Dave handles a broad range of disputes in state and federal courts, focusing on commercial disputes, construction litigation, intellectual property disputes, including patent and trade dress infringement, surety defense, insurance coverage disputes and product liability matters. He represents clients across many industries, including accounting, agricultural, electrical components, floral, liquor, photographic, mining, printing and sporting goods, as well as mall developers and builders. He successfully represents a number of municipal bodies whose actions and decisions have been challenged in the courts.
- Hayton Farms, Inc., et al. v. Pro-Fac Cooperative, Inc., et al. (New York State Supreme Court): Obtained the dismissal of derivative action challenging business practices of the Board of Directors over a ten year period.
- In the matter of the Voluntary Dissolution of Pro-Fac Cooperative, Inc. (New York State Supreme Court): Successfully defended against claims by 17 former members of one of the largest and oldest growers cooperatives in the United States, challenging the essential business model and decisions of its Board of Directors relating to its planned liquidation and dissolution.
- Leo J. Roth Corporation v. Trademark Development Co. Inc. et al. (New York State Supreme Court): Obtained judgment for an HVAC subcontractor against the developer and general contractor of two construction projects the defendants alleged were not built in accordance with New York State Energy Research and Development Authority (NYSERDA) standards and successfully defended the result on appeal reported at 90 A.D. 3d 1579, 935 N.Y.S.2d 780 lev. denied 92 A.D.3d 1269 (2012).
- Wiljeff, LLC v. United Realty Management Corp. (New York State Supreme Court): Obtained judgment for owner of mixed-use university housing and commercial complex against its former management company establishing a “for cause” material breach of the management agreement and successfully defended the result on appeal reported at 82 A.D.3d 1616, 920 N.Y.S.2d 495 (2011).
- Rochester-Genesee Regional Transportation Authority v. Hynes-Cherin (U.S. District Court, Western District of New York): Successfully challenged the FTA’s determination ordering the transportation authority to cease providing subsidized bus services to school students as reported at 531 F.Supp.2d 494.
- Pittsford Plaza Company L.P. v. TLC West LLC: Successfully prosecuted a declaratory judgment action against a commercial tenant who was seeking to enforce lease provisions in a bid to block the redevelopment of the plaza and construction of a Cheesecake Factory restaurant.
- KATEL LLC v. Kyrgytelecom (International Centre for Dispute Resolution 2006): Counsel to Kyrgyzstani-American telecommunications venture resulting arbitration award of $1.2 million for defendant’s breach of contract.
- Rushing vs. NexPress Solutions Inc. (U.S. District Court): Defended digital printer manufacturer in patent infringement action and prosecuted counterclaims for misappropriation of intellectual property.
- Frontier-Kemper Constructors, Inc. et al. vs. American Rock Salt Company LLC (U.S. District Court): Defended owners of a salt mine against $37 million claim brought by general contractor, resulting in dismissal of punitive damages claim and all other claims not related to contractor’s claims for extra work. (See 224 F. Supp. 2d 520) Briefed and argued the summary judgment motion relating to claim to collect $4 million in liquidated damage insurance proceeds from third-party defendant reported at 2005 WL 3018720
(W. D. N. Y.). - Amesbury Group Inc. vs. The Caldwell Manufacturing Co. (U.S. District Court, Massachusetts): Defended window component manufacturer in patent infringement action. The matter was resolved successfully after obtaining the inventor’s deposition under the laws of the United Kingdom.
- Honeywell International Inc. et al. vs. Apple Computer Inc., et al. (U.S. District Court): Defense of Eastman Kodak Co. in patent infringement case involving liquid crystal displays in digital still cameras. Successfully moved
to have the litigation stayed against Kodak as well as numerous other co-defendants which joined in Kodak’s motion. - Eber Bros. Wine and Liquor Corp. vs. Allied Domecq Spirits & Wine USA Inc., Chamer Industries, Inc., et. al.
(U.S. District Court): Prosecuted claims for breach of supply agreements and anti-competitive activity, which were settled, resulting in an extension of client’s rights under supply agreements. - Solaia Technology LLC vs. Arvinmeritor, Inc. et al. (U.S. District Court): Defended Eastman Kodak Company against patent infringement claims involving Programmable Logic Controllers.
- Faster Form Corp. vs. Portney and Royal Imports (U.S. District Court): Successful prosecution and settlement of trade dress infringement.
- Ivoclar Vivadent, Inc. and Lasermed, Inc., Dental Curing Light Litigation (U.S. District Court): Member of the team of Harris Beach Murtha attorneys that successfully prosecuted patent infringement claims against a number of companies’ infringing products.
- Carmon vs. Guardian Industries Corp, et al. (U.S. District Court): Member of the team of Harris Beach Murtha attorneys that obtained summary judgment in plaintiff’s Labor Law § 240 action resulting in $17.9 million settlement
- Nimeh vs. Nimeh (New York State Supreme Court): Sole counsel in obtaining $1.2 million judgment, including an award for punitive damages, for the victim of a head injury.
