Smith/Hodge Relationship Ends With Dispute of $50,000 Claim

Appeals Court Reviews Conflicting  Versions of Facts

Keisha Smith sued to recover $50,000 from Holly Dodge. The evidence adduced at a nonjury trial showed that the parties were in a relationship for a year and at half, had lived together, and were once engaged. In January 2021, Smith provided Hodge with $50,000 for a laundromat which Hodge claimed she was planning to open. Nothing was ever put into writing regarding the venture, and Hodge testified that the venture subsequently “fell through.” And Hodge also testified that Smith was not entitled to the return of $50,000 since Hodge had used the money to renovate Smith’s house, which included a pool, and numerous repairs and upgrades to the house, had purchased furniture and appliances for the house, and had purchased other miscellaneous items on Smith’s behalf. Hodge provided credit card and bank statements and receipts in support of her claims. Smith testified that furniture was purchased for her house and that she gave Hodge cash to use for household needs which included the renovation of her house.

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Insurance Coverage Disclaimed For Smithtown Property Damaged By Fire

Court Adjudicates Claims Against Insurance Company and Broker

James I. Ewart contacted  Larry Darcey, who was an independent agent for the Allstate Insurance Company. for the purpose of purchasing a landlord insurance policy to cover a property in Smithtown. Darcey subsequently provided quotes for landlord insurance to Ewart and then left for vacation without binding coverage in place.  Ewart did not select a policy and made no payment. Although Ewart knew that further actions were required to secure coverage, he believed that Darcey would complete them after he returned from vacation. But before Darcey returned, a fire damaged the property. Ewart tendered a claim to Allstate, which disclaimed coverage on the basis that no policy was in force on the date of the loss.

Ewart sued Allstate and Darcey to recover damages for breach of contract and negligence in failing to procure a landlord insurance policy for the property. Allstate and Darcey moved for summary judgment dismissing the complaint. Supreme Court granted the motion. Ewart appealed.

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Property Owner Fences Around Shed on Neighbor’s Land

Had Title to Enclosed Realty Been Acquired by Adverse Possession?.

Hongwei Guan and EZC Carolina LLC owned their two residences on adjoining parcels in the City of Ithaca, Tompkins County. In 2006, Guan became the titled owners of the western parcel and began using a shed that was fully located to the east of their boundary line. In 2021, EZC  became the titled owner of the eastern parcel and subsequently constructed a fence along the boundary line — resultantly enclosing the shed within EZC’s parcel.

Guan commenced an action seeking, among other things, to permanently enjoin EZC from maintaining the fence that prevented access to the shed, claiming to be the fee owner of the disputed area through adverse possession. After issue was joined and before the completion of discovery, Guan moved for partial summary judgment on the cause of action for a permanent injunction, which was opposed by EZC.  Supreme Court denied the motion in its entirety. Guan appealed.

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Property Owner Sued to Recover $450 Cost of Snowplowing Shared Private Driveway

Appeals Followed Small Claims Judgment In Favor of Neighbors

Silvio Bet commenced a small claims action seeking $112.50 each from Wayne Geriak Elizabeth Manning as their pro rata shares of a $450 plowing expense for a shared private roadway. After a trial, the Justice Court of the Town of Lake Pleasant found in favor of  Geriak and Manning because there was no prior agreement between the parties to share plowing costs for the driveway. Bet appealed. County Court affirmed.  Bet appealed to the Appellate Division..

Appellate review of small claims matters is limited to determining whether ‘substantial justice has been done between the parties according to the rules and principles of substantive law. Only a clearly erroneous determination will be overturned.

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Attorney Loses Contact With Client Who May (Not) Be Deceased

May Court Entertain Application to Withdraw As Counsel?

Chernyy Law Office, P.C.  submitted a proposed order to show cause to bring on a motion for leave to withdraw as attorney for plaintiff, Rose Edwards. The affirmation in support of Borislav Chernyy, Esq., alleged that the underlying action was for money damages to compensate Edwards and others for injuries sustained in a motor vehicle accident on February 23, 2018. He alleged further:

6. The last time your affiant had contact with the Plaintiff, ROSE EDWARDS, was by telephone on July 19, 2021. Since July 2021, your affiant underwent multiple attempts to contact the Plaintiff, ROSE EDWARDS, but your affiant’s office has not been able to reach the Plaintiff. Upon information and belief your affiant was informed that Plaintiff, ROSE EDWARDS, passed away. Your affiant does not have any knowledge regarding Plaintiff’s, ROSE EDWARDS, date of death and place of death because said information was obtained from his friends. Your affiant’s investigator conducted an investigation in order to obtain Plaintiff’s, ROSE EDWARDS, death certificate or Plaintiff’s, ROSE EDWARDS, location of death but he has not been able to locate a death certificate and the location of death for Plaintiff, ROSE EDWARDS, or verify that in fact Plaintiff, ROSE EDWARDS, passed away.

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In 2020 Residential Coop Unit Owners Challenge 2013/17 Sublet Rule Changes

Were Breach of Contract & BCL Claims Barred by Statute of Limitations?

