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DSB was successful in moving to dismiss claims against its client which was an out-of-state wholesaler of “vapor” products. Plaintiff was allegedly injured when his “vape device” suddenly exploded in his pocket; he commenced suit against the retailer where he allegedly purchased the device. The retailer then brought third-party claims against the wholesaler of a component part, claiming that it was provided a defective battery for the device. The Court, in dismissing all claims, found that plaintiff could not definitively establish where he bought the device or the battery allegedly involved, thus precluding any products liability and/or breach of warranty claims.

DSB won summary judgment on behalf of the Town of East Hampton dismissing a CPLR Article 78 proceeding which sought to nullify a local law which prohibited a take-out food store as a second principal use or an accessory use on a property zoned for transient motel or resort use. The Supreme Court agreed that petitioner’s various challenges to the law lacked merit.

DSB won a summary judgment motion on behalf of Queens County commercial tenants sued by a patron who tripped and fell on an A-frame sign on the sidewalk outside of their business. Plaintiff, who sustained very serious injuries, claimed that the placement of the sign was a hazardous condition and that the hazard was compounded by dim lighting. In the motion, DSB argued that the sign was both open and obvious and not inherently dangerous and that there was no evidence that any defective or absent lighting caused or contributed to the accident. On the eve of trial, the Court granted DSB’s motion and dismissed the complaint in its entirety, finding that there was no duty to protect or warn against an open or obvious condition, which, as a matter of law was not inherently dangerous, and further, that there was no evidence that lighting conditions proximately caused the accident. Case dismissed.

DSB successfully argued a summary judgment motion in the Supreme Court, Kings County to dismiss a Third Party Complaint brought against its client in a pedestrian trip and fall case. In the action, Plaintiff allegedly tripped and fell on a sidewalk defect adjacent to the Defendant’s home. The Defendant brought a third party action against DSB’s client alleging that the defect was actually created by DSB’s client when repair work had been done to the sidewalk some two years earlier. DSB’s client denied doing any repair work to the sidewalk. DSB moved for Summary judgment and argued that the defect was adjacent to Defendant/Third party Plaintiff’s premises and any allegation that Third Party Defendant replaced the sidewalk and created the defect was unsupported by the evidence. The court granted the motion dismissing the Third party Complaint.

DSB prevailed before the state Division of Human Rights where it defended a public school district in a claim premised on alleged unlawful discrimination based on ones prior criminal conviction brought by an applicant who was denied a position as a food service worker. The complainant alleged that the denial of the position for which he applied was based on a discriminatory animus for his prior criminal convictions which he disclosed in his application. The firm successfully showed that the employment decision was based on legitimate non-discriminatory reasons, resulting in the dismissal of the complaint.

DSB was successful moving for summary judgment to dismiss a trip and fall claim against a church in Suffolk County. Plaintiff, a visitor to the church for her granddaughter’s play, tripped and fell over a height differential between the church parking lot and the public sidewalk. After considering the motion, the Court concluded that any height differential between the driveway and the sidewalk was trivial in nature and thus not actionable.

DSB won a motion for summary judgment in a premises case involving a school district in Suffolk County where the plaintiff slipped and fell on a wooden, rustic set of stairs built into the side of a hill at the very back of school property which leads into a wooded area and adjoining neighborhood. It was raining at the time of the accident and the stairs were wet. The stairs did not have a handrail. Plaintiff had gone up the steps to walk her dog. In the process of going back down the steps, the plaintiff fell and sustained a left comminuted radial fracture and ulnar styloid fracture of the wrist with open reduction and internal fixation. The basis of the motion for summary judgment was that the exterior steps were wet due to rainfall and the naturally occurring condition did not constitute a dangerous or defective condition. Further, there was no applicable building code which required a handrail for an exterior set of stairs that was not otherwise affixed to a building or structure. The court determined that plaintiff’s opposition failed to raise triable issue of fact and granted summary judgment to the school district.

U.S. District Court Judge Bianco granted DSB’s motion to dismiss a lawsuit brought by a security company owned by the former police chief of a village in the Hamptons. The lawsuit claimed that Village Mayor and a Village Trustee forced the police chief to divest himself of his ownership rights in the company in order to give a competitive edge to security businesses in which the Mayor and Trustee had financial interests. The Court found that Plaintiff’s claims of violations of its constitutional right to equal protection and due process and of federal conspiracy were time-barred. According to Judge Bianco, the alleged divestiture of the business, which took place in 2009, could not give rise to federal claims in 2017, long after the three-year limitations period expired. Although the Court gave Plaintiff the option of filing an amended complaint if it could allege wrongful acts within the limitations period, Plaintiff’s attorney informed the Court on October 15, 2018, that Plaintiff would not be amending the Complaint, thereby ending the lawsuit.

DSB successfully moved to dismiss a proceeding against a Town Planning board by a petitioner who averred that the Board’s requirement of a traffic study in connection with its site plan application was arbitrary and capricious. The Court agreed that the Board’s determination was not final and the proceeding was not ripe for review.

Kevin Spellman and John Denby are pleased to announce that Nicholas M. Brino has been elected Equity Partner of Devitt Spellman Barrett, LLP effective October 5, 2018.

Nick joined the firm in 2004 as an Associate. He became a contract partner in October 2013. He has proven himself to be a trustworthy leader who can be relied upon to consistently focus on developing the firm’s business and interests, for the benefit of our clients,  customers and all employees of the firm.  We have the utmost confidence in Nick’s abilities.