Category: Firm News

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.

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.

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.

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.

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.

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.

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.

DSB was successful in moving for summary judgment on behalf of a residential tenant in a personal injury action. Plaintiff, a visitor to the property, allegedly fell on the front walkway, which she asserted was covered with leaves and/or acorns. DSB moved for summary judgment because the evidence presented by Plaintiff did not definitively establish the cause of her fall. The Court agreed. Further, the Court noted that even if the plaintiff’s testimony did establish leaves and/or acorns as the cause of the fall, such materials were both open and obvious conditions that were not inherently dangerous.

DSB successfully moved for summary judgment on behalf of an East End municipality in a trip and fall lawsuit. Plaintiff was allegedly injured when she tripped and fell on a public sidewalk; the Court determined that judgment as a matter of law was warranted, dismissing the Complaint given that DSB submitted conclusive proof on the motion that the defective sidewalk was not within the borders of the municipality.

DSB successfully obtained an Order dismissing a lawsuit against an east end Town based upon negligent building inspection. Plaintiff argued that the Town’s building inspector had failed to advise them of defective work by their contractor or stop the contractor from continuing to work on their project, leading to significant losses when they had to demolish and re-build a partially completed extension. We argued, and the Court agreed, that based upon well-established tort principals a negligence claim cannot be asserted against a municipality related to its performance of a government function based upon allegedly breaching of a duty owed to the general public, but instead a plaintiff can only assert such a claim if the municipality breached a duty owed to them specifically based upon a special relationship between them and that governmental entity.