Alison Fricke and others  were shareholders in Beauchamp Gardens Owners Corp., a cooperative corporation, and the owners of separate apartments in the cooperative complex. On February 17, 2020, they commenced an action alleging that BGOC  breached its contract with them and violated Business Corporation Law § 720 by enacting certain sublet policies which limited the number of years shareholders could sublet their apartments and imposed an annual sublet fee. The challenged policies became effective on January 1, 2013, and January 1, 2017.

BGOC subsequently moved to dismiss the causes of action alleging breach of contract and violation of Business Corporation Law § 720 as time-barred. Supreme Court granted those branches of the motion. Fricke and the others appealed

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Heirs Sought Pre-Action Discovery From Gallery of Identity of Purchaser of Painting by Tiepolo

Court Determines If Claimants Were Entitled to Such Extraordinary Relief

Mordechai Avni, Oded Avni and Michaela Iro demanded that Sotheby’s return a painting by Giovanni Battista Tiepolo. They claimed they were all lawful heirs of Dr. Otto and Lili Fröhlich, who owned the painting prior to World War II. The Avnis asserted that the Nazis stole the painting and they filed a petition  for pre-action discovery of the individual who acquired the painting from Sotheby’s after an auction. The Avnis contended that Sotheby’s was the last known possessor of the painting and that it was put up for sale at public auction in New York on May 22, 2019.  

The Avnis detailed that the Fröhlichs resided in Austria and ran an art gallery there before they were forced to flee in 1938 and left for London. They explained that, during the late 1930s, the Nazis forbade Jews from engaging in any business activities and forced them to sell assets, often at below-market prices for the benefit of non-Jewish sellers and buyers, as well as the Nazi government. In many of those deals, the Jewish owner received nothing.

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Townhouse Sues Neighbor/Tenant After Shared Sewage Line Backup

Courts Addresses Claims For Compensatory and Punitive Damages

SJWA LLC asserted claims for trespass and private nuisance based on repeated backups of sewage in the basement of their townhouse. The property next to the townhouse is owned by Father RealtCorp., which leased the top two floors of its property to Chelsea 7 Corporation. According to the complaint, the backups  resulted from  Realty and Chelsa’s misuse of a shared sewage line running from their property under SJWA’s property and then to the main line in the street. Motion practice and an appeal ensued.

SJWA made a prima facie showing of trespass by submitting evidence that there was an intentional and unauthorized entry upon their property and that they did not take the premises subject to any license. In opposition to SJWA’s trespass claim,  Realty and Chelsa contended that they had a license to use the pipe based on an agreement entered into in 2006 between Realty and the prior owner of SJWA’s property after the pipe serving both properties was severed during construction on an abutting property. According to Realty, the prior owners agreed to share the cost of re-laying a combined sewage pipe, which was inspected and approved by New York City agencies, and Realty continued to use the pipe without incident until the backups that occurred.

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Long Beach Cyclist Injured After Swerving to Avoid Beachgoers

Was City Liable For Failure to Demarcate Boardwalk Bike Lane?   

Linda Kuchmeister, sought damages for injuries she sustained while attempting to avoid pedestrians who entered her bicycle lane as she was riding on the boardwalk in Long Beach, New York. Kuchmeister struck a movable sign located in the middle of the boardwalk and fell, breaking her shoulder, after she was forced to swerve to avoid crashing into the pedestrians. The City moved for summary judgment dismissing Kuchmeister’s complaint.

The boardwalk bicycle “lane” was not physically segregated from the throngs of beachgoers and visitors utilizing the boardwalk and was not demarcated by painted lines. The City of Long Beach conceded that it received “a great deal of complaints,” including in writing, that the bike “lane” constituted a dangerous condition for those on the boardwalk. Notwithstanding that the known dangerous condition allegedly had resulted in injury, the City sought summary judgment dismissing the complaint.

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Bar Patron Stands on Couch, Sings and Falls Thru Window

Were Operator/Owner Liable for Injury to Karaoke Diva?

Julia Kitziger was singing and moving her body while standing on a couch or banquet at Planet Rose’s karaoke bar when the couch moved forward. She then fell backwards, falling through the floor-to-ceiling glass in the storefront window. Litigation ensued against the bar and the owner of the building. Planet Rose and the property owner moved for summary judgment dismissing Kitziger’s complaint. Supreme Court denied the motion. Planet Rose appealed.

The appellate court found that Planet Rose failed to eliminate material issues of fact as to whether the bar had notice of the window’s dangerous condition, and whether the premises was maintained in a reasonably safe condition.  Planet Rose demonstrated that the window, which did not have tempered or safety glass, complied with applicable building code provisions when it was installed. But, even if the premises complied with applicable building code provisions, a landowner had a common-law duty to maintain the premises in reasonably safe condition in view of all the circumstances. Here, the owner of Planet Rose acknowledged that when vandals smashed another window in the storefront years earlier, the glazier recommended tempered glass as the best option for a storefront, and she accepted that recommendation. She also testified that there were many times over the years that patrons stood on the couch, as shown in photographs posted on Planet Rose’s social media. Thus, the record presented issues of fact as to whether Planet Rose was negligent in failing to use tempered glass in the window to prevent a foreseeable injury.

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