitration award. The Civil Court dismissed the petition to confirm the award for improper service, and the petitioner appealed. The Appellate Term reversed the dismissal and reinstated the petition in favor of Gene Rosen’s client.

New York Merchants Protective Co., Inc. v. Oristy Food Ctr., Inc., 2014 NY Slip Op 87426(U) (N.Y. App. Term, 2nd Dept., October 23, 2014)

Gene Rosen represented a petitioner confirming an arbitration award. The Civil Court dismissed the petition to confirm the award for improper service, and the petitioner appealed. The Appellate Term affirmed the dismissal with a dissenting opinion. The petitioner moved to reargue the appeal due to a later decision by the Appellate Division in another case that overruled the Appellate Term on the issue. The Appellate Term granted the motion, recalled and vacated its original ruling, and replaced it with one reversing the dismissal and reinstating the petition in favor of Gene Rosen’s client.

New York Merchants Protective Co., Inc. v. Ricca, 45 Misc. 3d 129(A), 2014 NY Slip Op 51523(U) (N.Y. App. Term, 2nd Dept., October 23, 2014)

Gene Rosen represented a petitioner confirming an arbitration award. The District Court dismissed the petition to confirm the award for improper service, and the petitioner appealed. The Appellate Term reversed the dismissal and reinstated the petition in favor of Gene Rosen’s client.

New York Merchants Protective Co., Inc. v. Ricca, 2014 NY Slip Op 87425(U) (N.Y. App. Term, 2nd Dept., October 23, 2014)

Gene Rosen represented a petitioner confirming an arbitration award. The District Court dismissed the petition to confirm the award for improper service, and the petitioner appealed. The Appellate Term affirmed the dismissal. The petitioner moved to reargue the appeal due to a later decision by the Appellate Division in another case that overruled the Appellate Term on the issue. The Appellate Term granted the motion, recalled and vacated its original ruling, and replaced it with one reversing the dismissal and reinstating the petition in favor of Gene Rosen’s client.

New York Merchants Protective Co., Inc. v. Rockaway Bagels, Inc., 45 Misc. 3d 128(A), 2014 NY Slip Op 51522(U) (N.Y. App. Term, 2nd Dept., October 23, 2014)

Gene Rosen represented a petitioner confirming an arbitration award. The Civil Court dismissed the petition to confirm the award for improper service, and the petitioner appealed. The Appellate Term reversed the dismissal and reinstated the petition in favor of Gene Rosen’s client.

New York Merchants Protective Co., Inc. v. Rockaway Bagels, Inc., 2014 NY Slip Op 87424(U) (N.Y. App. Term, 2nd Dept., October 23, 2014)

Gene Rosen represented a petitioner confirming an arbitration award. The Civil Court dismissed the petition to confirm the award for improper service, and the petitioner appealed. The Appellate Term affirmed the dismissal. The petitioner moved to reargue the appeal due to a later decision by the Appellate Division in another case that overruled the Appellate Term on the issue. The Appellate Term granted the motion, recalled and vacated its original ruling, and replaced it with one reversing the dismissal and reinstating the petition in favor of Gene Rosen’s client.

Slomin’s, Inc. v. Christiani, 43 Misc. 3d 132(A), 988 N.Y.S. 2d 525, 2014 NY Slip Op 50621(U) (N.Y. App. Term, 2nd Dept., March 31, 2014)

Gene Rosen represented a heating oil company that sued a customer for breach of contract. The company won a motion for summary judgment. After the order granting the motion for summary judgment was entered, the case appeared on the trial calendar because a clerk neglected to remove the case from the trial calendar, and the case was marked dismissed on the trial date. A judgment was later entered in favor of the company pursuant to the order granting it summary judgment. The customer then moved to vacate the judgment, claiming the case should have been dismissed because of what happened on the trial date. The judge presiding over the motion part on the return date of the customer’s motion vacated the judgment and placed the case on the trial calendar instead of referring the motion to the original judge who decided the summary judgment motion. The company appealed. The Appellate Term reversed the vacatur in favor of Gene Rosen’s client.

