In-Ground Swimming Pool Collapsed Causing Collateral Damage:

This was originally published on the SGR Blog.

Was Loss Covered by Insurance Policy or Barred by Exclusion?

Homeowners’ insurance policies cover generic enumerated risks, on the one hand, but also expressly exclude certain coverages, on the other. As a recent case illustrates, a Court may be required to determine whether a particular loss is covered or excluded.

Evan and Jennifer Klein owned a home in Suffolk County insured under a homeowner’s insurance policy issued by State Farm Insurance Company. During the coverage period, the Klein’s in-ground swimming pool collapsed, causing damage to the pool walls, brick border, and patio area surrounding the pool. They submitted a claim for coverage under the policy.

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Collector Sues for Replevin of 18th Century Gold Plate Stolen in 1962:

This was originally posted on the SGR Blog.

Was Claim Barred by the Three Year Statute of Limitations?

Ambassador J. Willim Middendorf, a leading collector of early American imprints and documents, sued the American Numismatic Society, a not-for-profit  institution, for declaration of title and replevin, alleging that an engraved plate for an eighteenth-century 42-shilling note that was acquired by the Society in 1965 as part of its permanent collection was property that he acquired in 1959 and owned until 1962, when it was stolen from his car.

On August 11, 2014, Middendorf wrote to the Society that:

Some time ago I was in touch with your director about the Revere Currency Plate that was stolen from my car a number of years ago and I was told to get back to you having more information… The plate was stolen from my [car] after I gave a lecture on it at the New York Historical Society and shortly thereafter it was purchased by one of your curators I understand. It was only fairly recently that I discovered this in one of your publications that you were in possession of the plate. This letter is a request to have the plate returned to my collection.

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Treadmill-er Trips on Adjacent Electrical Box:

This was originally posted on the SGR Blog.

Were Gym Operators Liable for Injury?

Yael Sebagh sued Capital Fitness, Inc. and alleged that she was injured when she attempted to disembark from a treadmill at a fitness center. As she stepped off the treadmill, Sebagh allegedly tripped or stepped on an electrical box that was located on the floor next to the treadmill, which caused her to fall and sustain personal injuries. The building was owned by Simon Property Group, L.P., and leased by Capital Fitness, Inc., and Capital Fitness-Roosevelt, LLC.

Capital interposed an answer which included the third affirmative defense of the primary assumption of risk doctrine, the fourth affirmative defense that the allegedly dangerous condition was open and obvious, and the sixth affirmative defense that Sebagh was comparatively negligent.

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Slippery Bowling Alley Brouhaha in Clifton Park

This was originally posted on the SGR Blog.

Was Owner Liable for Injury Near Ball Return?

Every case that arises from a recreation/sports-related injury must address several threshold questions. First, was the premises maintained in a reasonably safe condition? Second, did the owner have actual or constructive notice of an unsafe condition? Lastly, did the unsafe condition cause or contribute to the injury? A recent case, involving a hand injury at a bowling alley, addressed all 3 questions.

Jaime Muscato sued Spare Time Entertainment alleging a slip-and-fall at a bowling alley located on Route 9 in Clifton Park, New York. And claimed negligence in maintaining the premises, in that the floor near the ball return was excessively slippery, causing her to fall and sustain injury to her hand. Spare Time moved for summary judgment.

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Worker Hurt Doing Jobs Requested by Tenant:

This was originally posted on the SGR Blog.

Was Absentee Owner Liable For The Injury?

A residential tenant signs a lease with an owner who holds the title for investment purposes. The tenant engages a handyman to prune a tree on the property. The worker is injured and sues the out-of-possession landlord. Did the handyman assert a legally cognizable claim?

The accident took place on March 24, 2018 in the backyard of 340 Halsey Street in Brooklyn, New York. The two-family house was owned by Advance Financial Realty Corp. for investment purposes. The duplex on the first and second floors, with exclusive use of the backyard, were rented to a residential tenant and his wife, James and Kimberly Nester. Kimberly Nester asked Wilson Loja to come to her home to prune a tree in the backyard. James Nester testified that Loja agreed to do the work without payment, and that he did not obtain permission for the work from Advance, nor did he inform Advance about having the work done.

