Arnold B. Schwisberg

The third-party defendant brought a motion for security for costs against the defendant/third-party plaintiff on the eve of trial, citing the latter's recent insolvency.

The court dismissed the motion, finding that the moving party delayed in bringing the motion despite knowing of the financial issues months earlier.

Ordering security for costs at this late stage would necessitate an adjournment, prejudicing all parties and delaying a trial on the merits.

The plaintiff vendor brought a motion for summary judgment against the defendant purchaser for failing to close a real estate transaction.

The defendant argued that the plaintiff misrepresented the zoning of the property and breached the agreement by refusing to grant further extensions.

The court found no genuine issue requiring a trial, noting the clear 'entire agreement' and 'as is' clauses in the Agreement of Purchase and Sale, and the defendant's own failure to properly investigate the zoning.

The court awarded the plaintiff damages for the loss of bargain and carrying costs, finding she had reasonably mitigated her damages by reselling the property.

The plaintiffs purchased a plaster sculpture attributed to Auguste Rodin and loaned it to the defendant art gallery to obtain a charitable tax credit.

The authenticity of the sculpture was subsequently challenged by the Musée Rodin, causing the tax certification to fail.

The defendant terminated the loan agreement and requested the plaintiffs arrange for the sculpture's return.

When the plaintiffs failed to do so, the defendant shipped the sculpture to a storage facility, during which it sustained severe damage.

The plaintiffs sued for damages, and the defendant counterclaimed for storage fees.

The court found that the loan agreement had terminated and the defendant was acting as an involuntary bailee.

As an involuntary bailee, the defendant's duty was only to refrain from intentional or reckless damage.

The court held the defendant met this standard by using the original packing crate, especially given the sculpture's lack of proven authenticity and value.

The plaintiffs' claim was dismissed, and the defendant's counterclaim for storage fees was granted.

Following an order by the Court of Appeal awarding the plaintiffs their costs of a summary judgment motion, the parties were unable to agree on the quantum.

The plaintiffs sought $50,000 in fees and $3,236.40 in disbursements, while the defendant argued for costs in the cause or a reduced amount.

Applying the principles of fairness, reasonableness, and proportionality, the court fixed the plaintiffs' costs of the summary judgment motion at $53,236.40 on a partial indemnity scale.

The court also awarded the plaintiffs $10,000 for a successful Rule 34.14 motion, with all costs payable in any event of the cause.