Slomin’s, Inc. v. Mehta, 2014 NY Slip Op 65891(U) (N.Y. App. Term, 2nd Dept., February 25, 2014)

Gene Rosen represented an alarm company that sued and obtained a default judgment against a customer for breach of contract. The customer moved to vacate the default judgment, claiming he was not properly served. The alarm company opposed the motion, arguing the customer failed to demonstrate improper service or a defense to the case. The Civil Court vacated the judgment, and the alarm company appealed. The alarm company moved for an enlargement of time to perfect the appeal because the Civil Court clerk did not transmit its file to the appellate court in time for the alarm company to meet its filing deadline. The Appellate Term granted the motion in favor of Gene Rosen’s client.

Matter of New York Merchants Protective Co., Inc. v. Mima’s Kitchen, Inc., 114 A.D. 3d 796, 979 N.Y.S. 2d 847, 2014 NY Slip Op 1008 (N.Y. App. Div., 2nd Dept., February 13, 2014)

Gene Rosen represented a petitioner confirming an arbitration award. The petition was served by mail pursuant to the arbitration rules, which were referenced in the arbitration agreement. The Civil Court dismissed the petition to confirm the award for improper service, and the petitioner appealed. The Appellate Term affirmed the dismissal with a dissenting opinion. The petitioner appealed further to the Appellate Division. The Appellate Division reversed and reinstated the petition in favor of Gene Rosen’s client.

Slomin’s, Inc. v. Serpico, 2014 NY Slip Op 63647(U) (N.Y. App. Term, 2nd Dept., February 3, 2014)

Gene Rosen represented an alarm company that had obtained a default judgment against a customer for breach of contract. The customer moved to vacate the judgment, claiming he was never served. The alarm company opposed the motion, arguing the customer failed to demonstrate improper service or a defense to the case. The Civil Court vacated the judgment, and the alarm company appealed. The appeal could not be perfected without the Civil Court’s file being transmitted to the appellate court, but the file was lost. The alarm company moved for an enlargement of time to perfect the appeal so that the Civil Court’s file could be reconstructed. The Appellate Term granted the motion in favor of Gene Rosen’s client. The Appellate Term later reversed the vacatur of the judgment and the case settled in favor of Gene Rosen’s client.

Andrews Intl., Inc. v. Interstate Materials Corp., 2013 NY Slip Op 33049(U) (N.Y. Sup. Ct., New York Co., November 13, 2013)

Gene Rosen represented a security guard company that sued a contractor for breach of contract. The guard company moved for summary judgment on its breach of contract claim. The Supreme Court granted the motion in favor of Gene Rosen’s client.

Slomin’s, Inc. v. Serpico, 2013 NY Slip Op 91841(U) (N.Y. App. Term, 2nd Dept., November 7, 2013)

Gene Rosen represented an alarm company that had obtained a default judgment against a customer for breach of contract. The customer moved to vacate the judgment, claiming he was never served. The alarm company opposed the motion, arguing the customer failed to demonstrate improper service or a defense to the case. The Civil Court vacated the judgment, and the alarm company appealed. The appeal could not be perfected without the Civil Court’s file being transmitted to the appellate court, but the file was lost. The alarm company moved for an enlargement of time to perfect the appeal so that the Civil Court’s file could be reconstructed. The Appellate Term granted the motion in favor of Gene Rosen’s client. The Appellate Term later reversed the vacatur of the judgment and the case settled in favor of Gene Rosen’s client.

Slomin’s, Inc. v. Serpico, 2013 NY Slip Op 81417(U) (N.Y. App. Term, 2nd Dept., July 31, 2013)

Gene Rosen represented an alarm company that had obtained a default judgment against a customer for breach of contract. The customer moved to vacate the judgment, claiming he was never served. The alarm company opposed the motion, arguing the customer failed to demonstrate improper service or a defense to the case. The Civil Court vacated the judgment, and the alarm company appealed. The appeal could not be perfected without the Civil Court’s file being transmitted to the appellate court, but the file was lost. The alarm company moved for a stay of the Civil Court case and an enlargement of time to perfect the appeal so that the Civil Court’s file could be reconstructed. The Appellate Term granted the motion in favor of Gene Rosen’s client. The Appellate Term later reversed the vacatur of the judgment and the case settled in favor of Gene Rosen’s client.