- LeCesse Construction Services LLC, individually and as assignee of Good Shepherd Village v. Keystone Material Testing, LLC – Successfully resolved claims on behalf of a CM “at risk” against a professional testing and engineering company for professional negligence and mis-calibrated sub-grade, fill and backfill density and soil compaction tests in accordance with plans, specifications and applicable building codes. This resulted in unexpected and unacceptable foundation settlement and significant repairs and remediation to multiple structures throughout the project.
- DV Brown v. Leo J. Roth Corp, et al. – Obtained a $100,000+ judgment and recovery on client’s counterclaims against a general contractor building a hotel in Horseheads, New York, where the owner and general contractor had defaulted on the project.
- Ironwood Heavy Highway v. Kenny Construction (now Granite Construction) – Secured a $1.35M settlement for unpaid work building a Substation and Underground Transmission Lines as a subcontractor on a project for RG&E. The project cut across Rochester City Streets and the campus of the U of R, where numerous unmarked, abandoned structures and unmarked utilities greatly increased the cost and required acceleration in order to meet with the university’s inflexible schedule for completion before the opening of campus and arrival of students.
- Corning Hospital v. Realstone Systems – Obtained a dismissal of a $2M product defect claim by proving the reason the stone façade was falling off the brand new hospital building was that the masons who put it up didn’t follow the directions, used grossly inadequate quantities of the bonding agent, and failed to provide temporary heat while the product was curing, and that failed installation had nothing to do with any claimed defect in the stone panels.
- Wilderness USA, INC., v. DeAngelo Brothers LLC, – Secured a temporary restraining order and preliminary injunction in Georgia to prevent DeAngelo, which uses the name DBi, from terminating Wilderness as its vegetation management subcontractor with the Georgia Department of Transportation (“GDOT”) on completely sham grounds, all so DBi take the work for itself. (Wilderness is an affiliate of Lewis Tree Service, Inc.)
- O’Connell Electric Company, Inc., v. the State of New York and New York Office of General Services – Successfully settled a $2.8M claim regarding disputed change orders, extra work, a 34-month delay, extended warranty and bond premiums, and other damages all resulting from the fact that neither the State, OGS, nor its outside engineers had provided the public utility, National Grid, with an executed plan, which was required for the anticipated construction. That failure, coupled with OGS’s additional failure to perform complete engineering plans, drawings and specifications, pushed/stretched out the contract for physical completion by at least two years.
- Tug Hill Construction, Inc. vs. Dufferin Construction Co.: Defended builder of a landing strip at Fort Drum that had to be ripped out and replaced because heavier concrete was required to accommodate military aircraft. Case rested on whether the contract provided a performance specification or design specification.
- Blue Heron Construction Co. LLC and Hanover Ins. vs. Town of Springwater vs. Larsen Engineers: Waste Water Treatment Plant has been built to specification two times and is still claimed not to work. Representing the builder and surety against owner and engineer in litigation centering on whether it was a bad design or defective construction.
- E-Pro Engineering and Environmental Consulting, LLC, O’Connell Electric Co. and E.S. Boulos Co. vs. Rochester Gas & Electric Corp. (AAA arbitration): Represented a consortium of builders against owner in claims resulting from design changes to the Rochester Transmission Project and 35kV Base Reinforcement Project. Owner changed the specified high voltage conductor, necessitating redesign of transmission towers.
- Nova Casualty Co. vs. WBP Central Associates LLC (Erie County Sup. Ct.) and WBP Central Associates LLC vs. Nova Casualty Co. (Westchester County Sup. Ct.): Represented surety against developer of a shopping mall that had defaulted the surety’s principal from an earth-moving project designed for blasting, but changed to mechanical means. Successfully resolved claim while litigating the surety’s defense that a cardinal change had released its bond.
- Orange-Ulster School Districts Health Plan (Weyant vs. The Phia Group, LLC and Indecs Corp.) – Represented a third-party defendant, non-ERISA health plan in getting a putative class action case dismissed against its third party administrator. US District Court for the NY Southern District and Second Circuit Court of Appeals.
- RANA v. L3Harris – Successful defense and dismissal of tortious interference claims of government subcontractor in Afghanistan with a nominal settlement pending appeal in the Second Circuit Court of Appeals.
- Mendon Golf Club – Won dismissal of an action seeking to dissolve the entity by a minority owner, resulting in the buyout of that owner on terms favorable to remaining members.
- Estate of Laurence C. Glazer – Represented the Petitioner on behalf of a half dozen real estate holding entities and a property asset management company to enjoin the executor from pledging or encumbering the assets, interfering with the operations of the businesses, ordering an accounting of the assets, and the return of funds withdrawn by the executor.