News from Devitt Spellman Barrett, LLP


February 1, 2022

On February 1, 2022, DSB obtained the voluntarily dismissal of a claim against a property owner by an individual who claimed to have rented the premises from and/or been defrauded by an individual who was a minority non-controlling member of the LLC that owned the property.  DSB moved to dismiss, arguing that on the face of the complaint the controlling member of the LLC had no involvement and the other individual had neither actual nor apparent authority to bind the entity.  DSB also sought sanctions for improperly filing a lis pendens.  Rather than oppose the motion, Plaintiff agreed to voluntarily withdraw the action.

January 27, 2022

On January 27, 2022, DSB obtained an Order from a federal Magistrate Judge denying a request for further discovery, with a recommendation that the matter be dismissed in its entirety.  The case, which has been pending since 2013, sought to have a town’s rental permit requirement and various provisions of the Town Code related to property maintenance declared void.  All of the claims but two had previously been disposed of.  As to those two claims, the Court found that one had been abandoned due to the Plaintiff’s failure to respond to DSB’s arguments in favor of dismissal, and the other claim was untimely.  Plaintiff will have an opportunity to object to the recommendation before it is considered by the District Judge.

January 27, 2022

On January 27, 2022, DSB obtained an Order from the United States District Court for the Eastern District of New York awarding summary judgment dismissing a civil rights claim by a special needs student alleging that a school district had discriminated against him by, among other things, not enrolling him until directed to do so amid a dispute between the student’s parents and his elementary school over what middle school he would attend and the nature of the special education services that would be offered.  The Court previously allowed the matter to proceed to discovery but, upon further motion practice after discovery was completed, found that the undisputed evidence was such that the case should be dismissed as a matter of law.  Plaintiff has appealed.

January 26, 2022

On January 26, 2022, DSB obtained an Order from the Appellate Division, Second Department, upholding —  after over a decade of litigation —  the ability of a Town on the east end of Long Island to regulate certain types of fishing in Town waters.  The suit, brought by a non-profit organization, argued that non-residents cannot be excluded from fishing in navigable waters because they are subject to state and federal, not local, jurisdiction.  However, due to a historical exceptions going back to the colonial era, Towns on Long Island have retained greater control over their waters than municipalities in other parts of the State.  The Court also confirmed that the Town has the ability to incorporate the rules and regulations of its Trustees (a vestige of the Town’s colonial-era government that has continued as a quasi-governmental land trust) as part of its Town Code.

January 18, 2022

DSB was successful in moving for summary judgment on behalf of a Long Island business. Plaintiff was allegedly inured when she tripped and fell on a public sidewalk. The Supreme Court, Queens County, determined that the business did not owe a duty of care to the plaintiff because the business neither owned, occupied nor maintained the accident location. Furthermore, the business did not create the condition. The Court further concluded that the business affirmatively established its entitlement to judgment as a matter of law and dismissed the complaint against the business.

January 18, 2022

DSB was successful in moving to dismiss a plaintiff’s complaint for the plaintiff’s failure to appoint an estate representative in the deceased plaintiff’s stead. The decedent passed away in late 2018; thereafter, the matter was stayed pending a substitution. Plaintiff failed to appoint an estate representative. Accordingly, DSB’s motion was granted in its entirety.

December 10, 2021

DSB secured a pre-deposition voluntary discontinuance from the attorney of an injured party in a personal injury action early in the litigation.  Plaintiff alleged that she tripped due to a broken/defective city sidewalk abutting DSB’s client’s premises. DSB was able to demonstrate that, even if the condition was located on the sidewalk abutting our clients’ residential property, the clients could not be liable as a matter of law.  Plaintiff’s counsel agreed and voluntary withdrew their case.  DSB’s strategy significantly reduced defense costs and eliminated potential exposure for the client.

December 3, 2021

DSB was successful in obtaining dismissal of all claims against a Long Island municipality in a lawsuit filed by one of its employees arising out of a motor vehicle accident.  Plaintiff sustained life-altering injuries when his vehicle crashed into a chain-link fence and the metal pole attached to it impaled his face and severed his jaw, among other injuries.  The municipality owned and maintained the fence.  At the outset of the litigation, before any fact or expert discovery had been conducted, DSB affirmatively established to the plaintiff and co-defendants – through the interplay of various complex statutes and case law — that the municipality did not bear liability for the accident or the employee’s injuries.  As such, the claims and cross-claims were dismissed with prejudice against the municipality, thereby successfully avoiding the municipality from engaging in motion practice and a protracted litigation.

November 30, 2021

DSB was successful in moving to dismiss a complaint made by a former East End Village employee alleging that the that the Village discriminated against him because of a disability and on the basis of sex.  The plaintiff had previously commenced an action against the Village in federal court alleging disability discrimination, which was dismissed.  The plaintiff commended a second action in Supreme Court, Suffolk County, based upon the same series of actions that were the subject of the amended complaint in the dismissed federal action.  The second action was dismissed for failure to state a claim upon which relief could be granted.  Then the plaintiff commenced this third action alleging additional facts of discrimination on the basis of sex.   The Supreme Court, Suffolk County, dismissed the third action holding that the court’s dismissal of the second action had preclusive effect in the third action because the plaintiff did not allege additional facts to remedy the deficiencies in his prior complaint.

November 4, 2021

DSB prevailed on another appeal before the Appellate Division, First Department.  The case was a trip and fall action where the plaintiff allegedly tripped over an asphalt patch abutting DSB’s client’s commercial storefront.  The premises owner asserted cross-claims against the commercial tenant.  The Appellate Division, First Department reversed the lower court and unanimously agreed that DSB’s client, the commercial tenant, was entitled to dismissal of the case and judgment as a matter of law.  The tenant did not perform the patchwork and was not responsible for structural repairs to the abutting sidewalk.  Accordingly, the Complaint and all cross-claims should have been dismissed against the tenant by the lower court.

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