Matter of New York Merchants Protective Co., Inc. v. RW Adart Poly LLC, 108 A.D.3d 554, 968 N.Y.S.2d 552, 2013 NY Slip Op 5081 (N.Y. App. Div., 2nd Dept., July 3, 2013)

Gene Rosen represented a petitioner confirming an arbitration award against a subscriber it had sued at arbitration. The subscriber moved to modify the award, arguing that the arbitrator was not authorized to award legal fees due to the language of the arbitration agreement. The Supreme Court modified the award to deduct legal fees awarded by the arbitrator and confirmed the award as modified. The petitioner appealed. The Appellate Division modified and reinstated the legal fees in favor of Gene Rosen’s client.

Schiffer v. Slomin’s, Inc., 40 Misc. 3d 884, 970 N.Y.S. 2d 856, 2013 NY Slip Op 23214 (N.Y. Dist. Ct., Nassau Co., June 26, 2013)

Gene Rosen represented an alarm company that was sued by a customer for breach of contract. The company moved to compel arbitration on the basis that the contract the customer signed contained an arbitration agreement. The District Court denied the motion, ruling that the arbitration agreement was a mandatory arbitration agreement that state law prohibits from consumer contracts. The District Court granted reargument of the motion but adhered to its prior decision, ruling that the state law prohibiting mandatory arbitration from consumer contracts was not preempted by the Federal Arbitration Act because the transaction did not affect interstate commerce. The decision was later modified on appeal by the Appellate Term compelling arbitration in favor of Gene Rosen’s client.

Slomin’s, Inc. v. Christiani, 2013 NY Slip Op 74874(U) (N.Y. App. Term, 2nd Dept., May 13, 2013)

Gene Rosen represented a heating oil company that sued a customer for breach of contract. The company won a motion for summary judgment. After the order granting the motion for summary judgment was entered, the case appeared on the trial calendar because a clerk neglected to remove the case from the trial calendar, and the case was marked dismissed on the trial date. A judgment was later entered in favor of the company pursuant to the order granting it summary judgment. The customer then moved to vacate the judgment, claiming the case should have been dismissed because of what happened on the trial date. The judge presiding over the motion part on the return date of the customer’s motion vacated the judgment and placed the case on the trial calendar instead of referring the motion to the original judge who decided the summary judgment motion. The company appealed and moved for a stay of the case in the Civil Court pending the resolution of the appeal. The Appellate Term granted the motion in favor of Gene Rosen’s client. The Appellate Term later reversed in favor of Gene Rosen’s client.

Nu-Life Restorations of Long Island, Inc. v. Greenpoint Dental Plaza, P.C., 39 Misc. 3d 133(A), 971 N.Y.S. 2d 73, 2013 NY Slip Op 50488(U) (N.Y. App. Term, 2nd Dept., March 29, 2013)

Gene Rosen represented a dental lab that sued and obtained a default judgment against a dental office for goods sold and delivered. The dental office moved to vacate the judgment, claiming that it never received notice of the lawsuit and that it believed it paid its bills. The dental lab opposed the motion, arguing that the dental office failed to demonstrate any valid grounds to vacate the judgment. The Civil Court granted the motion and vacated the judgment. The dental lab appealed. The Appellate Term reversed and reinstated the judgment in favor of Gene Rosen’s client.

Supreme Sec. Sys., Ltd v. Atlas Switch Co., Inc., 39 Misc. 3d 130(A), 969 N.Y.S. 2d 806, 2013 NY Slip Op 50463(U)

Gene Rosen represented an alarm company that sued a subscriber for breach of contract and conversion of leased security equipment. During the trial, the parties made a partial settlement of only the conversion claim. The District Court recited that the breach of contract claim was settled and dismissed the conversion claim. The alarm company appealed. The Appellate Term modified and directed a new trial in favor of Gene Rosen’s client. The case subsequently settled in favor of Gene Rosen’s client.

