KEY DECISIONS

Lead Paint Suit in State Court against Lender:

In an action commenced on or about January 11, 2005, by Fitzgerald & Fitzgerald, P.C. on behalf of the guardian for an infant suffering from lead exposure and lead poisoning, Sweeney, Gallo, Reich & Bolz, LLP advanced the arguments on behalf of the acquiring lender that it did not have possession, access or control over the premises at the time of transfer, and the lender had no duty to the plaintiff-occupants to abate the nuisance consisting of lead paint, lead chips or lead dust in the premises.  By reason of such arguments, this action was dismissed prior to trial on the lender’s motion for summary judgment and after the completion of discovery.  “Exzavia Pollard, an Infant by his Mother and Natural Guardian, Lisa Vidal, and Lisa Vidal, individually, plaintiffs, v. Credit Suisse First Boston Mortgage Capital, LLC, Fairbanks Capital Corp., and TCIF, LLC, defendants.” Kings County, Index No. 870/05.

Civil Rights Claims in District Court against Lender:

In a District Court action commenced by the borrowers, alleging that the lender,  and its servicer,  together with its employees, denied them due process in seeking to foreclose on their mortgaged premises, the lender, by Sweeney, Gallo, Reich & Bolz, LLP moved to dismiss on the ground that the claims are inextricably intertwined with the foreclosure proceedings.  The District Court dismissed the case, which judgment of dismissal was appealed to the Second Circuit Court of Appeals, and affirmed on appeal.  “Michael Swiatkowski, Lidia Swiatkowski, plaintiffs, v. Citibank and as CitiCorp and as Citimortgage and CMI Servicing Agent, et. al., defendants”, U.S. District Court, Eastern District of New York, Case No. 05-cv-0178.

Creditor’s Rights in Bankruptcy involving foreclosure:

In a Chapter 13 case commenced by the mortgagor-owner, seeking to convert to Chapter 11 and stave off foreclosure in an effort to liquidate the debt at a shortage, Sweeney, Gallo, Reich & Bolz LLP moved for relief of stay for failure to proceed to confirmation and inability to confirm a Chapter 11 plan of reorganization.  Counsel also sought to render valid a judicial sale of the property.  By reason of such steps, the case trustee moved to dismiss the case retroactive to the date of filing.  The Bankruptcy Court (J. Feller) dismissed the case nunc pro tunc, rendering the sale valid.  On appeal, the district court affirmed the Bankruptcy Court’s decision, “In re: Peter Plagakis”, Chapter 13, Case No. 02-18292; U.S. Dist. Ct., EDNY Case No.: 03-cv-728.

Title Dispute/Adverse Possession Case:

In an action commenced by the owner of commercial real property, Sweeney, Gallo, Reich & Bolz, LLP advanced the arguments on behalf of the adjoining owner that the plaintiff failed to establish by clear and convincing evidence the existence of a substantial enclosure or the cultivation and improvement of the disputed area for the statutory period, in addition to the common law elements, whereby the trial court dismissed the complaint, and declared that defendant held title to the disputed area and directed the plaintiff, its tenants and licensees, to immediately cease any and all use of the disputed area.

 “Nissan Realty Co., LLC, plaintiff vs.

JDL Holdings, LLC,” Queens County Index No. 16186/05.