Recent Events

Guararra & Zaitz Obtains Near Full-Value Settlement for Electric Supplier

In December 2007 the firm completed a settlement for its client, a New Jersey retail electric supplier, that resolved an action brought by the firm on the supplier’s behalf in 2006 against four Manhattan commercial property owners.  The suit alleged that the supplier had provided electricity through Con Edison’s retail choice program to each of the property owners during 2005-06 for which it had not been paid.   The case was settled without the need for extensive discovery -- after the firm received from Con Ed, via subpoena, documents reflecting the property owners’ electric usage and the source of the electricity, and it took the deposition of a Con Ed representative corroborating those documents.  The settlement reached resulted in the client receiving over 96% of the amount claimed in the suit.

Guararra & Zaitz Obtains Summary Judgment Dismissing A Strict Product Liability Claim Against the Manufacturer and Seller of a Gas Range  

On June 7, 2007, the Supreme Court for Queens County dismissed the complaint brought by a user of a gas range against the firm’s client, the manufacturer and seller of the range.  The plaintiff claimed she suffered burns and cuts over her body when, in the course of cooking at her family’s home, there was an explosion in the range that caused the glass from the oven door to fall out and onto her body.  The plaintiff claimed that the firm’s client was liable for manufacturing, selling and repairing an allegedly defective range in that there were several prior explosions that caused the oven door glass to fall out.  To avoid a trial, the firm moved for summary judgment to dismiss plaintiff’s claims for strict product liability and negligence.  In its decision the court dismissed all of plaintiff’s claims in finding that the defendant had sustained its burden of showing that the range was not defective.  The court agreed with the firm’s arguments that the evidence showed that the range could not have exploded and that plaintiff’s claimed defects in the range or cause of the alleged occurrence were unsupported and speculative.

Guararra & Zaitz Prevails on Two Property Use Appeals

On February 27, 2007, the New York Appellate Division, Second Department, affirmed the Supreme Court’s grant of summary judgment for two firm clients in two separate actions involving an apartment building that was subject to restrictions as to non-residential use located in a privately owned Queens County community.  In one of the cases, the firm’s client, a private homeowners’ association charged with enforcing the restrictions, brought suit against an owner that had threatened a non-residential use -- the development of medical office in the building’s basement.  The Supreme Court agreed with the firm and issued permanent injunctive relief against the threatened use and the Appellate Division has now affirmed.
                            
In the second action, in which the firm represented the tenants in that same building, the owner had brought suit seeking to prevent the tenants from using the building’s basement for storage purposes so that the owner could use that space for the proposed medical offices.  The firm obtained a dismissal of that action, which has now also been affirmed by the Appellate Division in this case, on the basis that the owner had not exhausted its administrative remedies.  That decision leaves the tenants free to continuing using the space as they had been doing.

Guararra & Zaitz Obtains Defense Verdict At Trial

On November 21, 2006, a jury in the New York Supreme Court in Nassau County rendered a unanimous verdict for the firm’s client, a building contractor, after a 4 day trial. Plaintiff, an elderly shopper at a department store, claimed that she tripped and fell over a raised binding where the edge of carpeting met the tile floor. The contractor had installed the carpeting and binding more than 2 ½ years prior to the alleged accident to the satisfaction of its customer, the store owner, also a defendant in the lawsuit. Plaintiff, who sustained wrist and shoulder fractures, had a settlement demand of $250,000. The firm successfully showed to the jury that plaintiff had not proven that an unsafe condition existed at the store at the time of her accident, resulting in the verdict for the firm’s client.

Court Denies Request for Judgment Against Supplier to Government Agency of the Republic of Korea

By order entered on October 12, 2006, the New York State Supreme Court, Nassau County, denied a request for summary judgment made by a Dutch manufacturer of turbine engines against the firm’s client, an approved supplier to the Defense Procurement Agency of the Republic of Korea. In defending the motion, the firm argued that since one of the multiple writings between the parties to the suit required that Dutch law be applied to any dispute between them, the Dutch supplier’s failure to cite any Dutch law in support of its argument that an enforceable agreement existed between the parties mandated denial of the motion. The court agreed and ordered that the case proceed to discovery.

