Commercial Litigation in New York:

The term “commercial litigation” is an all-encompassing expression of any type of business litigation. In the course of my practice, I am engaged in many different areas of commercial litigation, which means one business suing another business for money. A lawsuit starts with a summons and complaint. The next step is that there will be an answer from a lawyer or a defendant in person. We then commence discovery proceedings. The objective is to obtain evidence which will help you prove your case against the defendant, whether it be that they violated a covenant not to compete, failed to pay for services rendered, or for goods sold and delivered, or another business issue.

Discovery requests must be issued in order to obtain the response that you are looking for, and occasionally you may have to make applications to the court to compel defendants to supply information they are reluctant to supply. In a civil lawsuit, every participant is required to supply all the material they have pertaining to a specific case, provided the other party has requested it. The standard for discoverable information is all documents or information material and necessary in the prosecution or defense of an action, which is a broad standard. Civil trials are supposed to proceed without surprises. Civil discovery rules are very liberal.

Sometimes people refrain from providing the other side with legitimate evidence. In this instance, you’ll need a lawyer who knows how to ask the correct questions to obtain the materials you need for your individual case. When one party refuses to produce legitimately discoverable material, the other party has to make a motion to compel production or sanction a defendant for failing to make an appropriate production.

In one case a recalcitrant Defendant was so vigorous in denying any knowledge of the facts that he answered 57 questions at a deposition with “I don’t know,” or “I don’t remember.” Eventually, after conducting post-judgment enforcement proceedings and suing his wife as the recipient of his fraudulent conveyances, we were able to settle the case for our client’s benefit.

General Civil Litigation in New York:

In the course of my practice, over 40 years, there have been many different types of civil litigation that I’ve engaged in. This type of litigation includes family court litigation, personal injury litigation, copyright infringement litigation, landlord/tenant cases, cases disputing entitlement to estates, typically disputes between siblings, real estate litigation, title insurance litigation, matrimonial and business partnership breakups. I have experience in all of these types of cases, working for both plaintiffs and defendants. Each type of legal representation has different goals, and I can work to represent either party. The most important thing for the best possible representation is candor between the client and the lawyer and preparation by your attorney throughout the representation. Please, no surprises.

These cases are very fact specific. I encourage prospective clients to prepare and submit to our office a summary of the facts, so that we can propose a plan for litigation and a fair legal fee.

Debt Collection Litigation in New York:

I have been engaged in debt collection litigation for more than 40 years. I doubt there are any debtor strategies I have not seen before. The objective in debt collection litigation is to proceed as vigorously as possible to keep the pressure on the debtor. Sometimes the debtor will try to settle the case if the pressure is unrelenting, or if I as the creditor’s attorney present a risk to the potential liability of family members, such as when the debtor has made fraudulent transfers to his/her family. My main advice here: keep copies of checks paid by the debtor to your company, and do not wait more than three months after the debt remains unpaid to refer the claim to our office to collect.

Debt collection litigation makes up 70% of my practice, and involves commercial clients suing for balances due or professionals seeking to recover for services rendered. If a business does not pay for goods received, the objective becomes to sue and collect as quickly as possible. The sooner one gets a judgment against a functioning business, the sooner the money can be collected. If a debt appears uncollectible by a business, I advise the client to contact me as soon as possible, before their debtor goes out of business. When economic conditions are bad, businesses go under, and if you want to collect successfully, it’s important to act quickly. A lawyer may be able to issue subpoenas for monthly bank statements, checks, customer lists, or other information that can help you to collect the money that you are due.

New York Judgment Enforcement:

This is an area of the law we are most expert at. We often need to examine debtor’s bank records to trace funds to fraudulent transferees. This is in the nature of forensic accounting.

One technique business debtors employ is to close one corporation and open another corporation that is doing the same or a similar business.  It takes creativity to demonstrate to the court that the second business is really just the alter ego and successor in interest to the initial debtor business. Sometimes examining the debtor’s bank records is not enough. In addition, a deposition may need to be conducted of the debtor’s principal to help establish successor liability. The investigation may turn up improper transfers to the principal or to family members.

For many small corporations I have observed that the principals use the corporation’s bank account as their personal checking account, paying such things as their home mortgage, yacht club membership, boat dock fees, a girlfriend’s rent, and other personal expenses. These types of expenses may be considered fraudulent transfers that should establish the personal liability of the transferor, and if the transferee is a family member, possibly the liability of the transferee.