Schiffer v. Slomin’s, Inc., 39 Misc. 3d 414, 959 N.Y.S. 2d 422, 2013 NY Slip Op 23046 (N.Y. Dist. Ct., Nassau Co., February 13, 2013)

Gene Rosen represented an alarm company that was sued by a customer for breach of contract. The company moved to compel arbitration on the basis that the contract the customer signed contained an arbitration agreement. The District Court denied the motion, ruling that the arbitration agreement was a mandatory arbitration agreement that state law prohibits from consumer contracts. The District Court later granted reargument of the motion but adhered to its prior decision, ruling that the state law prohibiting mandatory arbitration from consumer contracts was not preempted by the Federal Arbitration Act because the transaction did not affect interstate commerce. The decision was later modified on appeal by the Appellate Term compelling arbitration in favor of Gene Rosen’s client.

Matter of New York Merchants Protective Co., Inc. v. Mima’s Kitchen, Inc., 2012 NY Slip Op 78393(U) (N.Y. App. Div., 2nd Dept., July 11, 2012)

Gene Rosen represented a petitioner confirming an arbitration award. The petition was served by mail pursuant to the arbitration rules, which were referenced in the arbitration agreement. The Civil Court dismissed the petition to confirm the award for improper service, and the petitioner appealed. The Appellate Term affirmed the dismissal with a dissenting opinion. The petitioner made a motion to the Appellate Term for leave to appeal to the Appellate Division, but the Appellate Term denied the motion. The petitioner then made a motion to the Appellate Division for leave to Appeal to the Appellate Division. The Appellate Division granted the motion in favor of Gene Rosen’s client. The Appellate Division later reversed and reinstated the petition in favor of Gene Rosen’s client.

New York Merchants Protective Co., Inc. v. Mima’s Kitchen, Inc., 2012 NY Slip Op 74218(U) (N.Y. App. Term, 2nd Dept., May 15, 2012)

Gene Rosen represented a petitioner confirming an arbitration award. The petition was served by mail pursuant to the arbitration rules, which were referenced in the arbitration agreement. The Civil Court dismissed the petition to confirm the award for improper service, and the petitioner appealed. The Appellate Term affirmed the dismissal with a dissenting opinion. The petitioner moved for leave to appeal to the Appellate Division, but the Appellate Term denied the motion. The Appellate Division later granted a motion for leave to appeal and then reversed and reinstated the petition in favor of Gene Rosen’s client.

New York Merchants Protective Co., Inc. v. Northern Autogroup, LLC, 35 Misc. 3d 1, 941 N.Y.S. 2d 829, 2012 NY Slip Op 22024 (N.Y. App. Term, 2nd Dept., January 24, 2012)

Gene Rosen represented a petitioner confirming an arbitration award. The Civil Court modified the award to disallow a conditional award made by the arbitrator and confirmed the award as modified. The petitioner appealed. The Appellate Term reversed and remitted the matter to the arbitrator to determine if the condition imposed by the conditional part of the award was satisfied.

D&W Cent. Sta. Fire Alarm Co., Inc. v. United Props. Corp., 34 Misc. 3d 85, 940 N.Y.S. 2d 779, 2012 NY Slip Op 22012 (N.Y. App. Term, 2nd Dept., January 13, 2012)

Gene Rosen represented a petitioner confirming an arbitration award. The petition was filed within the one year statute of limitations, but was marked denied because nobody appeared in court for the petitioner on the return date due to a clerical error. The petitioner moved to restore the petition, but the motion was not made until more than a year after the award was served. The Civil Court denied the motion, ruling that the motion was untimely. The petitioner appealed. The Appellate Term reversed and granted the petition in favor of Gene Rosen’s client.

Slomin’s, Inc. v. Niranjan, 34 Misc. 3d 140(A), 943 N.Y.S. 2d 794, 2012 NY Slip Op 50055(U), (N.Y. App. Term, 2nd Dept., January 13, 2012)

Gene Rosen represented an alarm company that sued customers for breach of contract. The customers counterclaimed for breach of contract. The alarm company made a motion to dismiss the counterclaim. The Civil Court denied the motion, and the alarm company appealed. The Appellate Term modified and dismissed the counterclaim in favor of Gene Rosen’s client. The case later settled in favor of Gene Rosen’s client.

