The firm represented Plaintiffs in a property dispute involving the use of a private right of way on the Alexanders’ land. The Plaintiffs brought the action under Article 15 of the N.Y. Real Property Action and Proceedings Law to declare the extent of the parties’ interests in the disputed roadway, which traverses the Plaintiffs’ property... READ MORE
Young/Sommer won an appeal for the City of Ithaca (Tompkins County) in a zoning dispute over the proposed expansion of a parking lot at a “non-conforming” apartment building. Avramis’ four unit, twelve bedroom apartment building houses college students in an area of the City zoned for one and two-family dwellings only. The building had four... READ MORE
The firm represented the Backiels, owners of undeveloped lakefront property. An unpaved driveway, built in the 1970s, connects the Backiel property to a public highway. The driveway meanders through the woods over the property of two of the Backiels’ neighbors before it reaches the lake. The Backiels secured an agreement with one of the neighbors... READ MORE
The firm prevailed for Plaintiffs in a land boundary and title dispute involving property of three different parties in rural Greene County, New York. Following a five-day non-jury trial, Acting Supreme Court Justice Roger McDonough ruled on April 22, 2013 in favor of Plaintiffs in two consolidated cases (Meyer v. Bozzetti, No. 08-0938; Bozzetti v.... READ MORE
Case 02-E-0362, Flat Rock Wind Power LLC, Order Granting a Certificate of Public Convenience and Necessity and Providing for Lightened Regulation (Section 68) (issued June 17, 2004)
Case 04-E-0643, Flat Rock Wind Power LLC, Order Providing for Lightened Regulation (Section 68) (issued December 20, 2004) (Light Regulation Orders)
The firm represented Petitioner in a proceeding at the Public Service Commission seeking a declaratory ruling that the transfer of certain ownership interests should not be reviewed pursuant to PSL §70. The Commission issued a declaratory ruling finding the Petitioner’s argument persuasive and agreeing with Petitioner’s interpretation that the transaction should not be reviewed under... READ MORE
Case 07-E-0343, Marble River, LLC, Order Granting Amendment to Certificate of Public Convenience and Necessity (Section 68) (issued June 21, 2011)
Case 07-E-0462, Horizon Wind Energy LLC, Declaratory Ruling on Review of Transfer Transactions (Section 70) (issued June 26, 2007)
The firm represented Petitioners in a proceeding at the Public Service Commission seeking a Declaratory Ruling with regards to the application of Public Service law §70 to a certain transfer of Class B ownership interests and the application of the PSC’s precedential Wallkill Presumption. The Commission found that the joint Petitioners satisfied the Wallkill Presumption... READ MORE
Case 07-E-0888, Iberdrola Energias Renovables SAU, Declaratory Ruling on Review of an Intra-Corporate and Stock Issuance Transaction (Section 70) (issued September 20, 2007)
The firm represented the Petitioner seeking a declaratory ruling for an intra-corporate and stock issuance transaction. The transaction involved the Petitioner’s obtaining an indirect ownership interest (50%) in two wind farm project companies through an intra-corporate reorganization. Because the transaction did not affect the ultimate ownership of Flat Rock and Flat Rock II, the Commission... READ MORE
Case 07-E-1343, Marble River, LLC, Order Granting Certificate of Public Convenience and Necessity and Providing for Lightened Regulation (Section 68) (issued June 19, 2008)
Concerned Citizens of Cattaraugus County, Inc. v. Town of Allegany Planning Bd., et al., Sup Ct, Cattaraugus County, 2011, Index No. 79455
The firm represented the Respondents in an Article 78 proceeding involving the proposed construction of a 29 unit wind farm. The Plaintiffs’ challenged the Planning Board’s approvals for the wind farm, claiming a number of substantive errors under SEQRA and procedural mistakes. The Court ruled in favor of the Respondents, primarily finding that Plaintiffs’ lawsuit... READ MORE
In a case regarding the Plaintiffs’ ability to rent out vacant rooms in their home, the firm successfully represented the Defendant, Bonnie Belle Association, in obtained a ruling from the Court that the Plaintiffs’ plans for their property was not permitted within the homeowner’s association. The Court ruled that the Plaintiffs, as part of the... READ MORE
This a commercial landlord-tenant case in which the appellate court reversed the trial court, and granted the landlord summary judgment with respect to its claim for past due rent. The court found that the landlord’s notice of default was sufficient to provide the predicate for the lawsuit.
