Upon the unification of East and West Germany, the Treuhandanstalt ("Treuhand") was created to privatize the East German holdings. In this action, we represented the United States joint venture company and the joint venture corporate partner in an action filed in the United States District Court for the Southern District of New York against the Treuhand, the German Democratic Republic joint venture partner, a state created entity exclusively responsible for the import and export of East German machine tools, and the liquidator assigned by the Treuhand. We sued for breach of fiduciary duty, breach of contract, and other relief. Defendants moved to dismiss the complaint, claiming immunity under the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1602 et seq. (FSIA) and the Act of State Doctrine. In a decision of great significance, the District Court held that, under the "commercial activity" exception to FSIA immunity, the Treuhand could be sued here, and that the Act of State Doctrine did not preclude our clients' claims against the Treuhand and the former East German entity.

United States v. Farley, 202 F.3d 198 (3rd Cir. 2000), cert. denied 531 U.S. 1111, 148 L.Ed.2d 769, 121 S.Ct. 874 (2001).

The Internal Revenue Service sued our clients to recover tax refunds that had been paid. The taxpayers owned two S corporations that became insolvent and had debts discharged after the corporations’ properties had been foreclosed upon. We argued that under the applicable tax statutes, the discharge of debt increased the basis of the S corporation stock resulting in losses that had been previously suspended. We contended that recognition of these losses reduced the taxpayers’ tax liabilities over a number of years entitling them to the refunds that they had received. Both parties filed summary judgment motions before the District Court and the Court held for the IRS. On our appeal for the taxpayers, the Third Circuit reversed the District Court and held for our clients. This issue had been split among the various Circuit Courts of Appeals, until the recent United States Supreme Court decision in Gitlitz v. Commissioner, 531 U.S. 206, 148 L.Ed.2d 613, 121 S.Ct. 701 (2001). In Gitlitz v. Commissioner, the Supreme Court found in favor of the taxpayers, citing the Third Circuit decision in United States v. Farley.

In re Robert G. Bushnell, 271 B.R. 54 (Bankr. D.Vt. 2001), appeal dismissed, 273 B.R. 359 (Bankr. D.Vt. 2001).

We represented the Debtor, as Special Counsel, in a Vermont bankruptcy proceeding. We challenged more than $165,000,000 in claims asserted by limited partner investors who charged the Debtor with violating the Racketeer Influenced and Corrupt Organizations Act ("RICO") 18 U.S.C. §§ 1961-68. In 2001, after enduring a complicated procedural history, which included our victory in the Bankruptcy Court in 1996 wherein the Bankruptcy Court granted our motion to dismiss the RICO claims on statute of limitations grounds, the reversal of that victory by the United States District Court for the District of Vermont, and our successful defense of RICO claimants’ motion to lift the automatic stay and pursue the Debtor in their District Court action pending in New York against other defendants, we moved again for summary judgment on statute of limitation grounds. The Bankruptcy Court granted our motion for summary judgment and dismissed the RICO claims, agreeing with us that under the recent United States Supreme Court decision in Rotella v. Wood, 528 U.S. 549, 120 S.Ct. 1075, 145 L.Ed.2d 1047 (2000), the claims were time-barred. The Bankruptcy Court rejected the RICO Claimants' contention that our client was equitably estopped from asserting the limitations defense. The Bankruptcy Court agreed with us that the RICO Claimants could not establish equitable tolling since, as a matter of law, they could not impute to our client the acts of fraudulent concealment allegedly engaged in by his partners. The RICO Claimants appealed the decision. The Bankruptcy Court subsequently granted our motion to dismiss the appeal on the ground that the notice of appeal was not timely filed.

Lawrence G. Williams v. United States of America, Internal Revenue Service, et al., 181 B.R. 1 (Bankr., D.R.I. 1995), modified 188 B.R. 721 (Bankr., D.R.I. 1995), aff’d as modified, 215 B.R. 289 (D.R.I. 1997), appeal dismissed, 156 F.3d 86 (1st Cir. 1998), cert. denied, 525 U.S. 1123, 142 L.Ed.2d 904, 119 S.Ct. 905 (1999).

