News from Devitt Spellman Barrett, LLP


February 6, 2018

DSB successfully moved to dismiss claims against two cooperative owner defendants in a Supreme Court Bronx County case, where a laborer claimed he was injured during the course of a renovation project within defendants’ unit. The Court, upon defendants’ motion for summary judgment, found that defendants could not be held liable pursuant to Sec. 240 and/or 241 of the New York State Labor Law, as they were the owners of a one-family residential cooperative unit, who contracted for but did not direct or control any of the ongoing construction work. The Bronx Supreme Court further found that the defendants did not create or have notice of the allegedly dangerous condition which plaintiff claimed caused his accident.

February 9, 2018

DSB successfully moved to dismiss the federal lawsuit of a school bus driver who claimed that a school district in eastern Long Island had charged her with misconduct and suspended her without pay because of her intimate relationship with a female co-worker. After reviewing Plaintiff’s due process and free speech claims, the federal court found that there was no plausibility to the bus driver’s claim that the district had violated her right to an intimate relationship with her co-worker and also found that the Plaintiff should have raised the issue of her seven-month suspension without pay in state court. DSB further successfully opposed Plaintiff’s attempt to amend her Complaint and dismissed all of Plaintiff’s claims against the district with prejudice.

February 5, 2018

The firm recently obtained summary judgment in the Supreme Court, Queens County, on behalf of its client in a trip and fall case. Plaintiff allegedly tripped over fencing or chicken wire laying on the public sidewalk abutting defendant’s owner-occupied premises, sustaining facial and back injuries. DSB moved for summary judgment on two grounds: 1) lack of notice of the alleged defect and 2) under the homeowner exception in New York City Administrative Code sec. 7-210, the defendant had no duty to keep the public sidewalk reasonably safe. While plaintiff argued that the defendant retained the wire fencing after the accident, alleging creating an issue of control, the court rejected plaintiff’s argument and dismissed Plaintiff’s Complaint.

January 29, 2018

The firm successfully moved to dismiss a claim against a large Suffolk County school district alleging improper/insufficient supervision of students. Plaintiff, a high school student, claimed to have been injured in a gym locker room as the result of an altercation with several other boys. The Court held that the District established that adequate supervision was provided and that any perceived lack of supervision was not a proximate cause of plaintiff’s injuries, as he was a voluntary participant in the altercation.

January 29, 2018

DSB wins another Motion for Summary Judgment. The firm was successful in dismissing plaintiff’s complaint against a Suffolk County homeowner. Plaintiff alleged that she had tripped and fallen on the public sidewalk abutting the defendant’s home, fracturing her left wrist. The Court granted the firm’s motion for summary judgment, finding that although the Islip Town Code imposed a duty on the defendant to maintain the sidewalk, it does not impose tort liability for a violation of that duty. The court also found that the defendants did not create the alleged defective condition nor cause it to exist from any special use.

January 26, 2018

The firm was successful on behalf of a municipal client in temporarily blocking the application of a mining company to expand its mining operation on the grounds that the applicant failed to demonstrate that the proposed expansion was authorized under the municipality’s local zoning laws. The firm petitioned the State Department of Environmental Conservation seeking full party status for the Town in the Administrative Proceeding commenced by the applicant so that the Town could oppose the applicant’s appeal of its permit expansion denial, and in so doing prevailed upon the Administrative Law Judge that the failure of the applicant to demonstrate compliance with local zoning laws required the proceeding to be suspended until proof of compliance with the local law was established. In his decision, the Administrative Law Judge noted that a Long Island municipality’s authority to prohibit mining includes not only the power to prohibit the development of new mines but the power to impose reasonable restrictions to limit the expansion of, and eventually extinguish, prior nonconforming mining uses within such municipalities.

January 25, 2018

DSB met the burden of proof on a weather-related defense. The firm successfully handled a personal injury action against the Islip School District as a result of a slip and fall on ice at the Islip High School. DSB presented the evidence to the court in admissible form, showing that at the time of the accident there was a storm in progress. The firm’s motion for summary judgment was granted dismissing the Complaint.

January 24, 2018

The firm successfully defended homeowners in a personal injury action arising out of a trip and fall on a public sidewalk in Richmond County. Despite evidence of post-incident remedial action, the Court granted the defendants’ motion for summary holding that the defendants were entitled to the exemption from liability contained in New York City Administrative Code 7-210(b). The defendants established that no repairs were made to the sidewalk prior to the plaintiff’s accident and the alleged defect in the sidewalk did not arise out of a special use of the sidewalk by the defendants.

January 17, 2018

A missing handrail doesn’t always mean liability. The firm was successful in having a claim against two Suffolk County homeowners dismissed. Plaintiff, a cleaning person, claimed to have been injured when she slipped and fell on defendant’s front walkway. The Court agreed with defendant’s position that water upon the walkway from the recent use of an irrigation system did not qualify as a dangerous and/or defective condition. The Court further opined that the three-step stairway in an outdoor area was not required to have a handrail pursuant to the applicable building code.

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