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.

DSB was successful in appealing a judgment against a Long Island municipality.   In a wrongful death action, DSB argued that the lower court erred by admitting internal rules and regulations into evidence without providing a limiting instruction to the jury.  The Appellate Division, Second Department, agreed that it was reversible error to admit the evidence without charging the jury that the rules and regulations could only be considered as some evidence of recklessness along with other factors.

DSB was successful in moving for summary judgment on behalf of a Long Island school district in a lawsuit arising from a school altercation.  Plaintiff, as guardian of a student, commenced a personal injury action for injuries sustained during a fight with another student which occurred on school grounds.  The Supreme Court, Suffolk County found that DSB affirmatively established that the school did not have sufficient notice of any prior incidents between the combatants such that the altercation could have been anticipated.  Furthermore, the incident occurred suddenly and therefore no reasonable level of supervision could have prevented it. DSB’s motion for summary judgment was granted in its entirety.

DSB was successful in moving to dismiss a personal injury action brought by an injured motorist against a Long Island school district and its employee who was driving a district vehicle in the course of his employment.  Plaintiff failed to file a Notice of Claim with the school district regarding the claims and after the expiration of the statute of limitations, DSB moved to dismiss on that basis.   The Supreme Court, Suffolk County agreed with DSB that the action had to be dismissed in its entirety.

DSB was successful in moving to dismiss a landowner’s federal complaint alleging that an East End Village violated the landowner’s Fourth Amendment right against illegal search and seizure, Fifth Amendment right against the taking of property, Eight Amendment right against excessive fines, Fourteenth Amendment right of equal protection under the law and common law right against trespass.  The District Court for the Eastern District of New York dismissed the constitutional and common law claims against the Village finding that the landowner failed to state a claim upon which relief may be granted.

DSB obtained an Order awarding summary judgment in favor of an East End Town confirming its continued ownership of a disputed parcel of land.  Plaintiff filed the action in 2010, claiming that he had acquired a neighboring municipal lot through adverse possession based upon blocking a beach access road with shrubbery and using it as a private driveway for a number of years, arguing that the Town had abandoned or never properly opened the unnamed beach access road that had been at the location since at least 1940.  The Court previously declined to dismiss the action in 2017, finding that more discovery was needed, but after further proceedings and motion practice has now dismissed the case, explaining that while roadway easements on otherwise private property can be abandoned, it is well-established that government-owned land that is held for a public purpose cannot be adversely possessed.

DSB prevailed on appeal in a New York State Labor Law construction accident case.  Plaintiff in the action alleged that he was injured falling from a ladder while installing cable services for a tenant.  The Appellate Division for the Second Department unanimously agreed that DSB established its prima facie entitlement to judgment by establishing that the requisite nexus between the defendant and the plaintiff’s work did not exist.  The Appellate Division affirmed the lower court’s order granting  summary judgment dismissing plaintiff’s New York State Labor Law claims.

DSB successfully obtained a favorable decision from the Second Circuit Court of Appeals, affirming dismissal of a claim that a land owner’s constitutional rights were violated by a Town declining to recognize an alleged pre-existing non-conforming use.  The plaintiff, whose family owned several acres of mostly vacant land prior to the adoption of zoning, argued that the property had always been used to store materials and equipment related to his family’s local businesses, and thus had a grandfathered commercial storage use, and renting the property to another local business for the storage of its materials and equipment was merely a continuation of that use.  The Town’s Zoning Board of Appeals disagreed that evidence submitted by the Plaintiff showed a pre-existing non-conforming outdoor storage business, rather than merely incidental storage of the owner’s personal property, and – regardless – found that renting the property to a third party would not be a continuation of that pre-existing use if it had been found.  Plaintiff sued in federal court, arguing among other things that not recognizing a grandfathered commercial use and requiring compliance with residential zoning under these circumstances violated the Takings and Due Process Clauses, but DSB obtained a judgment dismissing the action as a matter of law, which has now been affirmed on appeal.  The decision can be found here: https://www.ca2.uscourts.gov/decisions/isysquery/37d680d4-7bd2-48aa-bf17-107027fd31c2/2/doc/20-4252_so.pdf.

DSB was successful in moving for summary judgment on behalf of a municipality on Long Island.  Plaintiff tripped and fell on a walkway located within a transfer station and sustained injuries as a result of her 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 on sidewalks.  DSB demonstrated that a walkway was the functional equivalent of a sidewalk; therefore, the walkway was encompassed under the prior written notice statute.  Further, the Court found 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.

Partner Justin Rowe obtained a defense verdict in a jury trial in Queens County in a personal injury case.  In the action, Plaintiff, a home health aide for the firm’s client’s mother, claims she slipped and fell on liquid in the dining room of the client’s home.   As a result of the fall, plaintiff sustained a fractured patella, internal derangement of the knee requiring surgery, a tear in the shoulder and multiple herniations in the spine that required a series of epidural injections.  Plaintiff also claimed lost wages and the inability to return to work.  The Queens County jury returned a liability verdict in favor of the defendant finding that Plaintiff did not prove there was liquid on the floor where plaintiff fell.