News from Devitt Spellman Barrett, LLP


September 8, 2022

DSB successfully obtained an Order dismissing a lawsuit against an east end Town based upon negligent building inspection. Plaintiff argued that the Town’s building inspector had failed to advise them of defective work by their contractor or stop the contractor from continuing to work on their project, leading to significant losses when they had to demolish and re-build a partially completed extension. We argued, and the Court agreed, that based upon well-established tort principals a negligence claim cannot be asserted against a municipality related to its performance of a government function based upon allegedly breaching of a duty owed to the general public, but instead a plaintiff can only assert such a claim if the municipality breached a duty owed to them specifically based upon a special relationship between them and that governmental entity.

August 17, 2022

DSB was successful in moving for summary judgment on behalf of a municipality on Long Island. Plaintiffs were injured in a motor vehicle accident when their vehicle was struck by a non-party’s vehicle. Plaintiffs alleged that the municipality failed to properly delineate lines in the roadway thereby creating a hazardous condition. The Supreme Court, Suffolk County, found that DSB established its prima facie entitlement to judgment by demonstrating that temporary lines were placed in the roadway and did not proximately cause the subject accident.

August 16, 2022

In a personal injury action commenced against a Town in central Suffolk County, DSB prevailed on a motion for summary judgment in demonstrating that Plaintiff failed to establish that the Town had received prior written notice of the alleged defect on the sidewalk and further, the action was not timely commenced under the provisions of the General Municipal Law despite the tolling provision in place by the Governor’s Executive Order resulting from the pandemic.

August 4, 2022

In a personal injury law suit based upon New Your State Labor Law, an injured worked alleged serious injuries to both legs and back after a 1500 lb glass window fell from a flatbed truck on top of him. DSB first obtained a successful risk transfer for our client, the landowner, to a contractor and then obtained a stipulation of discontinuance from Plaintiff without payment as part of a multi-million dollar settlement.

August 1, 2022

The partners of Devitt Spellman Barrett, LLP are pleased to announce that, as a result of her hard work and dedication to the firm, Christi Kunzig has been named contract Partner. Ms. Kunzig has a tremendous track record of wins on motions for summary judgment and appeals on cases involving premises liability, labor law and municipal law. Ms. Kunzig joined the firm as an Associate in 2019.

July 13, 2022

DSB prevailed on appeal in a personal injury action against a commercial tenant. Plaintiff was allegedly injured when she tripped and fell over a restaurant’s sidewalk sign. The Appellate Division, Second Department, unanimously affirmed the Supreme Court, Queens County, orders dismissing plaintiff’s complaint and finding the sign to be open, obvious and not inherently dangerous as a matter of law. Accordingly, plaintiff’s claims were dismissed.

June 27, 2022

DSB was successful in moving for summary judgment on behalf of a Long Island school district in a personal injury action against the district by a student injured in an altercation at school. Plaintiffs, the guardian of an infant, commenced the action to recover damages for injuries sustained by the infant in an altercation with another student inside the school building. The Supreme Court of Suffolk County found that DSB affirmatively established that the altercation was unforeseeable as a matter of law and the level of supervision was appropriate. DSB’s motion for summary judgment was granted in its entirety.

June 16, 2022

DSB obtained summary judgment in a Labor Law action venued in Supreme Court, Bronx County where plaintiff fell from a ladder and sustained a displaced fracture of the left olecranon; disruption of the articular surface of the left elbow joint, and surrounding nerve damage that required open reduction and internal fixation with an olecranon plate and bi-cortical screws, a bust fracture of the lumbar spine at L1, and compression fracture of the thoracic spine at T12 that requires open reduction of T11 to L3 with spinal implants, pedicle screws and segmental Instrumentation on April 5, 2019, and an additional surgery to remove the hardware. The issue before the court was whether plaintiff was a volunteer or a protected laborer under the statute. Plaintiff argued that while he was not paid for the work, he was nevertheless an employee because he maintained the building in exchange for not having to pay rent. However, through careful questioning at plaintiff’s EBT, he admitted he lived at the property rent free for many years before he undertook any repair work on the building. He further admitted that the repair work began only after his wife moved in and after they decided their long-term plan was to purchase the house. Plaintiff testified that he did not receive any compensation, and he did not expect any compensation. The plaintiff admitted the defendant never requested that the work be performed and was not notified of the work. Plaintiff conceded he did not know what caused the ladder to fall, and that there was nothing wrong with the ladder. In the end, the Court dismissed the case holding plaintiff was a volunteer, and that defendant did not have any supervision or control over the work that caused the injury.

June 8, 2022

DSB prevailed on appeal in a labor law case against a religious organization. Plaintiff was allegedly injured when he fell from a ladder while painting the exterior of a detached garage that had been converted into a private meditation room. The Appellate Division, Second Department, unanimously modified the lower court’s denial of summary judgment on plaintiff’s Labor Law §§ 240(1) and 241(6) and substituted a provision granting those portions of DSB’s motion. The Appellate Division found that DSB established its prima facie entitlement to judgment as a matter of law.

May 26, 2022

DSB prevailed on appeal in a personal injury action against a homeowner, where plaintiff was injured by a third-party on the premises. The Appellate Division, First Department, unanimously upheld the lower court’s decision granting summary judgment to our client, the homeowner. The Appellate Division found that DSB established that the homeowner maintained the premises in a reasonably safe manner and neither knew nor should have known of the third-parties propensity to engage in violent behavior. Accordingly, plaintiff’s claims against the homeowner were dismissed.

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