We represented the debtor as Special Tax Counsel in a Rhode Island bankruptcy proceeding. We challenged $6,500,000 of tax claims filed by the IRS. We vigorously pursued discovery and believed the Government had withheld vital documents. We prosecuted a motion to preclude and for sanctions, which resulted in a three day trial. After trial, the Bankruptcy Court granted our motion and sanctioned the Government, requiring it to pay the Debtor’s legal fees. The Court found that the IRS "willfulness is as plain as it can be" and that its actions "were specifically calculated to impede plaintiff's attempts to obtain discovery material to which it was clearly entitled" The Government paid the legal fee sanction and did not appeal this aspect of the Order.

Regatta Condominium Association v. Village of Mamaroneck, et al.,303 A.D.2d 739, 758 N.Y.S.2d 102 (2nd Dept. 2003).

In a construction dispute, we represented an owner's representative in a lawsuit brought by a condominium association alleging construction defects. On appeal, the appellate court reversed the denial of our motion to dismiss and dismissed the complaint against our client. The appellate court held that the condominium association was not a third-party beneficiary of our client's contract with the owner.

Hudson v. City of New York, 267 A.D.2d 351, 700 N.Y.S.2d 67 (2nd Dep’t 1999).

We represented the administratrix of the estate of decedent. Decedent died of asthma while incarcerated at Rikers Island. We sued the City of New York for wrongful death. Over a period of three years, the City failed to produce decedent’s incarceration records, despite our discovery demands and two court orders compelling such disclosure. We moved to strike the City’s answer and for a default against the City. The lower court denied the motion, and instead precluded the City from calling witnesses to testify to any matter regarding decedent outside of the medical records the City had produced. We appealed, believing that the relief was not sufficient, and that the answer should have been stricken. The Appellate Division, Second Department, agreed and reversed the lower court, holding that the City’s conduct was "willful and contumacious" and that the lower court had "improvidently exercised its discretion" in denying our motion to strike the answer. The matter was remanded for an inquest on the issue of damages.

Richard M. Pell v. Michael Weinstein, et al, 759 F. Supp. 1107 (M.D.Pa. 1991).

Mr Riso represented the president and chairman of a public company in a federal securities fraud and RICO lawsuit. The District Court granted our motion to dismiss the complaint, finding, inter alia,that, as a matter of law, plaintiffs could not rely on alleged misstatements that occurred after the date they became contractually obligated to enter into the securities transaction. The court also found several legal infirmities with respect to the RICO claim, including the failure to allege that the culpable "persons" and alleged RICO "enterprise" were separate and distinct.

Lothar’s of California, Inc. v. Weintraub, 158 Misc.2d 460, 601 N.Y.S.2d 231 (Sup.Ct., N.Y.Cty., 1993).

Mr. Riso represented the defendant accountant in an action brought by plaintiff to recover a $90,000 contingency fee that had been paid to our client. Plaintiff contended that the contingency fee agreement was unlawful, arguing that a certified public accountant was prohibited by law from entering into a contingency fee agreement. Mr. Riso argued that the defendant provided the services not as a CPA, but as an agent for plaintiff. In the alternative, he argued that under equity principles, the Court should not provide relief to any party to an illegal contract. Therefore, since the contingency fee had already been paid, defendant argued that plaintiff was not entitled to an order requiring disgorgement of that fee. The lower court agreed and dismissed the complaint against our client, which dismissal was affirmed on appeal.

Beaver Street Associates v. Lady Liberty Tavern Corp., 94 B.R. 812 (S.D.N.Y. 1988).
The Plaintiff landlord had rented sidewalk level space to a restaurant, defendant tenant, pursuant to a written lease. When the tenant defaulted under the lease, the landlord sent the appropriate termination notices to the tenant as required by New York landlord/tenant law, and then commenced an eviction action in the Civil Court. In Civil Court the tenant defaulted, and the Court entered a Final Judgment of Possession and a Warrant of Eviction, which Warrant the Court stayed for five days. After the tenant failed to cure the lease defaults within the five day stay period, the Warrant was issued and was served on tenant pursuant to a 72 day notice. On the day of eviction, the tenant filed for protection under Chapter 11 of the Bankruptcy Code, which automatically stayed execution of the Warrant. Mr. Chinitz, representing the landlord, brought a motion for relief from the automatic stay before the Bankruptcy Court to evict the debtor-tenant from the space, on the grounds that the Civil Court had terminated the lease, the debtor did not have any right to remain in the space, and the automatic stay was therefore inapplicable. The Bankruptcy Court denied the motion, and the landlord appealed. The District Court, in a case of first impression, reversed the Bankruptcy Court and held that the Debtor’s interest in the lease had been properly terminated prior to the bankruptcy by the Civil Court’s Final Judgment of Possession, and that the landlord was entitled to evict the Debtor from the space.

