William and Teresa Fight in Court for Custody of Doberman Pinscher “King”

Posted on September 16, 2024 | Comments Off on William and Teresa Fight in Court for Custody of Doberman Pinscher “King”

Court Decides in Whose Custody the Pet’s Best Interests Would Be Served  

Pursuant to DRL §236(B)(5)(15), in awarding possession of a companion animal in a divorce action the court should consider the best interest of the animal. On April 18, 2023 a hearing was held to determine custody of the parties’ dog,  King. Custody was sought by both William Conte and Teresa Conte.

The parties to the divorce action had been living apart since July 17, 2022 when William was directed to vacate the marital residence pursuant to an order of protection in favor of Teresa. At that time, the parties had two dogs: King and Ruby, a miniature Pinscher.

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Posted in Animals, Litigation, New York Law

Assignee of Residential Real Property Mortgage Filed Suit to Foreclose

Posted on September 12, 2024 | Comments Off on Assignee of Residential Real Property Mortgage Filed Suit to Foreclose

Was Suit Barred By Passage of Time After Assignor’s Acceleration Notice?

In January 2007, Stanley Caldwell and Sheila Caldwell executed a note in the amount of $210,000, in favor of JPMorgan Chase Bank, N.A. The note was secured by a mortgage on residential property located in Mastic Beach. In June 2011, JPMorgan commenced an action to foreclose the mortgage. In the complaint, JPMorgan elected to call due the entire amount secured by the mortgage. In July 2015, the 2011 action was voluntarily discontinued.

In October 2017, U.S. Bank National Association, as assignee of JP Morgan, commenced an action to foreclose the same mortgage. The Caldwells interposed an answer asserting several affirmative defenses, including expiration of the statute of limitations. Thereafter, the Bank moved for summary judgment on the complaint against the Caldwells.  The Caldwells opposed the motion and asked the court to search the record and award them summary judgment dismissing the complaint. Supreme Court denied the motion and, in effect, denied the Caldwells’ request to search the record and award them summary judgment. Both the Bank and the Caldwells appealed..

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Posted in Mortgages, New York Law, Real Estate

CPLR 3213 Motion For Summary Judgment In Lieu Of Complaint

Posted on September 9, 2024 | Comments Off on CPLR 3213 Motion For Summary Judgment In Lieu Of Complaint

Was Guarantee An Instrument For the Payment of Money?

Kitchen Winners NY, Inc. sought summary judgment in lieu of complaint pursuant to CPLR 3213 against David Triptow and TT Red Solutions. LLC. In support of the motion, a representative of KWNY averred that Triptow and  TT Red had executed a guaranty, pursuant to which they promised to repay a $450,000 deposit paid by KWNY pursuant to a purchase agreement KWNY entered into with nonparties Humpf (Chengdu) Industrial Co. Ltd. and Legend Sport Limited—HK, in the event that the goods that were the subject of the purchase agreement, namely, disposable medical gloves, were not delivered.

KWNY’s representative further averred that the gloves were not delivered by the date set forth in the purchase agreement for such delivery, triggering Triptow’s obligation under the guaranty to repay the deposit, and Triptow had remitted only $50,000 of the $450,000 owed.

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Posted in Contracts, Litigation, New York Law

Dog Bite Victim Sues Canines Owner

Posted on September 5, 2024 | Comments Off on Dog Bite Victim Sues Canines Owner

Both Parties Moved for Summary Judgment

Kathleen Piedimonte commenced an action against Inez A. Alvarenga-Benitez to recover damages for personal injuries she allegedly sustained as a result of an encounter with Benitz’ dog. Piedimonte testified at her deposition that the dog bit the back of her leg and jumped on her, causing her to fall and break her leg.

Piedimonte moved for summary judgment on the issue of liability and Benitez cross-moved for summary judgment dismissing the complaint, contending that his dog did not have vicious propensities and that, in any event, he neither knew, nor should have known, that the dog had any such propensities. Supreme Court denied Piedimonte’s motion and granted Benitez’ cross-motion. Piedimonte appealed.

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Posted in Animals, New York Law

Spectator Hurt During T-Shirt Launch At Citi Field

Posted on September 2, 2024 | Comments Off on Spectator Hurt During T-Shirt Launch At Citi Field

Were Mets Liable to Seriously Injured Fan?

Alexander Swanson was severely injured in an incident that occurred while he was in the stands as a spectator at a New York Mets baseball game at Citi Field ballpark in Queens New York operated by several entities (for convenience, the “Mets”).

