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.

DSB was successful in moving for summary judgment on behalf of a municipality on Long Island. Plaintiff was injured while riding her bicycle along a bike route. The Supreme Court, Suffolk County, determined that the municipality did not owe a duty of care to the plaintiff because the municipality neither owned, controlled nor maintained the accident location. The Court further concluded that the municipality affirmatively established its entitlement to judgment as a matter of law and dismissed the complaint and cross-claims asserted against the municipality.

DSB was successful in moving for summary judgment on behalf of a snow removal company in Kings County. Plaintiff was allegedly injured when she slipped and fell on ice in the parking lot of a shopping center. The court found that defendant’s limited contractual undertaking to perform snow removal services did not render defendant liable for plaintiff’s injuries. Defendant affirmatively established its entitlement to judgment as a matter of law and plaintiff and codefendant failed to rebut defendant’s showing.

DSB Associate Christi Kunzig has been selected by Super Lawyers Magazine as a “Rising Star” on their 2020 New York Metro “Rising Stars” list. Each year, no more than 2.5 percent of the lawyers in the state are selected by the research team at Super Lawyers to receive this honor. Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a comprehensive and diverse listing of exceptional attorneys. The Super Lawyers lists are published nationwide in Super Lawyers Magazines and in city and regional magazines and newspapers across the country.

DSB was successful in federal court, in the Eastern District of New York, in obtaining summary judgment on all claims on behalf of a Town on Long Island’s east end and its employees in an action brought by a plaintiff pursuant to 42 U.S.C. §1983 alleging several constitutional violations.  The federal District Judge adopted the report and recommendation of the federal Magistrate Judge in rejecting plaintiff’s claims for false arrest, malicious prosecution, and Monell liability, as well as several state law claims, arising from plaintiff’s arrest and prosecution for lewd conduct committed at the Town’s golf course.   The complaint against the Town and its employees was dismissed in its entirety.

DSB successfully appealed from an interlocutory liability judgment involving a plaintiff who was injured when the bicycle he was riding struck the edge of an elevated boardwalk in a municipal park. The Appellate Division, Second Department agreed that the municipal defendant did not have prior written notice of any alleged defect and that its actions in mowing the grass near the boardwalk did not affirmatively create a defective or dangerous condition. The matter was remanded for a new trial on liability.

DSB was successful in moving for summary judgment on behalf of a municipality on Long Island.  Plaintiff, an insurance company subrogated to its insured driver’s rights, claimed that they were owed reimbursement for damages paid as the result of a motor vehicle accident between their insured and a municipal highway vehicle.  The Court, in dismissing the case, found that the municipal vehicle was engaged in work upon a highway and was thus entitled to the protections of Vehicle and Traffic Law Sec. 1103(b), which requires a showing of reckless conduct; the Court further concluded that the actions of the driver of the municipal vehicle, while perhaps inattentive, did not rise to the level of recklessness as a matter of law.

DSB was successful in moving for summary judgment on behalf of a Suffolk County school district. Plaintiff, a high school student, was injured while attending an off campus BOCES program. The Court determined that the District did not owe plaintiff a duty of care as plaintiff was not within their orbit of authority and was not injured on District property. The court further concluded that the student’s status as a special education student did not create a special duty towards him under the circumstances.

DSB was successful in moving for summary judgment on behalf of a construction company in Queens County. The plaintiff was allegedly injured when he tripped and fell over an uneven slab of sidewalk. The court found that the defendant neither owned, occupied, controlled nor made special use of the subject property and dismissed the complaint and cross-claims asserted against the defendant.

DSB was successful in Supreme Court, Suffolk County, in obtaining the dismissal of an Article 78 petition challenging a September 24, 2018 decision of the Zoning Board of Appeals of a town on Long Island’s east end, denying petitioner’s application for a variance to move an existing shed and an existing barn to a non-conforming area of the property and to construct a “hoop house” in a non-conforming area of the property. The Court determined that there were alternate locations on the property where the structures could be repositioned. The Court agreed that the ZBA’s determination had a rational basis and was neither arbitrary and capricious nor an abuse of discretion.