Category: Firm News

DSB was successful in moving to dismiss the complaint on behalf of a Suffolk County school district. Plaintiff, brought an action on behalf of his minor son who has special needs, alleging that the school district discriminated against plaintiff’s son violated his son’s civil rights under Title II of the Americans with Disabilities Act; Section 504 of the Rehabilitation Act of 1973; the New York State Human Rights Law; and 42 U.S.C. Section 1983 by refusing to allow him to serve as a volunteer in the school district’s summer recreation program. DSB argued that the plaintiff’s son could not be accommodated as a volunteer absent fundamentally changing the nature of the activity itself. The United States District Court for the Eastern District of New York converted DSB’s motion to dismiss into a motion for summary judgment and granted DSB’s motion and dismissed the plaintiff’s complaint with prejudice.

(A “Decision of Interest” in the New York Law Journal, Volume 264—No. 32, dated 08/14/20)
DSB was successful in moving to dismiss the complaint on behalf of a Suffolk County school district. Plaintiff, brought an action on behalf of his 16-year-old son who has developmental disabilities, alleging that the school district violated his son’s due process rights because it opposed plaintiff’s request to have a non-party entity film one of plaintiff’s son’s educational hearings and the Independent Hearing Officer’s ruled not to permit video or audio recording of the hearing. Plaintiff initiated an administrative proceeding, but subsequently voluntarily withdrew it before a hearing was held. DSB moved to dismiss plaintiff’s complaint arguing that plaintiff’s voluntary withdrawal of the administrative complaint rendered the action moot. The United States District Court for the Eastern District of New York granted DSB’s motion and dismissed the plaintiff’s complaint with prejudice, determining that the action is moot.

DSB was successful in moving for summary judgment in an action for personal injuries on behalf of a subcontractor. Plaintiff sustained injuries as a result of a construction worker vacuuming debris that blew into her face on May 31, 2016. The Supreme Court, Bronx County, determined that DSB established its prima facie entitlement to judgment as a matter of law by demonstrating that the subcontractor did not perform any work at the subject store before the accident, and was contracted to perform work on or about September 12, 2016. The Court granted DSB’s motion for summary judgment and dismissed plaintiff’s complaint.

DSB was successful in moving for summary judgment on behalf of a municipality on Long Island. Plaintiff commenced a subrogation action to recoup losses that it paid to its insured as a result of a car accident. The District Court of Suffolk County found that DSB affirmatively demonstrated that the police officer involved in the car accident with plaintiff’s subrogor was engaged in emergency operations. Pursuant to Vehicle and Traffic Law § 1104(e) the driver of an emergency vehicle engaged in emergency operations is entitled to certain privileges and will only be liable where its conduct amounts to a reckless disregard for the safety of others. The Court determined that DSB established its prima facie entitlement to judgment as a matter of law and granted DSB’s motion for summary judgment dismissing plaintiff’s complaint in its entirety.

DSB was successful in moving for summary judgment on behalf of an out-of-possession landlord. Plaintiff slipped and fell on a step while exiting the owner’s property. The Supreme Court, Suffolk County, determined that DSB established its prima facie entitlement to judgment as a matter of law by demonstrating that the owner was an out-of-possession landlord who had relinquished control over the premises to his tenants. Furthermore the owner was not contractually obligated to repair premises conditions and did not endeavor to perform any such maintenance. The Court granted DSB’s motion for summary judgment and dismissed plaintiff’s complaint.

DSB successfully argued a motion for summary judgment on behalf of homeowner in Queens. Plaintiff alleged he fell on snow and ice on the public sidewalk abutting defendant’s premises. Through use of meteorological testimony, DSB was able to establish that plaintiff’s accident occurred during a snow event and the Court dismissed the Complaint based upon the showing of “storm in progress.”

DSB was successful in obtaining summary judgment on a Bronx County case in which a Plaintiff was injured on an defective sidewalk, which defects were allegedly caused by the defendant’s special use of the sidewalk. The portion of the sidewalk where the accident occurred was at the location of defendant’s driveway, which led to four attached garages. DSB was able to prove that the sidewalk cracks upon which Plaintiff fell pre-existed the defendant’s ownership of the premises and therefore, were not created by the defendant’s special use. The court found that DSB had met our burden of proof on the motion, which was not rebutted by Plaintiff. The complaint was dismissed.

DSB was successful in moving for summary judgment on behalf of a municipality on Long Island. Plaintiff tripped and fell from a walkway located within a marina and sustained injuries as a result of her 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 on sidewalks and that the municipality had not received the requisite prior written notice. The Court further found that DSB demonstrated that a walkway was the functional equivalent of a sidewalk; therefore, the walkway was encompassed under the prior written notice statute. The Court granted DSB’s motion for summary judgment and dismissed plaintiff’s complaint in its entirety.

Devitt Spellman Barrett successfully defended a municipality against constitutional and SEQRA claims asserted in connection with the municipality’s enactment of a short-term rental law. The proceeding/action was summarily dismissed in its entirety, despite plaintiffs’ claims that they were entitled to a hearing.

DSB was successful in having a complaint dismissed against our 17 year old client with special needs, who was sued due to alleged harmful physical contact between our client and her “one on one” aide in school. Plaintiff alleged the special needs student acted out and fractured Plaintiff’s jaw when plaintiff instructed her to go to class.

A mentally challenged individual may be liable in negligence even though she lacks capacity to understand or control her actions. However, we argued that the record in our case established, as a matter of law, that our client lacked the capacity to be governed by any standard of culpability. In the alternative, we argued that plaintiff implicitly assumed the exact risk that caused her injury, a doctrine that can and should apply in the professional arena as well the more commonly applied sports scenario. The court determined that we sustained our burden of demonstrating the absence of a triable issue of fact, holding that given the testimony offered in support, the child had no duty to plaintiff. The court did not expressly determine that plaintiff assumed the risk, but noted that plaintiff was enlisted to assist in addressing conduct which was the reason for her assignment. Case dismissed.