New York Merchants Protective Co., Inc. v. Backyard Party Tent Rental Inc., 34 Misc. 3d 55, 939 N.Y.S. 2d 220, 2011 NY Slip Op 21455 (N.Y. App. Term, 2nd Dept., December 16, 2011)

Gene Rosen represented a petitioner confirming an arbitration award. The District Court denied the petition because the demand for arbitration was not served by certified mail or in the same manner as a summons, even though the demand was served by mail, which was allowed by the arbitration rules referenced in the arbitration agreement and which service the arbitrator recognized as proper. The petitioner appealed. The appellate term reversed, granted the petition, and remitted the case to the District Court in favor of Gene Rosen’s client.

New York Merchants Protective Co., Inc. v. Antique Rugs Studio, Inc., 31 Misc. 3d 135(A), 927 N.Y.S. 2d 817, 2011 NY Slip Op 50642(U) (N.Y. App. Term, 2nd Dept., April 11, 2011)

Gene Rosen represented a petitioner confirming an arbitration award. The District Court dismissed the petition to confirm the award for improper service, and the petitioner appealed. Although the Appellate Term affirmed the dismissal, it later granted a motion to reargue, recalled and vacated its decision, and replaced it with a new one reversing and reinstating the petition in favor of Gene Rosen’s client.

New York Merchants Protective Co., Inc. v. Apollon Waterproofing & Restoration Corp., 31 Misc. 3d 135(A), 927 N.Y.S. 2d 817, 2011 NY Slip Op 50638(U) (N.Y. App. Term, 2nd Dept., April 11, 2011)

Gene Rosen represented a petitioner confirming an arbitration award. The District Court dismissed the petition to confirm the award for improper service, and the petitioner appealed. Although the Appellate Term affirmed the dismissal, it later granted a motion to reargue, recalled and vacated its decision, and replaced it with a new one reversing and reinstating the petition in favor of Gene Rosen’s client.

New York Merchants Protective Co., Inc. v. Mima’s Kitchen, Inc., 31 Misc. 3d 79, 924 N.Y.S. 2d 728, 2011 NY Slip Op 21134 (N.Y. App. Term, 2nd Dept., April 11, 2011)

Gene Rosen represented a petitioner confirming an arbitration award. The petition was served by mail pursuant to the arbitration rules, which were referenced in the arbitration agreement. The Civil Court dismissed the petition to confirm the award for improper service, and the petitioner appealed. Although the Appellate Term affirmed the dismissal with a dissenting opinion, the Appellate Division later reversed and reinstated the petition in favor of Gene Rosen’s client.

New York Merchants Protective Co., Inc. v. Oristy Food Center, Inc., 31 Misc. 3d 135(A), 927 N.Y.S. 2d 817, 2011 NY Slip Op 50637(U) (N.Y. App. Term, 2nd Dept., April 11, 2011)

Gene Rosen represented a petitioner confirming an arbitration award. The Civil Court dismissed the petition to confirm the award for improper service, and the petitioner appealed. Although the Appellate Term affirmed the dismissal with a dissenting opinion, it later granted a motion to reargue, recalled and vacated its decision, and replaced it with a new one reversing and reinstating the petition in favor of Gene Rosen’s client. The case later settled in favor of Gene Rosen’s client.

New York Merchants Protective Co., Inc. v. Ricca, 31 Misc. 3d 134(A), 927 N.Y.S. 2d 817, 2011 NY Slip Op 50631(U) (N.Y. App. Term, 2nd Dept., April 11, 2011)

Gene Rosen represented a petitioner confirming an arbitration award. The District Court dismissed the petition to confirm the award for improper service, and the petitioner appealed. Although the Appellate Term affirmed the dismissal, it later granted a motion to reargue, recalled and vacated its decision, and replaced it with a new one reversing and reinstating the petition in favor of Gene Rosen’s client.

New York Merchants Protective Co., Inc. v. Rockaway Bagels, Inc., 31 Misc. 3d 134(A), 927 N.Y.S. 2d 817, 2011 NY Slip Op 50629(U) (N.Y. App. Term, 2nd Dept., April 11, 2011)

Gene Rosen represented a petitioner confirming an arbitration award. The Civil Court dismissed the petition to confirm the award for improper service, and the petitioner appealed. Although the Appellate Term affirmed the dismissal with a dissenting opinion, it later granted a motion to reargue, recalled and vacated its decision, and replaced it with a new one reversing and reinstating the petition in favor of Gene Rosen’s client. The case later settled in favor of Gene Rosen’s client.

