July 13, 2023

DSB obtained orders from the United States Court of Appeals for the Second Circuit affirming the dismissal of three lawsuits against a Long Island school district that had been accused of discriminating against or otherwise violating its special education obligations with respect to a disabled student. The student’s parents had a preference for a particular middle and high school, which did not have an appropriate class in the student’s age range that met his needs, and thus the District offered and recommended placement in a special education class at another nearby school. This prompted numerous lawsuits and eight years of litigation, wherein the parents argued that the district failed to accommodate and generally discriminated against the student, that it violated the Equal Protection Clause by not having an appropriate class at the preferred schools at the time their child enrolled but starting one a few years later when a group of younger disabled students moved up from elementary school, and that it had violated its obligations under the Individuals with Disabilities in Education Act and related state and federal regulations. The lower court dismissed the actions and the parents appealed. After hearing extensive argument, the Second Circuit took the unusual step of holding its decision in abeyance and referring the matter for mediation, and the case became the first in-person mediation conducted by the Court’s CAMP program since Covid. The parties eventually advised the Court that they had reached an impasse and asked that a decision be issued, resulting in Orders affirming the Judgments in favor of the school district for substantially the reasons DSB had argued before the lower court an on appeal.

March 27, 2023

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 did not owe plaintiffs’ decedent a duty of care for a roadway for a roadway outside of the municipality’s jurisdiction. Additionally, the municipality did not create a dangerous condition upon the roadway by failing to replace a lightbulb along the roadway. Accordingly, the complaint was dismissed.

March 22, 2023

DSB was successful in moving for summary judgment on behalf of a municipality on Long Island. Plaintiff was injured when the bicycle he was riding struck a divot, causing him to fall. The Supreme Court, Suffolk County, determined that DSB established its prima facie entitlement to judgment as a matter of law by demonstrating that the municipality had enacted a prior written notice statute regarding defects in the roadways, and that the municipality had not received the requisite prior written notice. The Court granted DSB’s motion for summary judgment and dismissed plaintiff’s complaint in its entirety.

February 17, 2023

DSB successfully moved for summary judgment on behalf of a commercial landlord in a personal injury action involving a slip and fall in a grocery store. Plaintiff had allegedly slipped on water in the produce aisle of a supermarket operated by the landlord’s tenant. DSB successfully argued the out-of-possession landlord had no duty to plaintiff, absent a statute or regulation, contract, course of conduct or creation of the condition. Following oral argument, the Supreme Court dismissed Plaintiff’s complaint and all cross claims.

February 8, 2023

DSB prevailed in the Appellate Division, Second Department on an appeal in a personal action alleging assault and battery. In the lower court, DSB moved to have plaintiff’s complaint dismissed as time-barred; in response, plaintiff opposed the motion and cross-moved to amend the complaint to add timely allegations for violations of New York City’s Victims of Gender-Motivated Violence Protection Law and Civil Rights Law § 79-n. The Supreme Court, Nassau County granted DSB’s motion to dismiss plaintiff’s Complaint and denied Plaintiff’s cross-motion to amend. On appeal, the Appellate Division, Second Department, affirmed the lower court’s order finding plaintiff’s proposed amendments to be palpably insufficient and patently devoid of merit.

January 18, 2023

An order was issued by the Appellate Division, Second Department, affirming the dismissal of a civil rights action alleging that a Long Island Town had violated the constitutional rights of a contract vendee who had agreed to purchase a property subject to obtaining necessary approvals from the Town for its proposed development. The Plaintiff argued that the Town had violated its due process rights by issuing a positive SEQRA declaration, thereby requiring a more detailed environmental analysis and extending the process for considering its applications beyond the contingency period for obtaining municipal approvals in its contract with the property’s owner, prompted it to cancel its contract to purchase the property and abandonment its applications for municipal approvals. The lower court dismissed their action for money damages under 42 U.S.C. § 1983, and the Appellate Division affirmed explaining that a local government’s discretionary decision to engaged in a more detailed environmental analysis as part of its process for considering a land use application is not a final decision that inflicts an actual concrete injury from which money damages can be sought in a civil rights claim.

January 13, 2023

DSB obtained an Order denying a motion to dismiss a civil rights claim – in one of the rare instances where DSB represented the Plaintiff – where a volunteer fire fighter argued that he was terminated without due process and in retaliation for exercising his First Amendment rights. The Court found that, at the pleading stage, a non-descript directive to appear at a meeting followed by a very short meeting informing the Plaintiff that he was being terminated for poor attendance stated a claim for a violation of the Due Process Clause, and the Plaintiff’s allegation that the attendance issue was mere pretext and he was actually terminated in response to having expressed a desire to run for an elected leadership position so as to prevent and discourage challenges to the current leadership’s control over a publicly-funded quasi-governmental organization sufficiently stated a claim for violation of the First Amendment.

December 20, 2022

DSB successfully obtained a consent order resolving an action for injunctive relief regarding local zoning, land use, and building code violations. The property in Mastic Beach had been used for, among other things, a gas station and auto repair shop since before the local zoning code was enacted, but the usage of the property had, at least in part, expanded and changed over time to the point that some of the usage was materially different than what had been grandfathered. When a resolution could not be obtained despite a series of appearance tickets and enforcement actions in the local District Court, DSB was retained to commence an action for injunctive relief in the New York State Supreme Court. Certain issues were resolved immediately, and the blighted conditions in the exterior of the premises were addressed, but the question of defining the precise scope of what was allowed to continue as a grandfathered use was referred to a hearing. Prior to the hearing, the Town and the property owner were able to reach a voluntary agreement and enter in to a consent order as to what uses were permissible and what aspects of the property needed to be brought up to code.

December 14, 2022

DSB obtained an Order allowing the Town of Southold to take title to a parcel of land near Love Lane to establish a park, over the property owner’s objection, via eminent domain. The property owner challenged the eminent domain proceeding, and brought a related federal action along with a national non-profit organization based out of Arlington, Virginia, seeking to change the law as to what constitutes “public use” under the takings clause of the Fifth Amendment.

November 16, 2022

DSB moved for summary judgment on a case involving New York Labor Law claims where plaintiff fell from an A-frame ladder which was placed by Plaintiff against a house to do framing.  DSB, representing the owner of the home, filed a motion for summary judgment arguing, among other things, that the set up of the ladder in the closed position was the sole proximate cause of the accident. After DSB filed the motion, plaintiff’s counsel agreed to discontinue the action with prejudice.

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