WHITE COLLAR CRIMINAL DEFENSE

People of the State of New York v. Rosenblatt and Nahay, 277 A.D.2d 61, 717 N.Y.S.2d 9 (1st Dep’t 2000).

We represented ticket brokers charged with felonies under the New York Tax law for failing to collect and pay sales tax on the resale of tickets to sporting events. We moved to dismiss the indictment, contending that, as a matter of law, the Tax Law did not impose sales tax on the resale of a ticket. The motion was denied, and the defendants were subsequently convicted after trial of felony sales tax violations. After verdict, and prior to sentence, we moved to set aside the convictions, extraordinary relief that is rarely granted. We argued that the trial court was no longer bound by the earlier ruling that had denied our motion to dismiss the indictment. The trial court agreed that it could review the issue, agreed with our interpretation of the Tax Law, and set aside the convictions. The People appealed, and the Appellate Division, First Department, affirmed the trial court’s decision.

MATRIMONIAL

Hougie v. Hougie, 261 A.D.2d 261, 689 N.Y.S.2d 490 (1st Dept. 1999).

Representing the Wife at the trial and appellate levels, this landmark decision of the Appellate Division, First Department, affirmed the lower court decision which held that the career skills of an investment banker, acquired during the marriage, and which resulted in the ability to earn exceptional income, was to be valued and distributed as a marital asset. The court held that such career skills were to be treated no differently than the acquisition of a professional degree or license during the marriage.

Given the case law authority that held that enhanced earnings, generated by reason of a professional degree or license acquired during the marriage, was "property" for equitable distribution purposes in a divorce action, we demonstrated the inherent inequity of applying a rule of law that sought to impose dramatically different results in financially similar cases.

Missett v. Missett, 125 A.D.2d 275, 509 N.Y.S.2d 815 (1st Dept. 1986).

Representing the Husband at the trial and appellate levels, the Appellate Division, First Department, affirmed the lower court decision which granted our client summary judgment, dismissing the Wife’s attempt to re-write the parties’ separation agreement in such a way as to entitle her to share in the sale of the Husband’s investment partnership interests.

During discovery we located and produced the 20 year old draft agreements, which substantiated that during the negotiation of the parties’ separation agreement (prepared by other counsel), the Wife released her claims to share in the type of assets she sought to lay claim to in her current action.

Kaltenbach v. Kaltenbach, 121 A.D.2d 689, 504 N.Y.S.2d 452 (2nd Dept. 1986).

Representing the Husband at the trial and appellate levels, the Appellate Division, Second Department, substantially affirmed the trial court decision, after a lengthy equitable distribution trial, awarding the Wife of 15 years 20% of the Husband’s business interests, and three years of maintenance, but reversed the trial court, holding that the parties’ joint income tax liabilities be satisfied from marital assets, rather than being the sole responsibility of the Husband.

Lobatto v. Lobatto, 109 A.D.2d 697, 487 N.Y.S.2d 326 (1st Dept. 1985).

Representing the Wife at the trial and appellate levels, the Appellate Division, First Department, affirmed the lower court decision, holding in one of the first comprehensive opinions following the passage of the Equitable Distribution Law, that equitable distribution mandated a searching inquiry into the parties’ finances throughout the entire 20 year length of the marriage.

The Husband was directed to comply with detailed financial discovery of his complex real estate holdings, especially since the Husband claimed those assets to be his separate property. The complexity of the case and the Husband’s unsubstantiated claims justified a detailed tracing of the Husband’s finances.