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Greenstone/Fontana Corp. v. Feldstein

April 20, 2010

GREENSTONE/FONTANA CORPORATION, F/K/A TOPLINE ADVERTISING, INC., PLAINTIFF/COUNTERCLAIM DEFENDANT- APPELLANT,
v.
NEIL FELDSTEIN, ET AL., DEFENDANTS/ COUNTERCLAIM PLAINTIFFS-RESPONDENTS; TOPLINE ADVERTISING, INC., ADDITIONAL COUNTERCLAIM DEFENDANT, JEANNE FONTANA, ET AL., ADDITIONAL COUNTERCLAIM DEFENDANTS-APPELLANTS. (APPEAL NO. 1)
GREENSTONE/FONTANA CORPORATION, F/K/A TOPLINE ADVERTISING, INC., PLAINTIFF/COUNTERCLAIM DEFENDANT- RESPONDENT, NEIL FELDSTEIN, DEFENDANT/COUNTERCLAIM PLAINTIFF-RESPONDENT, NEIL BUICK CORPORATION, ET AL., DEFENDANTS/COUNTERCLAIM PLAINTIFFS-RESPONDENTS- APPELLANTS; TOPLINE ADVERTISING, INC., ADDITIONAL COUNTERCLAIM DEFENDANT-RESPONDENT, JEANNE FONTANA, ET AL., ADDITIONAL COUNTERCLAIM DEFENDANTS-APPELLANTS- RESPONDENTS. (APPEAL NO. 2)
GREENSTONE/FONTANA CORPORATION, F/K/A TOPLINE ADVERTISING, INC., PLAINTIFF/COUNTERCLAIM DEFENDANT- RESPONDENT, NEIL FELDSTEIN, DEFENDANT/COUNTERCLAIM PLAINTIFF, NEIL BUICK CORPORATION, ET AL., DEFENDANTS/ COUNTERCLAIM-PLAINTIFFS-APPELLANTS; TOPLINE ADVERTISING, INC., ET AL., ADDITIONAL COUNTERCLAIM DEFENDANTS-RESPONDENTS. (APPEAL NO. 3)



In an action, inter alia, to recover damages for breach of contract, (1) the additional counterclaim defendants Jeanne Fontana, Robert Williams, Ron Greenstone, and Rebecca Kopprasch appeal from so much of an order of the Supreme Court, Nassau County (Warshawsky, J.), entered June 30, 2008, as denied those branches of their motion which were pursuant to CPLR 3211(a)(7) and CPLR 3211(a)(5), respectively, to dismiss the second, third, and fourth counterclaims, and the plaintiff/counterclaim defendant, Greenstone/Fontana Corporation, f/k/a/ Topline Advertising, Inc., separately appeals from so much of the same order as denied that branch of its motion which was pursuant to CPLR 1003 and 3211(a) to dismiss the first counterclaim, (2) the additional counterclaim defendants Jeanne Fontana, Robert Williams, Ron Greenstone, and Rebecca Kopprasch appeal from so much of an order of the same court entered December 11, 2008, as, upon reargument, adhered to so much of the determination in the order entered June 30, 2008, as denied those branches of their motion which were pursuant to CPLR 3211(a)(7) and CPLR 3211(a)(5), respectively, to dismiss the third and fourth counterclaims, and the defendants/counterclaim plaintiffs Neil Buick Corporation, Neil Lincoln-Mercury/Hyundai Corporation, Worldwide Automotive, LLC, and Worldwide Automotive III, LLC, cross-appeal from so much of the same order as, upon reargument, in effect, vacated the determination in the order entered June 30, 2008, denying that branch of the motion of the additional counterclaim defendants Jeanne Fontana, Robert Williams, Ron Greenstone, and Rebecca Kopprasch which was to dismiss the second counterclaim, and thereupon granted that branch of the motion, and (3), the defendants/counterclaim plaintiffs Neil Buick Corporation, Neil Lincoln-Mercury/Hyundai Corporation, Worldwide Automotive, LLC, and Worldwide Automotive III, LLC, appeal, as limited by their brief, from so much of an order of the same court entered February 24, 2009, as, as upon reargument, in effect, vacated the determination in the order entered June 30, 2008, denying that branch of the motion of the plaintiff/counterclaim defendant Greenstone/Fontana Corporation, f/k/a/ Topline Advertising, Inc., which was pursuant to CPLR 1003 and 3211(a) to dismiss the first counterclaim, and thereupon granted that branch of the motion.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

REINALDO E. RIVERA, J. P., ANITA R. FLORIO, DANIEL D. ANGIOLILLO, ARIEL E. BELEN, JJ.

