DSB won a motion for summary judgment in a premises case involving a school district in Suffolk County where the plaintiff slipped and fell on a wooden, rustic set of stairs built into the side of a hill at the very back of school property which leads into a wooded area and adjoining neighborhood. It was raining at the time of the accident and the stairs were wet. The stairs did not have a handrail. Plaintiff had gone up the steps to walk her dog. In the process of going back down the steps, the plaintiff fell and sustained a left comminuted radial fracture and ulnar styloid fracture of the wrist with open reduction and internal fixation. The basis of the motion for summary judgment was that the exterior steps were wet due to rainfall and the naturally occurring condition did not constitute a dangerous or defective condition. Further, there was no applicable building code which required a handrail for an exterior set of stairs that was not otherwise affixed to a building or structure. The court determined that plaintiff’s opposition failed to raise triable issue of fact and granted summary judgment to the school district.

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.

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.

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.

DSB Partner Joshua S. Shteierman was named to Super Lawyers – 2018 “Rising Stars” list for Labor and Employment counsel.

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.