In a recent case I noted from bank records that payments of approximately $40,000 were made to the debtor’s principal’s son, who was engaged in a completely separate business. At a deposition I questioned the debtor’s principal about the basis for those payments, and his answer was at best sketchy. I told the man that I had a viable cause of action against his son as a fraudulent transferee. His attorney must have advised him similarly, for within two weeks the case was settled. The principal did not want me to sue his son.

I have another interesting case presently on appeal, where the principals of the debtor business contributed money to their pension plan after my client’s cause of action for unpaid rent arose.

I contend that makes the individual transferors personally liable, such that the pension fund, and the ultimate recipient of the funds, the individual pension funds of the principals, should be required to disgorge those funds to pay a creditor. That relies on the New York law concept that in the first instance a corporation is a trust fund for the payment of debts to its creditors. By failing to pay my client, an unrelated creditor, before paying themselves by contributing corporate funds to the pension fund, the corporate debtor and its principals violated New York law. When that case is decided by the appellate court, I will be sure to report the result.

So, the point is to find the debtor’s pressure point and hone in on it to try to get the debtor to pay my client.

Once you have a judgment, there are many steps you can attempt to take to enforce the judgment, such as restraining notices to bank accounts or to anyone who may potentially owe the debtor money. With the proper representation, you can step between anyone who owes the debtor money and the debtor themselves, so that you can collect on your judgment and receive the money that you’re owed. An attorney may also be able to access money that has been placed in mutual funds or other accounts, so that you can receive the money that’s owed to you. The law permits Turnover Proceedings to stop anyone who owes your debtor money from paying that debtor and have that money come to you instead. This is a great device and is very frequently successful.

Collections of Out-of-State and Foreign Judgments:

I also emphasize in my practice collecting out of state and foreign judgments on my clients’ behalf. If a judgment was obtained in another state by a lawsuit, then that judgment can simply be docketed in the State of New York and enforced as if it were a judgment of the State of New York. However, if the judgment from the other state was obtained on a default, then that judgment has to be sued on again here in New York.

Foreign judgments may require an Apostille of the judgment in order to collect. An Apostille is a formal document issued by a foreign government to authenticate documents. My firm has experience with this type of foreign judgment, and can help you collect on your judgment, whether it’s based overseas, in another state, or in the state of New York.

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Post Judgment Litigation in New York

Post judgment litigation is a very comprehensive subject, with a nearly unlimited number of steps that one can take to enforce a judgment. Once a judgment is obtained, some litigation may involve trying to prevent the defendant from getting the judgment vacated. As the creditor’s attorney, I can work to show that the defendant intentionally defaulted, which is a barrier to obtaining the vacatur of a judgment. The idea is to demonstrate that the defendant was aware of the lawsuit, so that he/she should have no excuses to justify the court’s use of its power to relieve the defendant from the judgment. Once again, the objective is to help ensure you receive the money that you are owed. My firm has had great success with fraudulent conveyance actions, turnover proceedings, and other ways to get your business the money that is currently outstanding.

Construction litigation in New York

I have represented clients as subcontractors of money owed by the New York City School Construction Authority to general contractors. Sometimes, it requires suing both the contractor and the surety company that has bound itself to step in the shoes of the contractor, both to finish the job (Performance Bond) or to pay the subcontractors (Payment Bond). New York’s Lien Law has a provision that protects subcontractors, Article 3 –A, whereby the principals of a contractor are not allowed to divert funds from the project to themselves without potentially incurring personal liability. That section of the Lien Law adds additional pressure to contractors to pay the claims of subcontractors, but even if they don’t, on jobs with a public authority, the Payment Bond from a substantial insurance company assures there will be payment on successful claims.

Copyright Infringement Claims and Collections:

When you learn that a party has infringed on your copyright, whether in the written word, artwork, or other forms of copyrightable material, you have the right to file a claim to recover either actual damages or statutory damages. If you can show that it was willful infringement, you can sometimes receive increased damages. Federal Courts are quick to protect a copyright holder, as long as you have a protected copyright. My firm has extensive experience with copyright law, and I can work with you to help you reach a settlement. I’ve worked with companies such as The Walt Disney Company and Hearst Publications to protect their copyrights and recover damages for copyright infringement.