(Index No. 19510/06)

DECISION & ORDER

ORDERED that the appeal by the additional counterclaim defendants Jeanne Fontana, Robert Williams, Ron Greenstone, and Rebecca Kopprasch from so much of the order entered June 30, 2008, as denied that branch of their motion which was to dismiss the second counterclaim is dismissed, as that portion of the order was superseded by so much of the order entered December 11, 2008, as, upon reargument, granted that relief; and it is further,

ORDERED that the appeal by the plaintiff/counterclaim defendant Greenstone/Fontana Corporation, f/k/a/ Topline Advertising, Inc., is dismissed as abandoned and on the further ground that the portion of the order appealed from by that party was superseded by the order entered February 24, 2009, made upon reargument; and it is further,

ORDERED that the appeal by the additional counterclaim defendants Jeanne Fontana, Robert Williams, Ron Greenstone, and Rebecca Kopprasch from so much of the order entered June 30, 2008, as denied those branches of their motion which were to dismiss the third and fourth counterclaims is dismissed, as those portions of the order were superseded by so much of the order entered December 11, 2008, as, upon reargument, adhered to the determination in the order entered June 30, 2008, denying those branches of the motion; and it is further,

ORDERED that the order entered December 11, 2008, is reversed insofar as appealed from, on the law, and, upon reargument, so much of the order entered June 30, 2008, as denied those branches of the motion of the additional counterclaim defendants Jeanne Fontana, Robert Williams, Ron Greenstone, and Rebecca Kopprasch which were to dismiss the third and fourth counterclaims is vacated, and those branches of the motion are granted; and it is further,

ORDERED that the order entered December 11, 2008, is affirmed insofar as cross-appealed from; and it is further,

ORDERED that the order entered February 24, 2009, is affirmed; and it is further,

ORDERED that one bill of costs is awarded to the additional counterclaim defendants Jeanne Fontana, Robert Williams, Ron Greenstone, and Rebecca Kopprasch.

From 1988 to 2006 the plaintiff/counterclaim defendant, Greenstone/Fontana Corporation, f/k/a Topline Advertising, Inc. (hereinafter Greenstone), provided advertising services to the defendants/counterclaim plaintiffs Neil Buick Corporation, Neil Lincoln-Mercury/Hyundai Corporation, Worldwide Automotive, LLC, and Worldwide Automotive III, LLC (hereinafter collectively the Dealerships), pursuant to certain contractual agreements. In September 2006 the Dealerships, except for Worldwide Automotive, LLC, commenced an action (hereinafter the prior action) against Greenstone seeking, inter alia, to recover damages for breach of contract and fraud arising from Greenstone's alleged overcharging for its advertising services. In a stipulation, the Dealerships agreed to discontinue the fraud causes of action, with prejudice. The stipulation further provided that the Dealerships would not be prohibited from asserting claims which were based upon misrepresentations which were extraneous to any contract between the parties.

Thereafter, Greenstone commenced this action, inter alia, to recover damages for breach of contract, seeking to recover outstanding fees for the advertising services provided to the Dealerships from 1988 to August 2006. In relevant part, the Dealerships asserted four counterclaims against Greenstone and its principals and/or employees, the additional counterclaim defendants Jeanne Fontana, Robert Williams, Ron Greenstone, and Rebecca Kopprasch (hereinafter collectively the counterclaim defendants). The first counterclaim alleged fraud against Greenstone and the second counterclaim alleged fraud against Jeanne Fontana, Robert Williams, and Ron Greenstone (hereinafter collectively the Principals). The third and fourth counterclaims (hereinafter together the RICO counterclaims) alleged violations of the prohibitions set forth in the Racketeer Influenced and Corrupt Organizations Act (see 18 USC ยง 1962; hereinafter RICO) by the counterclaim defendants. The counterclaim defendants moved to dismiss the fraud and RICO counterclaims asserted against them pursuant ...


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