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.
DSB successfully defended a housing discrimination complaint before the Office of Housing and Urban Development, State Division of Human Rights and the Department of Justice; all three agencies closed their files without finding evidence of discrimination, noting that the Village had legitimate, nondiscriminatory reasons for denying petitioner’s requested variance.
The firm successfully obtained a defendant’s verdict on six of seven causes of action on behalf of three Eastern Suffolk County Village Police Officers and Village, in Federal Court in an excessive force case. The plaintiff’s surviving family members alleged that the Police Officers used excessive force, failed to intervene to protect the plaintiff and assaulted and battered the decedent. The plaintiff also alleged that the Village failed to properly train the Officers in the proper techniques for interacting with emotionally disturbed people. During the Officers’ attempt to place the individual in custody, in order to escort him to obtain psychiatric treatment, a scuffle ensued, causing the plaintiff and the Officers to fall to the ground. During the struggle, the Officers employed a Taser device (in stun mode) and oleoresin capsicum (O.C. or pepper spray). The subject was ultimately restrained with handcuffs and ankle ties. In the resulting lawsuit, plaintiff’s family claimed that the Officers’ alleged use of excessive force, their failure to intervene to protect the plaintiff and the Village’s failure to properly train the officers caused the plaintiff’s injuries and death. After a two week trial, the jury returned a verdict in favor of the Police Officers and Village on six of the seven causes of action. Despite their finding of liability on the one cause of action, the jury did not award any monetary compensatory or punitive damages.
The firm successfully obtained a defendant’s verdict on behalf of an Eastern Suffolk County Town Police Officer and Town, in Federal Court. The female plaintiff alleged that the Police Officer used excessive force, assaulted and battered her during a routine traffic stop. The plaintiff was pulled over by the Officer for using her cellular telephone while driving. During the stop a scuffle ensued, causing the plaintiff and the Officer to end up on the ground. As a result of the alleged excessive force, the plaintiff’s hamstring was torn from her hip bone. After a week-long trial, the jury returned a verdict in favor of the Police Officer and Town, finding no excessive force was committed.
DSB successfully won a motion for summary judgment on behalf of its client, a snow removal subcontractor, defeating claims by a Plaintiff who was injured in the parking lot of a large whole sale store as well as cross claim by the store based upon provisions in the snow removal contract which called for indemnification of the store.
On April 26, 2018, DSB won a case for a village on the east end of Long Island involving the Freedom Of Information Law (FOIL). A security company, which was owned by the village’s former chief of police, had requested that the village provide it with documents involving an investigation into alleged violations of the village ethics code by village employees with outside jobs. The village provided all responsive documents except those pertaining to police officers – state law exempts police misconduct records from FOIL. However, after the former police chief signed a release for his records, the village provided the records. Claimants brought suit alleging the records were not turned over pursuant to the law in a timely manner. In a written decision, the Court rejected the security company’s many claims, finding that the village timely provided all required documents and finding that the village was correct in initially withholding the records of the police chief. In the end, the Court dismissed the security company’s lawsuit in its entirety.
The law firm is proud to announce that Jaclyn L. Dar Conte has joined the firm as an Associate working in Insurance Defense litigation.