Davis Alarms, Inc. v. Chazanoff, 30 Misc. 3d 142(A), 924 N.Y.S. 2d 308, 2011 NY Slip Op 50318(U) (N.Y. App. Term, 2nd Dept., January 28, 2011)

Gene Rosen represented a petitioner confirming an arbitration award. The Civil Court modified the award to deduct legal fees awarded by the arbitrator and confirmed the award as modified. The petitioner appealed. The Appellate Term reversed, reinstated the legal fees, and awarded additional legal fees for the proceeding in favor of Gene Rosen’s client.

Internet Sec. Sys., Inc. v. Hauer, 30 Misc. 3d 142(A), 924 N.Y.S. 2d 309, 2011 NY Slip Op 50317(U) (N.Y. App. Term, 2nd Dept., January 28, 2011)

Gene Rosen represented a petitioner confirming an arbitration award. The Civil Court modified the award to deduct legal fees awarded by the arbitrator and confirmed the award as modified. The petitioner appealed. The Appellate Term reversed, reinstated the legal fees, and awarded additional legal fees for the proceeding in favor of Gene Rosen’s client.

Nat. Safeway Alert Sys., Inc. v. Pelham 7-11, LLC, 30 Misc. 3d 142(A), 924 N.Y.S. 2d 310, 2011 NY Slip Op 50319(U) (N.Y. App. Term, 2nd Dept., January 28, 2011)

Gene Rosen represented a petitioner confirming an arbitration award. The Civil Court modified the award to deduct legal fees awarded by the arbitrator and confirmed the award as modified. The petitioner appealed. The Appellate Term reversed, reinstated the legal fees, and awarded additional legal fees for the proceeding in favor of Gene Rosen’s client.

United Burglar Alarm, Inc. v. Teodorovich, 30 Misc. 3d 142(A), 924 N.Y.S. 2d 312, 2011 NY Slip Op 50316(U) (N.Y. App. Term, 2nd Dept., January 28, 2011)

Gene Rosen represented a petitioner confirming an arbitration award. The Civil Court modified the award to deduct legal fees awarded by the arbitrator and confirmed the award as modified. The petitioner appealed. The Appellate Term reversed, reinstated the legal fees, and awarded additional legal fees for the proceeding in favor of Gene Rosen’s client.

New York Merchants Protective Co., Inc. v. Green Forest Mkt., Inc., 31 Misc. 3d 27, 920 N.Y.S. 2d 568, 2010 NY Slip Op 20506 (N.Y. App. Term, 2nd Dept., December 8, 2010)

Gene Rosen represented a petitioner confirming an arbitration award. The Civil Court modified the award to deduct legal fees awarded by the arbitrator and confirmed the award as modified. The petitioner appealed. The Appellate Term reversed and reinstated the legal fees in favor of Gene Rosen’s client.

New York Merchants Protective Co., Inc. v. RW Adart Poly, LLC, 2010 NY Slip Op 32880(U) (N.Y. Sup. Ct., Nassau Co., October 13, 2010)

Gene Rosen represented a petitioner confirming an arbitration award against a subscriber it had sued at arbitration. The subscriber moved to modify the award, arguing that the arbitrator was not authorized to award legal fees due to the language of the arbitration agreement. Although the Supreme Court modified the award to deduct legal fees awarded by the arbitrator and confirmed the award as modified, on appeal, the Appellate Division modified and reinstated the legal fees in favor of Gene Rosen’s client.

