News from Devitt Spellman Barrett, LLP


March 22, 2023

DSB was successful in moving for summary judgment on behalf of a municipality on Long Island. Plaintiff was injured when the bicycle he was riding struck a divot, causing him to fall. The Supreme Court, Suffolk County, determined that DSB established its prima facie entitlement to judgment as a matter of law by demonstrating that the municipality had enacted a prior written notice statute regarding defects in the roadways, and that the municipality had not received the requisite prior written notice. The Court granted DSB’s motion for summary judgment and dismissed plaintiff’s complaint in its entirety.

February 17, 2023

DSB successfully moved for summary judgment on behalf of a commercial landlord in a personal injury action involving a slip and fall in a grocery store. Plaintiff had allegedly slipped on water in the produce aisle of a supermarket operated by the landlord’s tenant. DSB successfully argued the out-of-possession landlord had no duty to plaintiff, absent a statute or regulation, contract, course of conduct or creation of the condition. Following oral argument, the Supreme Court dismissed Plaintiff’s complaint and all cross claims.

February 8, 2023

DSB prevailed in the Appellate Division, Second Department on an appeal in a personal action alleging assault and battery. In the lower court, DSB moved to have plaintiff’s complaint dismissed as time-barred; in response, plaintiff opposed the motion and cross-moved to amend the complaint to add timely allegations for violations of New York City’s Victims of Gender-Motivated Violence Protection Law and Civil Rights Law § 79-n. The Supreme Court, Nassau County granted DSB’s motion to dismiss plaintiff’s Complaint and denied Plaintiff’s cross-motion to amend. On appeal, the Appellate Division, Second Department, affirmed the lower court’s order finding plaintiff’s proposed amendments to be palpably insufficient and patently devoid of merit.

January 18, 2023

An order was issued by the Appellate Division, Second Department, affirming the dismissal of a civil rights action alleging that a Long Island Town had violated the constitutional rights of a contract vendee who had agreed to purchase a property subject to obtaining necessary approvals from the Town for its proposed development. The Plaintiff argued that the Town had violated its due process rights by issuing a positive SEQRA declaration, thereby requiring a more detailed environmental analysis and extending the process for considering its applications beyond the contingency period for obtaining municipal approvals in its contract with the property’s owner, prompted it to cancel its contract to purchase the property and abandonment its applications for municipal approvals. The lower court dismissed their action for money damages under 42 U.S.C. § 1983, and the Appellate Division affirmed explaining that a local government’s discretionary decision to engaged in a more detailed environmental analysis as part of its process for considering a land use application is not a final decision that inflicts an actual concrete injury from which money damages can be sought in a civil rights claim.

January 13, 2023

DSB obtained an Order denying a motion to dismiss a civil rights claim – in one of the rare instances where DSB represented the Plaintiff – where a volunteer fire fighter argued that he was terminated without due process and in retaliation for exercising his First Amendment rights. The Court found that, at the pleading stage, a non-descript directive to appear at a meeting followed by a very short meeting informing the Plaintiff that he was being terminated for poor attendance stated a claim for a violation of the Due Process Clause, and the Plaintiff’s allegation that the attendance issue was mere pretext and he was actually terminated in response to having expressed a desire to run for an elected leadership position so as to prevent and discourage challenges to the current leadership’s control over a publicly-funded quasi-governmental organization sufficiently stated a claim for violation of the First Amendment.

December 20, 2022

DSB successfully obtained a consent order resolving an action for injunctive relief regarding local zoning, land use, and building code violations. The property in Mastic Beach had been used for, among other things, a gas station and auto repair shop since before the local zoning code was enacted, but the usage of the property had, at least in part, expanded and changed over time to the point that some of the usage was materially different than what had been grandfathered. When a resolution could not be obtained despite a series of appearance tickets and enforcement actions in the local District Court, DSB was retained to commence an action for injunctive relief in the New York State Supreme Court. Certain issues were resolved immediately, and the blighted conditions in the exterior of the premises were addressed, but the question of defining the precise scope of what was allowed to continue as a grandfathered use was referred to a hearing. Prior to the hearing, the Town and the property owner were able to reach a voluntary agreement and enter in to a consent order as to what uses were permissible and what aspects of the property needed to be brought up to code.

December 14, 2022

DSB obtained an Order allowing the Town of Southold to take title to a parcel of land near Love Lane to establish a park, over the property owner’s objection, via eminent domain. The property owner challenged the eminent domain proceeding, and brought a related federal action along with a national non-profit organization based out of Arlington, Virginia, seeking to change the law as to what constitutes “public use” under the takings clause of the Fifth Amendment.

December 12, 2022

DSB obtained summary judgment on behalf of a commercial property owner in New York City in a personal injury action involving alleged dangerous orange plastic netting on the property.  Through discovery and investigation, we were able to establish that work performed in the area by a non-party utility company required the company to comply with NYC Parks Department Tree Protection guidelines and that the utility had installed the plastic fencing and had responsibility for it.   The Court held that the defendant neither owned, controlled nor maintained the area of plaintiff’s accident and did not place the orange netting complained of by plaintiff.

November 16, 2022

DSB moved for summary judgment on a case involving New York Labor Law claims where plaintiff fell from an A-frame ladder which was placed by Plaintiff against a house to do framing.  DSB, representing the owner of the home, filed a motion for summary judgment arguing, among other things, that the set up of the ladder in the closed position was the sole proximate cause of the accident. After DSB filed the motion, plaintiff’s counsel agreed to discontinue the action with prejudice.

September 14, 2022

DSB was successful in moving for summary judgment on behalf of a residential tenant in a personal injury action. Plaintiff, a visitor to the property, allegedly fell on the front walkway, which she asserted was covered with leaves and/or acorns. DSB moved for summary judgment because the evidence presented by Plaintiff did not definitively establish the cause of her fall. The Court agreed. Further, the Court noted that even if the plaintiff’s testimony did establish leaves and/or acorns as the cause of the fall, such materials were both open and obvious conditions that were not inherently dangerous.

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