On March 21, 2022, DSB obtained an Order from the United States Supreme Court denying certiori in the matter of Vanderveer v. ZBA of the Town of East Hampton. Mr. Vanderveer was the owner of a mostly vacant approximately 4 acre parcel of land that he claimed had historically been used for commercial outdoor storage, but his Town declined his request to recognized a legally pre-existing non-conforming (i.e. grandfathered) use. He challenged whether the informal procedures used by zoning boards throughout New York State, wherein the rules of evidence do not apply and cross-examination can be allowed by the board but is not automatically permitted as-of-right, comport with the Due Process Clause; whether by not recognizing grandfathered rights more easily the state and local governments violated the Takings Clause; and also argued that he had been treated differently than other property owners under similar circumstances, in violation of the Equal Protection Clause. DSB had successfully obtained dismissal of the complaint as a matter of law via a pre-answer motion to dismiss before the Eastern District of New York, which was then upheld by the Second Circuit Court of Appeals. Mr. Vanderveer sought to have the matter reviewed by the United States Supreme Court by arguing, among other things, that it raised important questions of federal law, offered an opportunity for the Court to clarify the impact of its recent Takings Clause cases, and identified a possible split between the Second Circuit (NY, CT, VT) and the Seventh Circuit (IL, IN, WI) regarding how specific a complaint must be before an Equal Protection Clause is allowed to proceed to discovery. The Justices conferenced the matter on March 18, 2022, and declined to hear the case.

On March 15, 2022: Partner David Pallai obtained a defense verdict in the Supreme Court, Suffolk County on behalf of an eastern Long Island town. Plaintiff alleged that the town “created” an unsafe condition on the sidewalk through snow removal operations and that the unsafe condition caused her to fall and sustain a serious injury to her elbow requiring multiple surgeries. While the town had been successful in establishing that it had not received prior written notice of the alleged defect, a trial was necessary to resolve an issue of fact as to whether the town had created the condition by mounding snow, which had allegedly thawed and then refrozen. The jury returned a verdict finding that the town had not affirmatively created the dangerous condition.

DSB won summary judgment on a Labor Law secs. 200, 240, and 241 action in the Supreme Court, Nassau County. Plaintiff fell approximately 16-18 feet from an extension ladder while painting the interior of our client’s home. The court granted the motion and dismissed Labor Law 240 and 241 claims based on the statutory homeowner’s exception. The Court also dismissed the Labor Law 200 claim because the accident arose from the means and methods of the work, and the defendants had no supervision or control over the plaintiff as he performed the work. Prior to dismissal, plaintiff’s demand was $1,000,000.

DSB successfully moved for summary judgment dismissing plaintiff’s Labor Law 240(1) and 241(6) claims prior to depositions. In this Supreme Court, Kings County action, plaintiff fell from a ladder while working on the exterior of our client’s home. DSB filed a motion to have the claims dismissed on the grounds of the statutory homeowner’s exception and that the client did not supervise or direct any of the injury producing work. The Court agreed with our position and granted summary judgment, dismissing the Labor Law 240(1) and 242(6) claims.

DSB won summary judgment on behalf of a Queens County homeowner with a life estate in residential real property. Plaintiff allegedly injured himself when he tripped and fell on a raised sidewalk condition. DSB demonstrated that the condition was actually located on a portion of the sidewalk abutting a neighboring property. Further, DSB met its burden of showing our client was exempt from liability under New York City Administrative Code sec. 7-210 because she retained a life estate in and occupied the two-family home situated on the property, which was used exclusively for residential purposes. Further, there was no special use of the sidewalk and she did not create the defective sidewalk condition.

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.

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.

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.

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.

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.