News

December 5, 2018

The Appellate Term, Second Department, has recently decided that a dismissal by the Southampton Town Justice Court of four accusatory instruments charging a defendant sand and gravel mine with violating the Southampton Town Code was made in error, and the Court reinstated the charges. The defendants had argued, in obtaining the Justice Court dismissal, that the Town’s regulation of land use activities violated the supersession clause of the New York State Mined Land Reclamation Law, which they argued preempted the authority of the Town to regulate mining and ancillary activities via local zoning rules. Devitt Spellman Barrett argued on behalf of the Town, and the Court agreed, that the defendants’ receipt and processing of road debris, including concrete and asphalt, were unrelated to mining under the State statute at issue and therefore not preempted.

November 30, 2018

DSB successfully moved for summary judgment In the Supreme Court, New York County, on behalf of a Manhattan store owner in an action brought by a Plaintiff pedestrian, who was injured on a public sidewalk when he tripped and fell on a defect on the sidewalk. DSB argued that the shop, a tenant occupying one of two commercial spaces, owed no duty to the pedestrian to keep the sidewalk in a reasonably safe condition. The Court agreed and further found that there was not enough evidence to prove that the alleged defect was located in front of the tenant’s shop, thus eliminating any cross-claims pursuant to the shop’s lease with the landlord.

November 30, 2018

The firm prevailed in the state Division of Human Rights where it defended a public school district in an age discrimination claim filed by a food service worker. The complainant alleged that she was involuntarily transferred as a result of the district’s animus toward her age. The firm was able to show that the transfer came as a result of the complainant’s conduct and established, through the use of the District’s employee demographics, that age was not a factor in the employment decision. The Division agreed and dismissed the Complaint.

November 26, 2018

DSB was successful in moving to dismiss claims against its client which was an out-of-state wholesaler of “vapor” products. Plaintiff was allegedly injured when his “vape device” suddenly exploded in his pocket; he commenced suit against the retailer where he allegedly purchased the device. The retailer then brought third-party claims against the wholesaler of a component part, claiming that it was provided a defective battery for the device. The Court, in dismissing all claims, found that plaintiff could not definitively establish where he bought the device or the battery allegedly involved, thus precluding any products liability and/or breach of warranty claims.

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.

November 1, 2018

DSB prevailed before the state Division of Human Rights where it defended a public school district in a claim premised on alleged unlawful discrimination based on ones prior criminal conviction brought by an applicant who was denied a position as a food service worker. The complainant alleged that the denial of the position for which he applied was based on a discriminatory animus for his prior criminal convictions which he disclosed in his application. The firm successfully showed that the employment decision was based on legitimate non-discriminatory reasons, resulting in the dismissal of the 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

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.