Construction Defects, Frydman LLC, Nuisance, Real Estate Litigation, Trespass
Frydman LLC recently won a motion for summary judgment dismissing a complaint that raised significant allegations and sought relief that could have cost our clients millions of dollars. One Frydman LLC’s areas of practice concentration is real estate litigation, and this case involved serious allegations of construction defects and related claims. In an eighteen page decision, the Court dismissed the claims as meritless and time barred. The dismissal allows our client to avoid trial and removed claims that, if successful, could have led to millions of dollars of construction costs and damages.
Our clients purchased a five story townhouse in New York City and performed a stunningly beautiful gut renovation. The demolition left little more than the front façade and floor joists and the home is now modernized and stylish. Several years after completion of the renovation, their neighbor brought a lawsuit alleging that the work was defective, impermissibly used the party wall between the buildings and undermined the structural integrity of the adjacent building. The claims included nuisance, trespass, property damage, construction defect and Building Code and Zoning violations. The relief demanded would have required demolishing and rebuilding much of the home and also unspecified monetary damages.
Obtaining the complete dismissal of all claims necessitated two dispositive motions. The first tranche of the dismissal occurred on the appeal of our pre-answer motion to dismiss the complaint, which the First Department Appellate Division granted in large part. The appellate court rendered a written decision upholding a Statutes of Limitations defense and finding many of the claims failed to state a valid cause of action.
We then proceeded with fact discovery in which six subpoenas were served on construction professionals and others, nearly 10,000 pages of documents were exchanged and eight depositions were conducted, including of all parties and the main professionals on the project – the project architect, project engineer, inspecting engineer and general contractor’s project manager. Frydman LLC successfully obtained an order compelling plaintiff to produce the electronic files of contemporaneous digital photographs plaintiff took of the renovation work, with crucial metadata that provided the dates the photographs were taken. We successfully defended plaintiff’s barrage of motions – eleven in total, including two motions to the Appellate Division. Frydman LLC also successfully obtained Court orders repeatedly sanctioning plaintiff for discovery failures and frivolous conduct in the litigation. .
At the close of discovery, we moved for summary judgment dismissing the remaining claims. Our motion was supported by eight affidavits, including affidavits from two expert witnesses, extensive deposition testimony and over thirty record exhibits, including the metadata from plaintiff’s own photographs. Following extensive oral argument, the Court issued its eighteen page decision granting our motion in its entirety and dismissing the complaint with prejudice. The Court held that we supported our motion with sufficient evidence of a lack of construction defects, a lack of infringement of plaintiff’s rights in the party wall, a lack of code violations and affirmative proof that many of the claims were also time barred. We are very pleased to secure a total victory for our clients, allowing them piece of mind in their home and vindicating their position all along that the project was 100% compliant and of sound construction.
Frydman LLC
Frydman LLC is pleased to announce that David Frydman has been selected to the 2019 America’s Top 100 Bet-The-Company Litigators list, an honor reserved for nation’s most exceptional trial lawyers for high stakes business litigation matters. Less than .5% of lawyers receive this honor. David’s selection recognizes his career long success representing clients in their high stakes business litigation. David’s selection is the result of third-party research or peer nominations by other elite attorneys and limited to the top 100 litigators in New York. Being named to the Bet-The-Company Litigators cements David’s position as a top New York business litigator.
Please do not hesitate to contact us to learn more about David’s practice and how Frydman LLC can help you in your business dispute.
Frydman LLC
Frydman LLC is pleased to announce that David Frydman has been selected to the 2019 New York Super Lawyers list, an honor reserved for no more than 5% of New York lawyers. David’s selection recognizes his tremendous work and success representing companies, individuals, funds, investors and real estate professionals in various forms of business litigation. David’s selection is the result of Super Lawyers’ independent research evaluation along with peer reviews by fellow attorneys against whom David litigates against on a daily basis. Being named to the Super Lawyers list cements David’s position as a top New York litigation counsel and advisor.
Please do not hesitate to contact us to learn more about David’s practice and how Frydman LLC can help you avoid a potential business conflict before it gets to litigation or resolve an already developed dispute.
Arbitration, Business Divorce, Faithless Servant, Fiduciary Duty, Frydman LLC
Frydman LLC recently secured a multi-million dollar recovery for our client in an arbitration claim against a former partner. One of FLLC’s practice concentrations is “business divorces,” where one or more partners leave a company. Our client was a 50/50 member with his business partner in a real estate development company in the New York City metro area. The company had successfully co-developed a sizeable residential project and was advancing a co-development of a large ground up mixed-use project. The partners accused each other of misconduct, and ended up bringing claims against each other pursuant to an arbitration provision in the company’s operating agreement. On behalf of our client, we alleged causes of action including breach of fiduciary duty and usurpation of corporate opportunity, claiming the former partner abandoned the company and cut out our client by co-developing the mixed-use project through a different entity – one wholly owned by the former partner.
Discovery in the arbitration was hard fought, eventually leading the Panel to appoint a “Big Four” accounting firm to act as electronic discovery master. We engaged in repeated discovery motion practice and, after months of document discovery disputes, engaged in the exchange of approximately twenty gigabytes of electronic data, comprising well over 100,000 documents. After completion of depositions of the parties, we conducted a two week arbitration hearing before the three member arbitration Panel. The hearing included the testimony of seven witnesses, some 300 exhibits and extensive closing argument. We also engaged in months of post hearing briefing, amounting to over 120 pages of fact and legal argument.
In its reasoned twenty-one page Award, the Panel granted our client’s claims and dismissed the claims of the former partner. The Panel found that the former partner stole the mixed-use development project from the company, cut out our client and acted as a “faithless servant.” Among other relief, the Panel awarded our client $400,000 of punitive damages based upon the former partner’s egregious breaches of fiduciary duty, assessed discovery costs against the former partner for electronic discovery violations and placed the contested interest in the mixed-use project in a constructive trust for the benefit of the company and our client. We successfully confirmed the Award in New York State Court, which entered judgment on the Award.
After a formal mediation and months of negotiation, the parties recently closed a settlement whereby our client kept the company and its interest in the completed residential project, and the former partner kept the interest in the mixed-use project while making a multi-million dollar cash settlement payment to our client. Although the resolution took a number of years and much intensive work, we are gratified that our client was vindicated and justly received significant compensation.
Prior results do not guarantee a similar outcome.
