News from Devitt Spellman Barrett, LLP


January 10, 2024

DSB was successful on a motion to renew a prior summary judgment motion on a Kings County Labor Law case. Plaintiff allegedly fell from an extension ladder while performing exterior façade work at our client’s home. Plaintiff claimed the accident occurred because the extension ladder failed and collapsed. As a result of the accident, plaintiff underwent had an L1-L2 laminectomy, and a T11-L4 posterior fusion with instrumentation. This firm had previously filed a summary judgment motion before depositions, the result of which was a dismissal of the Labor Law section 240 and 241 claims based on the homeowner’s exception. However, based on an affidavit of plaintiff that swore our client owned the ladder, the common law and Labor Law section 200 aspects of the motion were denied. During plaintiff’s deposition, he admitted that he never read the affidavit, which was in English, and that the basis of the affidavit was not his own knowledge. He also admitted at the deposition that there was no indication the ladder would fail before the accident. After the deposition, we filed a motion to renew, which was granted and dismissed the remainder of the claims based on lack of notice of any defect.

December 27, 2023

DSB obtained an Order from the Appellate Division, Second Department, reducing a damages award for past pain and suffering by more than half, from $634,000 to $300,000. The 20-year old Plaintiff had been rear-ended by a bus in a mall parking lot, and claimed that she sustained two cervical disc herniations that significantly limited the range of motion in her neck and caused tingling and spasms in one of her arms. The trial judge declined to disturb the jury’s verdict, but on appeal DSB’s municipal defense team successfully argued that the jury’s award deviated so materially from reasonable compensation that it needed to either be reduced to an amount comparable to what has been awarded in prior cases for similar injuries or remanded for a new trial on damages.

December 11, 2023

DSB obtained a dismissal of third-party claims against a snow removal contractor in a case involving personal injuries alleged by plaintiff while traversing her employer’s “side drive up” for an ATM machine. DSB’s expert, a forensic meteorologist, through certified weather records, photographs and deposition testimony was able to prove that it had only stopped snowing about an hour and a half before Plaintiff’s accident. The Court held that the alleged hazardous condition that caused plaintiff’s accident resulted from a “storm in progress” and the third party defendant, snow removal company, did not have an adequate period of time following the storm to remedy the hazardous conditions.

December 11, 2023

DSB obtained an Order upholding the validity of a local law through which a Long Island town re-zoned five acres of town-owned land for use as affordable housing. Among other things, locals who challenged the measure, argued that the land had been implicitly dedicated as a public park and thus, under the public trust doctrine, required State approval before being put to a different purpose. Initially, the Court issued a temporary restraining Order preventing the Town from moving forward with considering bids from developers; but, after careful consideration, the Court agreed that the Town was able to re-zone the parcel for affordable housing without needing to request State approval and that the local law had been validly passed by the Town Board.

December 1, 2023

DSB obtained summary judgment on behalf of a residential property owner in Bronx County, New York in a personal injury action involving an infant who was injured due to a falling flower planter on a wall. The infant Plaintiff climbed onto the exterior wall and the flower planter dislodged and fell onto him. The Court held there was no evidence that the planter was inherently dangerous and defective and the homeowner could not reasonably be expected to guard against plaintiff’s decision to climb a wall when there was a safe means of egress available to the child.

November 30, 2023

DSB obtained an order partially awarding summary judgment in favor of a real estate brokerage in a contract/commission dispute. After the client received a 6-figure commission from the sale of a commercial property, the prior owner of an office it had acquired claimed that even though they were not involved in the deal they were entitled to the commission based upon an argument that the listing violated a covenant not to compete. The Court found at least a technical violation of the non-compete clause, but dismissed the action to the extent seeking disgorgement of the commission itself and ruled that the plaintiff’s damages, if any, would be limited to provable lost profits caused by the breach.

September 21, 2023

DSB Partner Justin Rowe obtained a defense verdict in Supreme Court, Nassau County, on behalf of a local municipality. The infant plaintiff fell from playground equipment sustaining a complex dual fracture of her arm. Plaintiff alleged the Town was negligent in its design of a playground and in the placement of signs indicating the age appropriateness of various playground equipment. DSB argued that the signage and design was safe, and plaintiff’s father failed to read the signs that were present. The jury unanimously agreed and found the playground was safe.

July 18, 2023

DSB was successful in moving for summary judgment to dismiss a claim for strict liability predicated on a dog bite. DSB established that its client neither owned nor controlled the dog in question. The Supreme Court, Suffolk County, found that DSB’s client could not be liable under a theory of strict liability for a dog that she neither owned nor controlled. Accordingly, the complaint was dismissed.

July 13, 2023

DSB obtained orders from the United States Court of Appeals for the Second Circuit affirming the dismissal of three lawsuits against a Long Island school district that had been accused of discriminating against or otherwise violating its special education obligations with respect to a disabled student. The student’s parents had a preference for a particular middle and high school, which did not have an appropriate class in the student’s age range that met his needs, and thus the District offered and recommended placement in a special education class at another nearby school. This prompted numerous lawsuits and eight years of litigation, wherein the parents argued that the district failed to accommodate and generally discriminated against the student, that it violated the Equal Protection Clause by not having an appropriate class at the preferred schools at the time their child enrolled but starting one a few years later when a group of younger disabled students moved up from elementary school, and that it had violated its obligations under the Individuals with Disabilities in Education Act and related state and federal regulations. The lower court dismissed the actions and the parents appealed. After hearing extensive argument, the Second Circuit took the unusual step of holding its decision in abeyance and referring the matter for mediation, and the case became the first in-person mediation conducted by the Court’s CAMP program since Covid. The parties eventually advised the Court that they had reached an impasse and asked that a decision be issued, resulting in Orders affirming the Judgments in favor of the school district for substantially the reasons DSB had argued before the lower court an on appeal.

March 27, 2023

DSB was successful in moving for summary judgment on behalf of a municipality on Long Island. The Supreme Court, Suffolk County, agreed with DSB that the municipality did not owe plaintiffs’ decedent a duty of care for a roadway for a roadway outside of the municipality’s jurisdiction. Additionally, the municipality did not create a dangerous condition upon the roadway by failing to replace a lightbulb along the roadway. Accordingly, the complaint was dismissed.

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