Guararra & Zaitz Obtains Summary Judgment For A Building Contractor In Trip and Fall Case

On October 10, 2006, the New York Appellate Division, Second Department affirmed the Supreme Court’s grant of summary judgment dismissing claims brought against the firm’s client by an individual who sought to recover for injuries resulting from a fall that was alleged to have occurred on a ramp in a large retail store. The Plaintiff had claimed that the firm’s client, a contractor, was negligent in its renovation work in the store and had created a bump on the ramp on which she allegedly fell. The firm successfully showed, in the motion for summary judgment brought at the close of discovery, that there existed no issues of fact requiring a trial on the issue that the contractor had not created the alleged bump. The Appellate Division agreed and affirmed the Supreme Court’s dismissal of Plaintiff’s claims as against the contractor.

Court Allows Derivative Action Brought Against Investment Banking Firm Owners to Proceed

On July 17, 2006 the Manhattan Commercial Division of the New York State Supreme Court issued a decision and order that let stand most of the derivative claims brought against an investment banking firm by Guararra & Zaitz on behalf of a minority owner of the investment firm. The order was the result of a motion to dismiss brought by the defendants to the action.

The complaint in the action alleged, among other things, that certain of the individual members of the firm, while holding themselves out as comprising the firm’s board, engaged the firm is a series of restructurings and acquisitions designed to strip the firm of its wholly-owned broker-dealer and divert from the firm’s members the revenues generated by the broker-dealer. The court rejected the arguments made by the defendants that the plaintiff had no standing under Delaware law to bring the derivative action and that the documentary evidence submitted to the court by the defendants proved that the transactions in question had been authorized by the firm’s operating agreement and a vote of the firm’s board.

The court’s decision means that the plaintiff will likely have an opportunity to examine the financial records of the investment banking firm and those that were involved in the questioned transactions so as to be able to determine the extent of the revenues that may have been diverted.

Guararra & Zaitz Obtains Dismissal of Complaint in Product Liability Action

On June 28, 2006 the Supreme Court, Kings County, granted a motion to dismiss brought by Guararra & Zaitz on behalf of a client of the firm, an Alabama corporation that had been sued in New York in connection with a workplace injury suffered by the plaintiff in Brooklyn. The injury to the plaintiff, the amputation of several of his fingers, was caused by a cutting machine that the plaintiff alleged had been defectively designed. The machine had been fabricated by the Alabama company at its Alabama facility in 1987.

In the motion to dismiss, Guararra & Zaitz argued that its client was not subject to the jurisdiction of the New York courts in the action because it had no offices, plants or employees in New York and had not itself sold the cutting machine directly into New York, but had merely supplied it to another non-New York corporation. Guararra & Zaitz argued further that under New York law, the Alabama company’s mere placing of the cutting machine into the stream of commerce was not enough to subject it to suit in New York. The Court agreed and dismissed the complaint as to the Alabama company.

Guararra & Zaitz Obtains Dismissal Of Request to Compel Production of Records of Homeowners’ Association

On May 1, 2006 the Supreme Court for Queens County issued an order dismissing an Article 78 petition brought by a homeowner under the New York Not-For-Profit Corporation Law seeking disclosure of the board meeting minutes and financial records of a private homeowners’ association represented by Guararra & Zaitz.   In granting the firm’s motion to dismiss, the court affirmed the firm’s analysis and held that homeowners’ associations were not required to provide documentation to homeowners not specified under the Not-For-Profit Corporation Law.  The court stated in its decision that homeowners should not be permitted to engage in fishing expeditions of such associations’ governance.   The decision affirmed the ability of such voluntary associations to operate in the normal course of business without undue scrutiny of its members.

Guararra & Zaitz Obtains Order Upholding Validity of Homeowners’ Association Building Restrictions

On April 25, 2006, the Supreme Court for Queens County, at the request of a Forest Hills, New York private homeowners association represented by the firm, issued a permanent injunction against homeowners who were threatening to build an extension to their home in violation of covenants that restrict the use of property located within the boundaries of the association. This injunction made permanent a temporary restraining order that had been in effect since November 2005.

In addition to obtaining this injunctive relief, the firm won a judgment on the association’s motion for summary judgment seeking dismissal to a challenge made by the homeowners to the enforceability of the association’s covenants and restrictions.  This early dismissal helped achieve significant cost-savings for the association by avoiding the necessity for it to engage in expensive pre-trial discovery proceedings.  The firm also believes that the legal authority set by this decision will likely prevent other homeowners in that community from engaging in conduct that would violate the covenants and restrictions that create and help maintain the essence of the nature, character and design of the community.

Guararra & Zaitz represents a number of prominent homeowners’ associations for private communities in the New York City area.