Swanson sued the Mets. After discovery was completed, the Mets moved for summary judgment dismissing the complaint. In support of the motion, the Mets submitted Swanson’s deposition transcript, two affidavits from directors at Citi Field, and an affidavit from Dr. David L. Gushue, Ph.D., a biomechanical engineer who investigated the facts surrounding Swanson’s accident.

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Posted in Litigation, Personal Injury

Tractor-Trailer Hits Disabled Car Parked at Side of Road

Posted on August 29, 2024 | Comments Off on Tractor-Trailer Hits Disabled Car Parked at Side of Road

Did Emergency Doctrine Excuse Driver From Liability for Injuries?

Alwin Martinez was injured in an incident when his vehicle became disabled on the highway and Yesenia Camacho drove to the scene to help him. Camacho testified that although she first parked behind Martinez on the shoulder, she eventually moved her vehicle so that it extended partially into the right-hand lane of the highway so that she could help jump start Martinez’s vehicle. While they were waiting for the vehicle to charge, a tractor-trailer leased by J.B. Hunt Transport, Inc. crashed into the back of Camacho’s vehicle, injuring both Martinez and Camacho. Litigation ensued..

Martinez and Camacho’s motion for summary judgment against Transport as to liability was granted. And Transport’s affirmative defense of comparative negligence was dismissed. Transport appealed.   

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Posted in Personal Injury

Breaking Up Is Hard To Do- When A Residential Lease is Involved

Posted on August 26, 2024 | Comments Off on Breaking Up Is Hard To Do- When A Residential Lease is Involved

Court Adjudicates Claim of Tenant and Counterclaim of Landlord

Emily Pickens filed a small claims action in  Civil Court against Terry Lane seeking return of a security deposit in the amount of $2,825 on a market-rate, residential apartment that she leased after vacating the premises about a year before the expiration of her two-year lease.

Lane asserted a counterclaim against Pickens for the rent due between the time when she vacated the apartment and when he was able to re-rent the apartment, plus the expenses incurred to re-rent the apartment.

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Posted in Landlord-Tenant, Litigation, New York Law, Real Estate

Purchaser of Great Neck Unit Fails to Close on Two TOE Dates

Posted on August 22, 2024 | Comments Off on Purchaser of Great Neck Unit Fails to Close on Two TOE Dates

Court Adjudicates Seller’s Claim for Liquidated Damages

P.W. Developers commenced a declaratory judgment action  against R.C. arising out of a purchase agreement and a rider  pursuant to which the R.C. agreed to purchase from P.W.D. residential unit 000 and garage unit 0 located at 88 Cuttermill Road, in Great, Neck New York for a total purchase price of $545,000.00, with a down payment of $54,500.00 deposited with the parties’ escrow agent, leaving a balance of $490.500 due to be paid at the closing.  P.W.D moved for summary judgment granting the relief sought in the complaint.

The purchase agreement provided that in the event of R.C.’s default for failing to close P.W.D shall “retain the Downpayment [sic] as liquidated damages”. And the rider to the purchase agreement also provided that if R.C. defaulted under the purchase agreement, the “[PWD]shall retain the Downpayment [sic] as liquidated damages”.

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Posted in Condominiums, Real Estate

Was Manhattanville College Liable or Did Player Assume Risk?

Posted on August 19, 2024 | Comments Off on Was Manhattanville College Liable or Did Player Assume Risk?

Richard G. Mazze, a member of the varsity soccer team at Manhattanville College, allegedly sustained an injury to his back as he was performing a squat exercise during a weight training session. Mazze sued Manhattanville College, Manhattanville College Athletic Department and Manhattanville College Men’s Varsity Soccer.      

Manhatanville moved for summary judgment dismissing the complaint on the gound that the action was barred by the doctrine of assumption of risk. Supreme Court denied the motion. And Manhattanville appealed.

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Posted in New York Law, Personal Injury, Personal Injury

Insured’s Home Was Damaged By Fire

Posted on August 15, 2024 | Comments Off on Insured’s Home Was Damaged By Fire

Were Broker/Carrier Liable for Underinsurance?

Kim Clark’s home was damaged by a fire.  Clark failed to advise her insurance agent or broker about an addition to her home which increased its square footage by approximately fifty percent. As a result of the fire, Clark claimed losses to her home and personal property far exceeded her insurance coverage limits which did not account for the unknown increased square footage of the renovated home.

Clark filed suit seeking damages against Urbanski Insurance Agency, Inc.  alleging it negligently procured insufficient insurance coverage for the home and against Preferred Mutual Insurance Company claiming it was vicariously liable for Urbanski’s alleged negligence.

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Posted in Litigation, New York Law, Real Estate