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DSB was successful in having a wrongful death/survivor claim dismissed in the Supreme Court, Westchester County on a motion for summary judgment.  Plaintiff’s decedent, an elderly man, was found injured in the driveway after allegedly falling from a 5-foot high retaining wall above.   Plaintiff died shortly after the fall.   Plaintiff alleged that the walkway above, located alongside the top of a retaining wall, was defective due to a lack of safety railing and a lack of lighting.  DSB argued that plaintiff’s theory of negligence was speculative in that the accident was unwitnessed.  Plaintiff offered no evidence as to how the accident occurred and had not established the existence of a defect.  The defense expert was able to demonstrate that the retaining wall was not defective.  Plaintiff was not able to prove the decedent actually fell from the wall.

DSB successfully opposed plaintiff’s motion for summary judgment on his Labor Law 240 claim. Plaintiff, who was allegedly injured when a scaffold collapsed, provided different accounts regarding the manner in which he was injured. The New York County Judge who decided the motion agreed with this firm’s argument that plaintiff’s credibility raised triable issues of fact sufficient to defeat the motion.

The firm won a summary judgment motion for a Town on the east end of Long Island in the Supreme Court, Suffolk County, which dismissed the demands of commercial baymen for fishing licenses from the Town. The Court upheld the town’s ability to limit licenses to inhabitants of the town based on the continuing validity of an underwater land grant given to the trustees of the town in 1686 by King James II. Judge Leis held that the trustees’ rights continue to this day, allowing the Town to regulate fishing that disturbs the trustees’ lands. The Court summarily dismissed the fishermen’s claims that the Town’s licensure restriction was preempted by the State Environmental Conservation Law. The Court also held that restrictions in General Municipal Law § 80 which apply to municipal corporations did not apply the trustees, and that the town and trustees were not engaged in a conspiracy to restrain trade in violation of the Donnelly Act.

DSB successfully opposed an appeal of a judgment of dismissal, after trial, of a defamation action by a university professor against other faculty members based on a defense of qualified immunity. The Appellate Division, Second Department ruled that the purportedly defamatory statements concerned a matter in which the defendants and the recipients of the defendants’ emails had a common interest, namely, the academic reputation and integrity of the school and its faculty.

DSB successfully obtained a complete defendant’s verdict on liability, at binding private arbitration, on behalf of a homeowner. Plaintiff alleged that our client’s negligence caused her to fall down a flight of stairs leading to the home’s basement. The single arbitrator, a retired Judge, concluded that the cause of plaintiff’s fall was the fact that she mistakenly stepped into the wrong doorway. Instead of stepping onto flooring at the same level as the hallway, plaintiff stepped into the stairs leading to the basement. On cross-examination, plaintiff conceded that she was very familiar with the layout of the home, including the separate and distinct doors to the first-floor bathroom and basement. She also acknowledged that nothing obscured her vision from being able to see what was in front of her when she mistakenly opened the basement door. The Judge fully adopted our legal arguments, in rendering an award in favor of our client dismissing the complaint.

DSB won a summary judgment motion on behalf of a Queens County property owner. Plaintiff injured herself when she slipped and fell on an ice condition that existed on the sidewalk near the property line of the owner’s property and an adjacent property. The property owner established, through use of a surveyor’s testimony, that he did not own the property abutting the fall location on the public sidewalk and he did not maintain or cause to be maintained the area of the sidewalk where the ice condition existed.

DSB was successful in obtaining a determination of no probable cause from the New York State Division of Human Rights on behalf of a school district charged by the complainant with discriminatory practice relating to her employment on the basis of sex and familial status. The Division found that the District’s actions following complainant’s return from pregnancy leave were not discriminatory, and in fact found that the District acted “with prudence”. The complainant’s claim was dismissed.

DSB won a summary judgment motion on behalf of a Suffolk County school district. Plaintiff, a special needs student, was injured while attending a special needs/alternative placement class, which was not under the direction or control of the school district. The district established that while it had arranged for the infant plaintiff to attend classes at said facility, the district did not own, operate maintain or control the building, nor was it required to supervise/train staff at the alternative school.

The firm won an appeal before the Appellate Division Second Department where it challenged the finding of the trial court which had previously held that the Dignity for All Students Act (“DASA”) conferred a private right of action to potential plaintiffs. By way of this opinion, the Second Department now joins the Third Department in finding that DASA does not create a private right of action in favor of a student injured by a school’s failure to enforce its policies prohibiting discrimination and harassment. The decision is a significant victory for public school districts, given the increasing trend of plaintiffs who are relying on DASA to allege a separate cause of action under the statute.

The Appellate Term, Second Department, has recently decided that a dismissal by the Southampton Town Justice Court of four accusatory instruments charging a defendant sand and gravel mine with violating the Southampton Town Code was made in error, and the Court reinstated the charges. The defendants had argued, in obtaining the Justice Court dismissal, that the Town’s regulation of land use activities violated the supersession clause of the New York State Mined Land Reclamation Law, which they argued preempted the authority of the Town to regulate mining and ancillary activities via local zoning rules. Devitt Spellman Barrett argued on behalf of the Town, and the Court agreed, that the defendants’ receipt and processing of road debris, including concrete and asphalt, were unrelated to mining under the State statute at issue and therefore not preempted.