Daniel O’Connell, as Admin. of the Est. of Patrick O’Connell, et al. v. Clough Harbour & Assoc., LLP, No. 08-cv-569 (TJM/DEP), 2010 WL 1729333 (NDNY Jan. 15, 2010)
After extensive discovery proceedings in a case arising from the collapse of a state bridge, Mr. Hurst obtained summary judgment dismissing a wrongful death claim asserted against a private engineering firm that had conducted biennial bridge inspections pursuant to their contract with the State of New York.
The firm represented the defendants in this residential property dispute involving private covenants and restrictions in a homeowner’s association. In this case, a neighbor attempted to enjoin the demolition of a 1930’s era home on the shore of Lake Placid and stop the construction of a new home. The Appellate Division reversed the trial court... READ MORE
In this landlord-tenant case arising out of a shopping center lease, the Court awarded the landlord judgment on all claims, dismissed the tenant’s counterclaim and awarded the landlord damages based upon tenant’s breach of the lease.
The firm represented the developer-respondent, RFB, LLC. RFB and its contract-seller Kent Acres Development Co.,Ltd., who proposed to construct an approximately 280 residential condominium development project, with related infrastructure and a waste water treatment plant (“WWTP”), known as “Kent Manor”. The proposed development was located in the east-of-Hudson watershed for the City of New York.... READ MORE
G&K Iron Works, LLC v. Pyramid Management Group, Inc., et al., Sup Ct, Rockland County, 2013, Index No. 036415/2013
The firm successfully obtained an order dismissing a Lien Law foreclosure action instituted against a corporate client and obtained clarification of an often puzzling provision of the New York Lien Law. The Court found that under Lien Law Sections 9(2) and 44(3), the misidentification of the owner of the property upon which the lien was... READ MORE
Gas Land Petroleum, Inc. v. Friendly Service Armonk, Inc. and Sammy Eljamal, Supreme Court Westchester County, Index No. 56368/2013
The firm successfully obtained summary judgment for the Plaintiff in a gasoline supply contract dispute. The judgment was awarded against both the retailer and the individual guarantor of the contract. As requested by the firm, the Court left the issue of damages to be resolved at an inquest. The Court found that the defendant breached... READ MORE
The firm represented Plaintiffs-Petitioners Anthony Gellert and Alexander Gellert in a combined proceeding brought pursuant to CPLR Article 78 and CPLR §3001 seeking relief annulling and setting aside a May 2013 resolution of the Town of Livingston Planning Board extending a conditional plat approval for a residential subdivision known as the Manor of Livingston and... READ MORE
The firm successfully represented the Oneonta City School District (the “District”) before the Second Circuit Court of Appeals (“Second Circuit”) in a tuition reimbursement case brought under the Individuals with Disabilities Education Act (“IDEA”). This was an important decision for families and public schools dealing with tuition reimbursement issues under the IDEA as it reaffirmed... READ MORE
Harvest Ridge Associates Inc. v. Nesheiwat Estates, Sup Ct, Dutchess County, 2005, Index No. 5964/04
The firm represented the Defendant in a contract dispute involving the intent of an agreement made by Harvest Ridge Associates, Inc. and Nesheiwat Estates, Inc relating to the development of a subdivision. The firm prevailed on summary judgment, finding the argument that the contract was clear and unambiguous, persuasive and upholding its terms. The Court... READ MORE
Hayes, et al v. Ibraham Vazquez Enterprises, Inc., et al v. Economy Oil, et al, Index No. 2020-52632 (Dutchess County Sup. Ct.) (Acker, J.S.C.)