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Was Foreclosure Defendant Properly “Served” With Process on Daughter-in-Law?

This was originally published on the SGR Blog.

Court Determines If Misinformation Sufficed to Establish Usual Place of Abode

An intermediate appellate court was recently presented with a simple question that had not previously arisen: whether an affirmative misrepresentation by a relative of a defendant at a residential address that the address was proper, which was relied upon by a process server, may establish that service was valid–even if evidence established that the address was not, in fact, the defendant’s actual dwelling place or usual place of abode? Or, under the circumstances, was service of process upon the defendant at an address that was not actually his dwelling place or usual place of abode defective, notwithstanding information provided to the process server at the doorstep?

A mortgage foreclosure action arose out of an alleged default on a note executed in November 2004 by James A. Kelly and his father-in-law, Edward J. Bressler, in favor of Everbank. As security for the note, they executed a mortgage encumbering certain real property in Mastic Beach. The mortgage documents included an occupancy rider in which Bressler expressed his intention to primarily reside at the mortgaged premises within 60 days.

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Car Hits Pedestrian at 82nd and Fifth:

This was originally published on the SGR Blog.

Was “Emergency Doctrine” Implicated?

It takes two to make a car/pedestrian accident. Was the driver excused from liability under the emergency doctrine?

Aguilera De Diaz asserted that she was crossing the street, within the crosswalk, with the light in her favor, when she was struck by Richard D. Klausner’s vehicle, which was making a left turn. But Klausner countered that De Diaz, in fact, was not crossing the crosswalk from the northeast side of the street, but rather, out of nowhere, appeared to be coming from the west side of the street, causing impact to the left driver side of his vehicle as he was making a left turn.

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Was Foreclosure Defendant Properly “Served” With Process on Daughter-in-Law?

This was originally published on the SGR Blog.

Court Determines If Misinformation Sufficed to Establish Usual Place of Abode

An intermediate appellate court was recently presented with a simple question that had not previously arisen: whether an affirmative misrepresentation by a relative of a defendant at a residential address that the address was proper, which was relied upon by a process server, may establish that service was valid–even if evidence established that the address was not, in fact, the defendant’s actual dwelling place or usual place of abode? Or, under the circumstances, was service of process upon the defendant at an address that was not actually his dwelling place or usual place of abode defective, notwithstanding information provided to the process server at the doorstep?

A mortgage foreclosure action arose out of an alleged default on a note executed in November 2004 by James A. Kelly and his father-in-law, Edward J. Bressler, in favor of Everbank. As security for the note, they executed a mortgage encumbering certain real property in Mastic Beach. The mortgage documents included an occupancy rider in which Bressler expressed his intention to primarily reside at the mortgaged premises within 60 days.

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Homeowner Sues Neighbor for Construction Related Water Runoff Damages:

This was originally published on the SGR Blog.

Court Decides If Neighbor Negligently Caused Actionable Nuisance

Richard W. Tortorici sued his neighbor, William Massaroni, in the Small Claims Part, for $1,142.22 in damages for nuisance/negligence in constructing a storm water system and ignoring a Stop Work Order concerning new construction located at a property adjacent to Tortorici’s residence on or about November 12, 2021.

Tortorici testified on his own behalf and called no witnesses. He was cross-examined by Massaroni and made a statement in rebuttal. Massaroni testified on his own behalf and called no other witnesses. He was cross-examined by Tortorici and made a statement in rebuttal. Both parties offered various documents in evidence with the consent of the other.

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“Cain/Able” Legal Duel Over Property in Queens:

This was originally posted on the SGR Blog.

Did Brother Establish a Constructive Trust?

Subodh C. Sarker and Nirmal C. Das are brothers. Das is the title owner of real property in Queens, which he acquired from Sarker by bargain and sale deed dated August 26, 2002. Sarker continued to reside at the property after the sale.

In May 2018, Das started a holdover proceeding in the Civil Court to evict Sarker from the property. Das was successful in the holdover proceeding and a warrant for eviction was ultimately issued.

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