Category: Firm News

DSB prevailed on appeal to the Appellate Division, First Department on a premises liability claim where the property owner sought common-law and contractual indemnification from the firm’s client, a commercial tenant in a strip mall.  The Appellate Division, First Department unanimously agreed that the commercial tenant neither occupied nor controlled any portion of the sidewalk, as required to invoke the indemnification provisions under the lease.  Accordingly, the owner was not entitled to common-law or contractual indemnification.  The Appellate Division affirmed the lower court’s order dismissing the complaint in its entirety.

DSB was successful in moving for summary judgment on behalf of a Suffolk County homeowner relative to a “dog bite” incident. Plaintiff, a bicyclist, claimed to have been injured when defendant’s dog broke free from its retractable leash, chasing plaintiff and causing plaintiff to fall from his bicycle. The Court determined that the defendant did not have notice of the dog’s alleged vicious propensities and, further, that any alleged violation of the local “leash law” did not confer liability against defendant as New York law does not recognize a common law negligence cause of action for injuries caused by a domestic animal.

DSB’s trial attorney team obtained a defense verdict on a liability jury trial in Supreme Court, Kings County. Plaintiff alleged that he sustained injuries to his back, knees, and hand and subsequently underwent two surgeries, after he fell from a ladder while installing cable at defendant’s rental property. Plaintiff alleged the fall occurred because a decorative cornice that lined the top of the building’s façade was in an unsafe condition, which caused it to collapse under the pressure of plaintiff’s work ladder, causing Plaintiff to fall. The jury returned a unanimous verdict that the condition was not unsafe.

DSB succeeded in achieving dismissal of a Complaint against a school district in New York State Supreme Court, County of Suffolk, which sought money damages, including punitive damages, for breach of contract, negligence, and intentional torts, allegedly arising out of a school district’s refusal to enroll a child. The Court found that it did not have jurisdiction to consider plaintiffs’ claims that the district breached a contract regarding the enrollment of nonresident pupil — the Court held that the plaintiffs lacked standing to sue because the plaintiffs were at most, at most, incidental third-party beneficiaries of the agreement. The Court also found that plaintiffs’ tort claims were both untimely and without merit. In this regard, the Court decisively held that tort claims for money damage arising from a school district’s alleged failure to comply with the Individuals with Disabilities Education Act (IDEA) and related state regulations, are not cognizable as a matter of law. Finally, the Court found that the individual school board members were immune from suit and that punitive damages could not be recovered against a school district.

DSB received a complete defense verdict, following a jury trial, in the Supreme Court, Suffolk County, on behalf of the County of Suffolk and a retired bus driver. The action was brought by a passenger on the bus, who was injured when the bus was involved in a collision with another vehicle at a busy intersection. DSB argued that the accident was solely caused by the negligence of the other driver, and there was nothing that the County bus driver could have done to prevent or minimize the severity of the accident.

DSB successfully received a complete defense verdict, following a jury trial, in the Supreme Court, Nassau County, on behalf of a Plainview property owner. The action was brought by an elderly plaintiff pedestrian, who was injured on the sidewalk when she tripped and fell on a defect on the sidewalk. DSB argued that the condition was open and obvious and that the plaintiff should have seen and avoided the condition.

DSB was successful in obtaining summary judgment on behalf of a Village in Suffolk County. Plaintiff, a pedestrian, claimed to have tripped and fallen in a municipal parking lot, allegedly due to a surface defect from the placement of a dumpster. The Court found that the Village established its entitlement to judgment as a matter of law through proof that it did not receive prior written notice of the defect and that it did not create the defect through an affirmative act of negligence. The Court further found that plaintiff did not raise any triable issues of fact in opposition.

DSB won a summary judgment motion on behalf of a Bronx County homeowner.  Plaintiff, an employee of a moving company, was injured when he tripped over a brick retaining wall, which separated the driveway from the front walk while transporting the tenant’s armoire to the moving truck.  The homeowner established that the brick retaining wall was an open and obvious condition that was not inherently dangerous.

Devitt Spellman Barrett prevailed on appeal in a nuisance and trespass action asserted against its municipal client based on alleged flooding from the municipal roadway. The appellate court agreed that the municipality established that it did not divert water by artificial means onto plaintiff’s property or make any improvements that were not in good faith. The appellate court reversed the denial of summary judgment and dismissed the complaint in its entirety.

DSB was successful in moving to dismiss claims of false arrest and malicious prosecution against a Long Island School District.  Plaintiff, an employee of the district, had been accused of alleged inappropriate contact with a student.  The school district, following State Education regulations and New York State law, made a report to the Suffolk County Police Department.  The Court, in dismissing plaintiff’s Complaint, found that merely furnishing information to the police (which then exercised its own judgment as to the claim against plaintiff), did not play an active role in the prosecution and dismissed the case.