The Dutchess County Supreme Court recently granted a motion to dismiss brought by Young/Sommer LLC on behalf of two fuel oil suppliers that had been sued as third-party defendants under the Navigation Law and the common law of contribution and indemnity. The defendants/third-party plaintiffs had installed a faulty above-ground storage system in the basement of... READ MORE
Highview Estates of Orange County, Inc. v Town Bd. of Town of Montgomery, Orange County, 955 NYS2d 175 (2d Dept 2012)
The firm represented Taylor Holdings Group, Ltd/Taylor Biomass Energy in overturning a lower court judgment that annulled several state and local approvals that permit the development and operation of Taylor’s premier Biomass Gasification-To-Energy facility in the Town of Montgomery, Orange County, New York (Highview Estates of Orange County, Inc. v Town Bd. of Town of... READ MORE
In the Matter of Boro Recycling, Inc., v. The New York City Department of Consumer Affairs, et al., Decision and Order dated April 8, 2011 (Sup Ct, Kings County 2011) (Kings Co. Index No. 22559-10)
The firm represented Boro Recycling, Inc. (“Boro”). For approximately 26 years, Boro had been providing services exclusively to “dealers” and “distributors” of beer and carbonated beverages packaged in returnable deposit “beverage containers” governed by New York State Environmental Conservation Law (“ECL”) §27-1001 et seq., better known as the New York State “Bottle Bill.” Boro commenced... READ MORE
In the Matter of Lori Bergami, et al., v. Town Board Of The Town Of Rotterdam, et al., 97 AD3d 1018 (3d Dept 2012)
The firm represented Plaintiffs Lori Bergami and a group of neighboring property owners in a proceeding challenging the rezoning of property in the Town of Rotterdam. The property, located in a transition area between a residential neighborhood and commercial uses on NY Route 7, was rezoned at the request of the owner so that it... READ MORE
In the Matter of Stratis Contracting Corp., v. Town of Lewisboro, et al., 78 AD3d 1188, 911 NYS2d 667 (2d Dept 2010)
In this case, the firm prevailed in having Stratis Contracting Corp.’s petition for an Article 78 proceeding denied. The firm represented the Town of Lewisboro regarding the town’s advertisement for public bids for a public improvement project. The Petitioner argued that the town unfairly gave another contracting company an unfair advantage. The Court found that... READ MORE
In the Matter of the Application of Ten Towns to Preserve Main Street, et al. v. The Planning Board of the Town of Northeast, et al., Sup Ct, Dutchess County, 2013, Index No. 3816/2013
The firm successfully defended New York real estate developer Southern Realty and Development, LLC (“Southern”) in a State Environmental Quality Review Act (“SEQRA”) challenge to a supermarket development in the Town of North East. The Petitioners argued that the approving agency, the Planning Board of the Town of North East, should have required a full... READ MORE
In the Matter of the Application of Ticonderoga Property Development LLC, APA Order Granting Variance, 2005-261V, October 18, 2006
The firm represented Ticonderoga Property Development LLC in its application in the Adirondack Park for a variance from Appendix Q3 standards regarding sign regulations. TPD requested a 245 square foot sign over the entrance and a 20 square foot sign by the main Lowe’s access entrance. Although this was inconsistent with Appendix Q3 standards, it... READ MORE
In the Matter of the Arbitration between Fishkill Property LLC, et al., AAA Index No. 15 183 Y 0017611, Award Dated November 7, 2011
Island Park, LLC v. CSX Transportation, Inc., 2007 WL 1851784 (ND NY 2007), reversed, 559 F3d 96 (2d Cir 2009)
As the State moves to set the stage for high speed rail service, the rights of property owners whose access rights are affected by the closure of railroad crossings has become an emerging area of law. In this action, the firm represented a commercial nursery business that opposed the closure of a railroad crossing. The... READ MORE
The firm represented Lexington Realty Development Corp. and RFB, LLC in obtaining a judgment directing the Town of Kent to allow the Developers to participate in the Phosphorus Offset Pilot Program (“POPP”), which was established as part of the New York City Watershed (the “Watershed”) 1997 Memorandum of Agreement to facilitate new development in the... READ MORE
The firm successfully defended an appeal made by landowners who sought $400,000 in property damages allegedly stemming from the acts of wild beavers on the Defendants’ property. The Appellate Division, Second Department affirmed the Defendant-landowners’ entitlement to summary judgment dismissing the lawsuit, thereby confirming that the Defendants had no affirmative duty to remedy a natural... READ MORE
The firm represented Defendant homeowners, in an action commenced by their downstream neighbors for property damages stemming from the alleged flooding of their property, blaming a beaver dam located upon the Defendants’ property as the alleged cause. The Plaintiffs’ first sought a temporary restraining order and preliminary injunction ordering the removal of the beaver dam... READ MORE
Mr. Hurst, in pro bono case, obtained an order annulling and vacating for lack of substantial evidence a prison disciplinary determination and resultant thirty-six-month solitary confinement penalty.
The firm represented the plaintiff in a successful share holder derivative action and contract dispute involving the sale of commercial property in Westchester County, which plaintiff co-owned with the defendant as equal members of a limited liability company (LLC). The plaintiff and the defendant, jointly through their LLC, contracted with a third party commercial developer... READ MORE
Mr. Hurst obtained a decision granting media defendant’s special motion to strike and awarding costs pursuant to Louisiana’s SLAPP statute, Louisiana Code of Civil Procedure Ch. 971.
Mr. Hurst obtained a trial court order [not appealed] quashing a non-party subpoena issued by the District Attorney to a newspaper reporter seeking to compel production of unpublished notes and outtakes of the reporter’s exclusive jailhouse interview with a capital murder defendant.
