The Appellate Division, Second Department has affirmed an Order of the Supreme Court, Queens County, granting summary judgment to homeowner defendants represented by DSB. The plaintiff, a friend of the defendants, was injured when, while under the influence of alcohol, he dove head-first into a partially above-ground pool, sustaining injuries. The Court agreed that the plaintiff’s actions, in diving into a shallow pool while under the influence of alcohol, were the sole proximate cause of his injuries. Dismissal of the Complaint was affirmed.
DSB won a summary judgment motion dismissing the federal civil rights complaint of a fourth-grade teacher who was terminated by a Long Island school district after the police discovered an unlicensed fully loaded handgun in his glove box during a DWI stop in Southampton. Judge DeArcy Hall, ruling that no evidence supported plaintiff’s claim that the school district fired him because he was African-American, took the unusual step of noting that the plaintiff’s attorney’s unsupported factual allegations of racial discrimination were potentially sanctionable. The Federal Judge also dismissed due process claims against the defendants, finding that the school district provided the plaintiff with sufficient process by serving him with disciplinary charges and giving him an evidentiary hearing. Finally, the Judge dismissed the plaintiff’s claims for statutory damages for violations of COBRA, finding that the plaintiff had not been harmed by late notification of his COBRA rights.
DSB won summary judgment on behalf of a municipality and its police department in a case arising out of a motor vehicle accident. The court ruled that defendants successfully refuted plaintiff’s claims that the police vehicle was not responding to an emergency and, in any event, was operating in reckless disregard for the safety of others. Case dismissed.
DSB made another successful summary judgment motion in favor of a homeowner defendant in Bronx County. Plaintiff, a laborer, was injured while painting a commercial building when he stepped upon bamboo which was allegedly overgrown from defendant’s property. DSB established that, even if the bamboo was overgrown from defendant’s property, defendant had no duty to trim and/or remove any bamboo growing on the neighboring premises. That was the duty of the neighboring property owner.
The United States District Court for the Eastern District of New York granted DSB’s motion to dismiss a civil rights action that had been commenced against the Town of Southold, the Board of Town Trustees of the Town of Southold and an employee of the Town. The plaintiff property owners alleged that the Town, the Trustees, and the employee violated their rights to due process and equal protection, and deprived them of their rights under the First Amendment, in connection with a pending land use application for the construction of a house on waterfront property. DSB successfully argued that the complaint should be dismissed on several grounds, including lack of subject matter jurisdiction because the claims were not ripe for judicial review, for failure to state a cause of action, and upon the ground that the federal court should abstain from deciding the plaintiff’s request for injunctive and declaratory relief while a criminal court proceeding related to the land use application was pending in the Town Justice Court.
DSB was successful in obtaining summary judgment on behalf of a homeowner in Staten Island. Plaintiff, a teacher at a local school, claimed to have slipped and fallen on the sidewalk adjacent to defendant’s property as she was walking to work. The Court found that plaintiff’s fall occurred during an ongoing storm, establishing defendant’s prima facie entitlement to judgment as a matter of law. While plaintiff asserted that the dangerous condition pre-existed the storm and was attributable to poor removal efforts, the Court was satisfied with defendant’s unrebutted testimony that the sidewalk had been cleared down to the concrete based upon photographs taken 20 minutes post-incident which confirmed that there was only a trace amount of snow on the ground which was from the ongoing storm.
The Appellate Division, Second Department affirmed an order of the Supreme Court granting a motion for summary judgment made on behalf of a homeowner represented by Devitt Spellman Barrett, in a sidewalk slip and fall case. The Court agreed that the homeowner was exempt from liability imposed by the Administrative Code of the City of New York because the property adjoining the sidewalk was a single-family owner occupied residence used solely for residential purposes. The Court also agreed that the homeowner established that she did not create the defective condition, notwithstanding the conclusory and speculative allegations of plaintiff’s expert witness.
The Appellate Division, Second Department affirmed an order granting summary judgment made by DSB on behalf of the Village of Greenport based on the absence of prior written notice. The Court agreed that plaintiff’s notice of claim did not contain an affirmative negligence theory of liability (an exception to the prior written notice requirement) and rejected plaintiff’s attempt to assert an affirmative negligence theory of liability in an amended notice of claim years after the expiration of the statute of limitations.
DSB won summary judgment on a sidewalk trip and fall case in Supreme Court/Queens County, where it was alleged that the area of the sidewalk where Plaintiff fell was the driveway apron of defendant’s home and the special use created the alleged defect. The Court granted the motion for summary judgment indicating that defect was on the sidewalk rather than driveway apron and no expert testimony was offered to establish that the defect arose from the homeowner’s special use of the area. Any allegations that the special use caused the defect were speculative. Since the premises was an owner-occupied one family residence, the exception to Administrative Code sec. 7-210 applied and the homeowner had no liability under the section. Case dismissed.
Ted Sklar, counsel to the firm and a member of the Commercial Division Committee of the Suffolk County Bar Association, has contributed an article titled “Thirty Years of Practicing Law under the Sanctions Rule: Section 130.1.1” to the May 2018 edition of The Suffolk Lawyer, the official publication of the Suffolk County Bar Association. The article summarizes the law and regulations pertaining the awarding of sanctions against counsel for engaging in frivolous conduct in civil litigation.