Representing Creditors in Bankruptcy Court:

Once there is a bankruptcy filing, there is a subset of actions that you can take in bankruptcy court, known as adversary proceedings. These proceedings work to prevent the discharge of specific debts, or to prevent the debtor from obtaining a bankruptcy discharge at all. Debts that may not be dischargeable include debt to an ex-spouse, or the attorney who rendered legal services to the ex-spouse, debt that arises from the debtor’s use of false pretenses, or from willful or malicious injury to a person or the property of a person or entity, or debts arising from fraud, embezzlement or larceny.

Trials, Depositions, and Arbitration Proceedings in New York:

One of the most important qualifications recommending a trial lawyer is for the attorney to be ready, willing, and able to go to trial if a case cannot be settled prior to trial. Trials are like plays; they have to be prepared for in advance. A good lawyer knows this, and carefully plots out the order in which the evidence and witnesses will be introduced, the anticipated cross-examination of the opposition’s witnesses, and more. The preparation for a trial starts at the beginning of a case, and continues as discovery is obtained from the opposition.

Civil cases begin with a summons and complaint. The defendant then files an answer to the complaint, either an affirmative defense or an affirmative defense and counterclaims. Once the plaintiff’s attorney receives a response from the defendant or the defendant’s attorney, the discovery process can begin. The discovery process consists of the exchange of information. In a civil case, the courts encourage very liberal discovery phases, so that there are few surprises at trial. As soon as the discovery process begins, the attorney is helping you to prepare for trial. Attorneys can collect documents, evidence, or conduct oral depositions to help you prepare to present your case.

Sometimes a deposition will reflect contradictions from the formal answer, as to quality of services, products purchased, conversations that may have resulted in oral agreements, and more. A good attorney will be able to catch these discrepancies and use them to their advantage in front of a judge or jury.

Matrimonial and Family Court Matters in New York:

Matrimonial cases and family court issues are often nasty and sometimes take years to resolve. The judges are overwhelmed with a large volume of cases and adjournments of periodic court conferences are common. When custody of children is an issue, psychologists may be necessary to provide their opinion as to the most suitable parent in the best interest of the children. Since the expenses of extended divorce and custody matters are often substantial, it is important for an attorney to assess early on how the case is likely to be resolved after a trial, and try to obtain an equivalent settlement as soon as possible. Of course, that requires all the parties and their attorneys to be reasonable. Our office strives for that approach and we frequently advise clients to compromise to save time, money and ill will.

Over the years of my practice, I have represented clients in various divorce cases. New York has recently added no fault divorce as grounds for divorce, and the court will allow a divorce as soon as child custody and the equitable distribution of the couple’s assets are resolved. In divorce cases, everything becomes a financial battle. The discovery process in a matrimonial case involves learning about the assets of each spouse, so that they can be divided fairly. The longer the marriage, the more likely it becomes that the assets are divided 50/50 between each partner. Assets are divided into separate property, not subject to equitable distribution, and marital property that is subject to equitable distribution. The court requires a statement of net worth, where each party is required to set forth their financial situation in writing, under oath. If a party has misrepresented the reality from the statement of net worth, this becomes a problem over the course of the case, and the party can be penalized.

Landlord Tenant Cases:

I have a great deal of experience in landlord tenant cases. I most frequently represent the landlord, who seeks to evict the tenant because the tenant is disruptive or non-paying. Until a tenant is evicted, they have the right to come up with payment if there is a lease in effect. If there is no lease, the landlord can serve a thirty day notice and file a holdover proceeding, which usually results in a fairly quick eviction. Courts do have the power to extend the tenant’s stay in the premises for up to one year to avoid homelessness, but these cases are very rare.

In these types of cases the courts uniformly extend adjournments to the tenant, so it is important to proceed aggressively and keep the systemic leeway given to the tenant to a minimum. Once the eviction is accomplished, it may be appropriate to sue the former tenant in a collection action, but only if the business tenant is still viable, if there is a personal guarantee from the principal of the business, or if the individual tenant has a job or assets known to the landlord. Otherwise, I discourage post–eviction collection litigation. The likelihood of collection without some viable information about the tenant is slim. If you cannot pay your rent, you may well be uncollectible.

Real Estate Contracts and Closings:

I represent clients involved in the purchase or sale of real estate. Mortgage applications and clearance of title can become cumbersome, and my firm is willing to help you sort out the details. If the seller of the property has outstanding liens, has failed to get an appropriate permit for construction, or other issues, I can help you find and clear up these issues. It’s best to clear up these problems as soon as they’re observed, to prevent future issues with your new property.