November 13, 2018

DSB won summary judgment on behalf of the Town of East Hampton dismissing a CPLR Article 78 proceeding which sought to nullify a local law which prohibited a take-out food store as a second principal use or an accessory use on a property zoned for transient motel or resort use. The Supreme Court agreed that petitioner’s various challenges to the law lacked merit.

November 12, 2018

DSB won a summary judgment motion on behalf of Queens County commercial tenants sued by a patron who tripped and fell on an A-frame sign on the sidewalk outside of their business. Plaintiff, who sustained very serious injuries, claimed that the placement of the sign was a hazardous condition and that the hazard was compounded by dim lighting. In the motion, DSB argued that the sign was both open and obvious and not inherently dangerous and that there was no evidence that any defective or absent lighting caused or contributed to the accident. On the eve of trial, the Court granted DSB’s motion and dismissed the complaint in its entirety, finding that there was no duty to protect or warn against an open or obvious condition, which, as a matter of law was not inherently dangerous, and further, that there was no evidence that lighting conditions proximately caused the accident. Case dismissed.

November 5, 2018

DSB successfully argued a summary judgment motion in the Supreme Court, Kings County to dismiss a Third Party Complaint brought against its client in a pedestrian trip and fall case. In the action, Plaintiff allegedly tripped and fell on a sidewalk defect adjacent to the Defendant’s home. The Defendant brought a third party action against DSB’s client alleging that the defect was actually created by DSB’s client when repair work had been done to the sidewalk some two years earlier. DSB’s client denied doing any repair work to the sidewalk. DSB moved for Summary judgment and argued that the defect was adjacent to Defendant/Third party Plaintiff’s premises and any allegation that Third Party Defendant replaced the sidewalk and created the defect was unsupported by the evidence. The court granted the motion dismissing the Third party Complaint.

October 18, 2018

DSB was successful moving for summary judgment to dismiss a trip and fall claim against a church in Suffolk County. Plaintiff, a visitor to the church for her granddaughter’s play, tripped and fell over a height differential between the church parking lot and the public sidewalk. After considering the motion, the Court concluded that any height differential between the driveway and the sidewalk was trivial in nature and thus not actionable.

October 15, 2018

U.S. District Court Judge Bianco granted DSB’s motion to dismiss a lawsuit brought by a security company owned by the former police chief of a village in the Hamptons. The lawsuit claimed that Village Mayor and a Village Trustee forced the police chief to divest himself of his ownership rights in the company in order to give a competitive edge to security businesses in which the Mayor and Trustee had financial interests. The Court found that Plaintiff’s claims of violations of its constitutional right to equal protection and due process and of federal conspiracy were time-barred. According to Judge Bianco, the alleged divestiture of the business, which took place in 2009, could not give rise to federal claims in 2017, long after the three-year limitations period expired. Although the Court gave Plaintiff the option of filing an amended complaint if it could allege wrongful acts within the limitations period, Plaintiff’s attorney informed the Court on October 15, 2018, that Plaintiff would not be amending the Complaint, thereby ending the lawsuit.

October 11, 2018

DSB successfully moved to dismiss a proceeding against a Town Planning board by a petitioner who averred that the Board’s requirement of a traffic study in connection with its site plan application was arbitrary and capricious. The Court agreed that the Board’s determination was not final and the proceeding was not ripe for review.

October 5, 2018

Kevin Spellman and John Denby are pleased to announce that Nicholas M. Brino has been elected Equity Partner of Devitt Spellman Barrett, LLP effective October 5, 2018.

Nick joined the firm in 2004 as an Associate. He became a contract partner in October 2013. He has proven himself to be a trustworthy leader who can be relied upon to consistently focus on developing the firm’s business and interests, for the benefit of our clients,  customers and all employees of the firm.  We have the utmost confidence in Nick’s abilities.

September 12, 2018

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.

September 11, 2018

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.