Mr. Hurst obtained a decision annulling, on First Amendment grounds, a local ordinance requiring an electric utility to post signs on utility poles disclosing alleged health risks of preservative wood treatments.
Pyramid Walden Co. v. The Buffalo Unit, LLC, 48 AD3d 1089 (4th Dept 2008), affirming 2007 WL 7034890 (NY Sup 2007)
In this landlord-tenant case involving a shopping center lease, the appellate court affirmed the trial court’s award of summary judgment in the landlord’s favor. The court enforced the express terms of the lease, dismissed the tenant’s claims and defenses, and granted the landlord judgment for past due rent and attorneys’ fees.
As head of the firm’s Renewable Energy practice group, Jim Muscato is a leader in renewable energy project and policy development in New York, including wind, solar, hydro, biomass and emerging technologies, such as energy storage systems. Working in renewable energy development for 20 years, Jim continues to provide clients with strategic permitting advice and... READ MORE
Mr. Hurst obtained a favorable decision from New York’s highest court in a case of first impression decided upon Certified Question from the United States Court of Appeals for the Second Circuit (494 F.3d 99 ), defining and limiting the fiduciary duties of disclosure owed by certain classes of real estate agents to their purchaser-clients.
Russell v. Delaware Online, Civ. No. 15-794-SLR, 2016 U.S. Dist. LEXIS 80216 (D. Del. Jun. 20, 2016)
Mr. Hurst obtained a decision finding that a news report of a plaintiff’s arrest is protected by Delaware fair report privilege, denying a preliminary injunction request, and granting media defendant’s motion to dismiss the complaint.
In a case involving two towns in adjoining counties and three private parties, the firm protected the property interests of a client living at the end of a public highway by “use” in rural Allegany County. A court decision had erroneously extended the “public” portion of the road to include the client’s property. The firm... READ MORE
The Fort Ticonderoga Association v. The Assessor of the Town of Ticonderoga, et al., Sup Ct, Essex County, 2013, Index No. 410-2013
The firm successfully restored tax exemptions and obtained tax refunds for The Fort Ticonderoga Association, a not-for-profit corporation. This groundbreaking decision has important implications for New York not-for-profits and municipalities in determining whether the criteria for exemptions under the New York Real Property Tax Law have been satisfied. As a not-for-profit education corporation, the Association... READ MORE
Town of Henderson Town Bd. v. Town of Hounsfield Planning Bd., et al., Sup Ct, Jefferson County 2010, Index No. 2010-0336
In an Article 78 proceeding, the firm represented the Applicant for a proposed 82 turbine wind farm project in the Town. Petitioner sought to reverse, annul, and set aside Site Plan approval by the Planning Board of the Town of Hounsfield for the installation and operation of wind turbine generators on Galloo Island. The Court... READ MORE
Town of Northumberland, v. Del Signore Blacktop Paving, Inc. , Sup Ct, Saratoga County, Index No. 20084229
The firm represented the Town of Northumberland (the “Town”) in a breach of contract action with important implications for other municipalities in New York who must follow the state’s public bidding process to obtain municipal goods and services. The Town sued a paving contractor for breach of contract after the contractor placed a bid to... READ MORE
Village of Coxsackie v. Veolia Water North America – North East, LLC, Slip. Copy 2007, WL2667460 (ND NY 2007)
The firm represented the Village of Coxsackie (the “Village”) in a successful federal court action seeking to enforce a contract against a company hired to run its water and wastewater treatment facilities. The contract required the defendants to staff the facilities with the Village’s existing employees under a leasing agreement that required the Village to... READ MORE
The firm represented the Town of Delhi. The Village of Delhi commenced a combined CPLR article 78 and declaratory judgment proceeding against the Town of Delhi, asserting that the Town was responsible for an approximate 120 year old structure located in the Village of Delhi. The Village asserted that the Town was responsible for the... READ MORE
The firm defended Global Companies against a citizen suit action seeking declaratory relief, injunctive relief, and civil penalties for alleged violations of the Clean Air Act and New York’s state implementation plan at its petroleum terminal in Albany. The plaintiffs in White v. Global Companies LLC alleged, among other things, Global failed to comply with the nonattainment... READ MORE
The firm represented a Delaware County milk processing facility in its successful effort to compel New York City (the “City”) to pay for regulatory upgrades to its wastewater treatment plant (“WWTP”) under the terms of the historic New York City Watershed (the “Watershed”) Memorandum of Agreement (“MOA”). The plaintiff sought to increase the flow from... READ MORE