Davis Alarms, Inc. v. Landezabad, 28 Misc. 3d 135(A), 958 N.Y.S. 2d 60, 2010 NY Slip Op 51358(U) (N.Y. App. Term, 2nd Dept., July 29, 2010)

Gene Rosen represented a petitioner confirming an arbitration award that had obtained a default judgment against its subscriber. The subscriber made a motion to vacate the judgment, which was denied. The subscriber then moved again to vacate the judgment. The judge presiding over the motion part on the return date of the second motion declined to refer the motion to the judge who decided the original motion, granted the motion, and vacated the judgment. The petitioner appealed. The Appellate Term reversed and reinstated the judgment in favor of Gene Rosen’s client. The second motion to vacate was remitted to the judge who decided the first motion, who later denied the motion in favor of Gene Rosen’s client.

D&W Cent. Sta. Fire Alarm Co., Inc. v. Ziari, 28 Misc. 3d 128(A), 957 N.Y.S. 2d 635, 2010 NY Slip Op 51194(U) (N.Y. App. Term, 2nd Dept., July 7, 2010)

Gene Rosen represented a petitioner confirming an arbitration award. The Civil Court denied the petition, ruling that there was no evidence the award was delivered to the parties by certified mail, return receipt requested, even though the award certified that it was delivered in the manner provided in the arbitration agreement, and even though the award was not contested on those grounds. The petitioner appealed. The Appellate Term reversed, granted the petition, and remitted the case to the Civil Court for a determination of the petitioner’s legal fees in favor of Gene Rosen’s client.

New York Merchants Protective Co., Inc. v. Mima’s Kitchen, Inc., 2010 NY Slip Op 62569(U) (N.Y. App. Term, 2nd Dept., January 29, 2010)

Gene Rosen represented a petitioner confirming an arbitration award. The petition was served by mail pursuant to the arbitration rules, which were referenced in the arbitration agreement. The Civil Court dismissed the petition to confirm the award for improper service, and the petitioner appealed. The Appellate Term mistakenly dismissed the appeal for failure to perfect because it did not send a notice that it was ready for the appeal to be perfected until the deadline to do so had passed. The petitioner moved to vacate the dismissal of the appeal. The Appellate Term granted the motion in favor of Gene Rosen’s client. Although the Appellate Term later affirmed the dismissal with a dissenting opinion, the Appellate Division then reversed and reinstated the petition in favor of Gene Rosen’s client.

Seretis v. D&W Cent. Sta. Alarm Co., 2010 NY Slip Op 60375(U) (N.Y. App. Term, 1st Dept., January 8, 2010)

Gene Rosen represented an alarm company that was sued in small claims court by a former subscriber. The subscriber lost his case and appealed. When the subscriber missed his deadline to perfect the appeal, the petitioner moved to dismiss the appeal for failure to perfect. The Appellate Term granted the motion and dismissed the appeal in favor of Gene Rosen’s client.

Davis Alarms, Inc. v. Diamond Cutters, Inc., 25 Misc. 3d 130(A), 901 N.Y.S. 2d 905, 2009 NY Slip Op 52120(U) (N.Y. App. Term, 2nd Dept., October 13, 2009)

Gene Rosen represented a petitioner confirming an arbitration award. The Civil Court modified the award to deduct legal fees awarded by the arbitrator and confirmed the award as modified. The petitioner appealed. The Appellate Term reversed and reinstated the legal fees in favor of Gene Rosen’s client.

Discover Bank v. Geselowitz, 2009 NY Slip Op 31250(U) (N.Y. Sup. Ct., Nassau Co., June 1, 2009)

Gene Rosen represented a consumer whose bank account was frozen in connection with a default judgment that was entered against him for an alleged credit card debt. The consumer moved to vacate the judgment and to lift the restraints on his bank account. The Supreme Court granted the motion, vacated the judgment, unfroze the bank account, and dismissed the case in favor of Gene Rosen’s client. No further action was taken against Gene Rosen’s client in connection with the alleged debt.

New York Merchants Protective Co., Inc. v. Salloom Import & Export Corp., 18 Misc. 3d 129(A), 856 N.Y.S. 2d 25, 2007 NY Slip Op 52458(U) (N.Y. App. Term, 2nd Dept., December 27, 2007)

Gene Rosen represented a petitioner confirming an arbitration award. The Civil Court modified the award to deduct legal fees awarded by the arbitrator and confirmed the award as modified. The petitioner appealed. The Appellate Term reversed and reinstated the legal fees in favor of Gene Rosen’s client.