Category: Firm News

DSB obtained the dismissal of a personal injury action brought by someone who crashed their boat and tried to blame an East End town by claiming it had been negligent in the placement and maintenance of buoys. The boat accident resulted in one fatality and several injuries, prompting multiple lawsuits, including one by the operator of the vessel against the Town. The operator removed all of the personal injury cases to federal court, and then when the Town argued that the removal was improper, they filed a federal admiralty proceeding — known as a limitation of liability action — seeking a declaration that they were not at fault, which resulted in all other proceedings being stayed. Eventually, the Town succeeded having the operator’s admiralty claims dismissed, and the Federal court sought to re-engage the parties with respect to whether the personal injury actions should stay in federal court or be remanded to state court. Upon consideration, after the operator did not respond to the court’s inquiries regarding that issue, the federal court remanded the other personal injury actions back to state court, but ordered that the boat operator’s personal injury action be dismissed for failure to prosecute.

DSB Obtained an Order from the U.S. Court of Appeals for the Second Circuit affirming the dismissal of constitutional claims against a Long Island town. A real estate developer was cited for departing from their approved plans, and challenged whether it was proper to issue a stop work order. It brought an action in state court seeking relief under Article 78, the State’s administrative review procedure, and also seeking declaratory relief challenging portions of the Town Code as unconstitutional; they sought to amend their complaint in State Court to allege, among other things, a claim that the Town had violated the Equal Protection Clause. The State Court denied the request to amend the complaint and dismissed the proceeding. The developer then sued in Federal Court, arguing that its equal protection claim and other constitutional arguments had not been decided by the State Court. After careful review, the Federal District Court dismissed the action, explaining that it was barred by the prior state court action. On review, the Second Circuit agreed, explaining that while ordinarily administrative review in a state court under Article 78 does not automatically bar a plaintiff from filing related constitutional claims, because the plaintiff had alleged and the state court had addressed some constitutional claims in addition to seeking administrative review, that was a full and final determination of the dispute, and the plaintiff could not file a subsequent federal action based upon the principal of res judicata.

DSB won an appeal affirming the dismissal of a civil rights complaint against a Long Island School District. A teacher’s aid alleged that she was retaliated against based upon her advocacy for a special education student. The complaint was dismissed before the trial court, and the teacher’s aid appealed. On appeal, the Appellate Division found that the complaint had correctly been dismissed as, among other things, the teacher’s aid was not disabled herself, and the advocacy she described in the complaint was not opposing or protesting discrimination against the disabled student.

DSB saved a Long Island Town over $100,000 in connection with payments owed to a contractor. The Town had terminated the contract amid, among other things, claims that it was underpaying its workers. The contractor sued and a court determined how much was owed up to the termination date, but the Town then received a restraining notice from the Department of Labor related to the contractors’ workers’ unpaid wage claims. The contractor litigated extensively with the Department of Labor over those claims and various others and, eventually, worked out a settlement with the Department of Labor. Then, they sought to collect money was owed by the Town, plus fifteen years of interest. The Town challenged the obligation to pay interest, and the trial-level court agreed that, under the unique circumstances, the vast majority of the interest should be waived. The contractor appealed, but the Appellate Division agreed, explaining that ordinarily interest automatically accrues on a judgment by statute, but in this case it was appropriate for the Court to exercise its equitable discretion to cancel or toll the accrual of interest because the delay in in payment had been due to the contractors’ own wrongful conduct.

DSB was successful in moving for summary judgment on behalf of a landlord. The plaintiff allegedly tripped and fell inside her living room during the middle of the night due to a lack of lighting. The Supreme Court, Queens County, agreed that DSB was entitled to judgment because the plaintiff was unable to identify the cause of her fall without resorting to speculation.

DSB was successful in moving for summary judgment on behalf of a municipality on Long Island. The Supreme Court, Nassau County, agreed with DSB that a pathway running through a public park constitutes a “sidewalk” within the purview of the municipality’s prior written notice law. DSB further established its prima facie entitlement to judgment by establishing that the municipality lacked prior written notice of the alleged condition.

DSB successfully obtained a discontinuance with prejudice on a New York state Labor Law claim after filing a Motion for Summary Judgment. Plaintiff, a carpenter, alleges he was injured when improperly secured metal railings fell on him. After numerous depositions, DSB developed the evidence to show that our client did not supervise or direct the work and it did not create the dangerous condition. Using the same rationale, DSB showed that the indemnity clause between our client and the GC/owner was not triggered. The Motion for Summary Judgment was filed pre-Note of Issue. During the pendency of the motion, DSB obtained a discontinuance of all claims.

DSB successfully moved for summary judgment on behalf of a commercial tenant in a trip and fall accident. Plaintiff alleged she tripped and fell on an unlevel sidewalk abutting a neighboring property’s ramp. DSB argued under the terms of the applicable lease, the commercial tenant was not required to maintain the area where plaintiff allegedly fell. Arguing as well, under § 7-210 of the New York City Administrative Code, real property that abuts any sidewalk is the duty of the owner and a tenant is not affirmatively charged with a duty to maintain the sidewalk. Furthermore, 911 transcripts obtained demonstrated that Plaintiff’s accident occurred in front of the neighbor’s property. Following oral argument, the Kings County Supreme Court dismissed plaintiff’s complaint and all cross claims asserted against DSB’s client.

DSB was successful in moving for summary judgment on behalf of a municipality on Long Island. The Supreme Court, Suffolk County, agreed with DSB that the municipality was entitled to judgment because it neither owned nor maintained the situs of the accident. The Court further noted that it was not a movant’s burden to establish who or what owns or controls the accident location. DSB’s motion was granted and all claims against the municipality were dismissed.

DSB was successful in moving for summary judgment to dismiss claims of negligence and reckless disregard against two New York homeowners. DSB established that the homeowners had neither the opportunity nor the ability to control the conduct of plaintiff’s assailant. The Supreme Court, Suffolk County, granted DSB’s motion dismissing all claims against the homeowners.