News

Fishkin Lucks Scores Voluntary Dismissal in Cape May County, NJ Construction Litigation

Fishkin Lucks secured a voluntary dismissal today of all claims brought in the Superior Court of New Jersey, Cape May County, against our client, a leading designer and manufacturer of exterior wall systems and products.  Plaintiff, the homeowners association of The Grand at Diamond Beach, a twelve-story, 125 unit ocean-front condominium complex located in Wildwood, New Jersey, brought claims against a developer, several contractors, a manufacturer of roofing/waterproofing membrane and flashings, and our client, seeking $1.75M plus costs and fees to remediate alleged systemic water infiltration issues throughout the complex.  After rejecting requests for contribution toward a global resolution of the matter, we illustrated for the homeowners association how our client bore no responsibility for the alleged water infiltration, leading to the voluntary dismissal.  Several weeks later, each of the remaining defendants contributed funds toward a global resolution of the matter. 

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Fishkin Lucks Secures Dismissal of RICO and Fraud Claims in Ocean County, NJ

Fishkin Lucks obtained complete dismissal of civil RICO and fraud claims in a pair of cases brought in the New Jersey Superior Court, Ocean County against the Firm’s client, a prominent real estate developer. The companion cases brought by the client’s former employee and contractor involved a 28-acre piece of industrial property in the Bronx, New York that the client purchased out of bankruptcy and developed over the course of 15 years. After extensive briefing and hearings, the Court agreed with the Firm’s arguments that the RICO counts failed due to plaintiffs’ inability to allege the existence of an enterprise, a pattern of racketeering activity, or causation, and that the fraud counts failed due to plaintiffs’ inability to allege any material misrepresentations of existing fact upon which they relied.

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Fishkin Lucks Defeats Motion to Dismiss Copyright Lawsuit in the Southern District of New York

The Firm successfully opposed a motion to dismiss the lawsuit it brought on behalf of its client, a world-renowned jazz and R&B recording artist, to recover his copyrights in several of his seminal recordings.  The Firm’s lawsuit, pending in the United States District Court for the Southern District of New York, seeks to settle a matter of first impression, specifically, whether “gap grants”—pre-1978 agreements to convey copyrights in works that were not created until after 1978—such as the ones its client made to defendant, a global music conglomerate, are terminable under section 203 of the Copyright Act.  The Court permitted the Firm to proceed with its lawsuit in the face of a motion by the defendant arguing that gap grants are not terminable pursuant to the relevant statute, and thus, that it ought to be able to continue to extract profits from the intellectual property of the Firm’s client and countless other similarly situated recording artists.  

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Fishkin Lucks Wins Summary Judgment in New York Life Insurance Litigation

Fishkin Lucks won a complete victory today for its client, a life insurance company, in a litigation concerning two lapsed $5 million life insurance policies that had been owned by a trust. The lawsuit, brought in the Supreme Court of the State of New York, New York County, was actually the second litigation between the parties concerning the same policies. In the first litigation, the court had ordered that the trust did not need to pay premiums that came due while that action was pending. Once that first lawsuit was resolved,however, the trust never paid the hundreds of thousands of back premiums that it owed. After giving the trust every opportunity to cure its failure to pay, the life insurance company canceled the policies for non-payment.The trust then brought an action for declaratory judgment, arguing that it was not obligated to pay those back premiums but should still be entitled to keep the policies in effect. It also sought a setoff for amounts it paid to a different life insurance company to obtain replacement coverage during the pendency of the first action. On behalf of its client, the Firm counterclaimed for a declaratory judgment that the policies had lapsed due to non-payment. The parties submitted competing motions for summary judgment. Adopting in full the arguments the Firm had advanced, the court denied the trust’s motion and granted the life insurance company’s motion,finding that the policies had lapsed for non-payment and that the trust was not entitled to any setoff for its replacement coverage. As a result, the action was dismissed in its entirety and the Firm’s client is no longer obligated to provide coverage under the lapsed policies.

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Fishkin Lucks Wins Partial Summary Judgment on Novel Environmental Coverage Issue

The Firm prevailed on a motion for partial summary judgment today in the Superior Court of New Jersey, Law Division, Passaic County, when the Court entered a declaration that its insurance carrier client had no duty to cover the plaintiff-insured’s claim for costs associated with a sub-slab vapor mitigation system it installed to remove harmful vapors from a warehouse building located on a site undergoing environmental remediation. The issue was a matter of first impression, as the parties’ research revealed no reported cases in the United States that addressed whether costs to remediate indoor air fall under the “owned property” exclusion contained in standard Commercial General Liability policies. Plaintiff had argued that the exclusion should not bar these costs because indoor air is not “owned” by the landowner, instead falling under the state’s parens patriae protection. However, the Court agreed with the Firm that the “owned property” exclusion bars costs to cleanup an insured’s own property that have nothing to do with remediating third-party property; and here, the insured remediated its indoor air, not to remediate damage to third-party property, but solely to prevent harm to the building’s occupants.  A copy of the Court’s order can be found here.

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Fishkin Lucks Wins in Montgomery County, Pennsylvania

Fishkin Lucks scored a complete victory today in a construction defect case brought in the Pennsylvania Court of Common Pleas, Montgomery County, when plaintiffs withdrew their opposition to the Firm’s motion for summary judgment filed on behalf of its client, a leading manufacturer of flexible exterior wall systems. Plaintiffs brought claims against more than a dozen parties, alleging property damage and personal injuries due to water infiltration at their home. Plaintiffs attributed the water infiltration, in part, to defects in a stucco system allegedly manufactured and supplied by the Firm’s client. Following the completion of discovery, the Firm argued that the record evidence was insufficient to establish that our client’s stucco system had been installed on plaintiffs’ home or was a proximate cause of plaintiffs’ alleged damages and that, in any event, summary judgment was also appropriate solely on account of plaintiffs’ intentional spoliation of critical evidence. Plaintiffs withdrew their opposition to the motion after they received the Firm’s reply papers in further support of the motion, in which the Firm demonstrated that their opposition was based on misrepresentations, unsupported arguments and baseless allegations, and completely failed to challenge the substantial prejudice our client sustained due to plaintiffs’ spoliation of evidence, which prejudice we carefully detailed for the Court through expert testimony presented in the Firm’s moving papers. Following the withdrawal, the Court awarded our client summary judgment not only against plaintiffs’ claims, but against each co-defendant’s cross-claims.

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