Monthly Archives: December 2021

Patron Slips On Water Near Gym Shower Room:

This was originally posted on the SGR Blog.

Was Owner Liable for Personal Injury?

Some fact patterns raise the question of why the suit was even filed?  A recent case is illustrative.

On the evening of March 28, 2018, while at the gym, which is a corporately-owned location of Planet Fitness, located in the City of Newburgh, Orange County, Jason Briggs allegedly slipped and fell in a puddle of water that had accumulated near the shower in the men’s locker room. He filed a negligence action against Planet Fitness to recover damages for personal injuries he sustained due to the fall.

Supreme Court dismissed Briggs’ complaint—finding that Planet Fitness established, prima facie, that it did not have constructive notice of the alleged condition and that there was no dangerous condition. Briggs failed to raise a question of fact in response. Briggs appealed.

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Does Not End Well for Rogers in Endwell, New York

This was originally posted on the SGR blog.

Court Reviews Quintet of Driveway Easement Claims

Still another dispute between neighbors over driveway rights in which five legal grounds in support of an easement claim were asserted– and resulted in a decision that carefully explained the legal basis of each such claim and meticulously applied the law to the facts.

Kurt and Gina Rogers and Pietro Melchiore owned property on Smith Drive in Endwell, New York.  The Rogers owned property which fronted on Smith Drive, while Melchiorre’s property was located directly on the property, further from Smith Drive. There were two-family homes on both properties. Melchiorre lived on his property. And the Rogers rented out their property.

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Prisoner Delivered Notice of Appeal to Prison Employee:

This was originally posted on the SGR Blog.

Was Appeal Time-Barred for Late Filing of Notice With Court?

It is not unusual for inmates to represent themselves in proceedings against prison authorities—legally characterized as appearing “pro se.”  But, as a recent case before New York State’s highest court illustrates, a so-called “jailhouse lawyer” may prevail in arguments against a more seasoned and licensed prosecutorial counterpart.

Daniel Miller, a prison inmate, sued the Department of Correction in Supreme Court—and, representing himself, sought to appeal an adverse decision in that Court to our State’s intermediate appellate court, the Appellate Division.  The DOC moved to dismiss Miller’s appeal to the Appellate Division, asserting that his notice of appeal was neither timely served nor timely filed. In opposition to that motion, Miller—a pro se inmate—submitted documents and an affidavit asserting that, before the deadline for filing, he delivered to a prison employee the notice of appeal addressed to the clerk’s office and a service copy addressed to the DOC, as well as records purporting to show that he requested a deduction of the cost of postage from his inmate account on that day. The Appellate Division nevertheless granted the DOC’s motion and dismissed the appeal without explanation.

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Was Traffic Stop, Search & Seizure Legal:

This was originally posted on the SGR Blog.

Court of Appeals Disagrees (4-3)

Our Courts regularly hold evidentiary hearings to determine whether evidence seized by the police without a warrant should be suppressed. A recent case reached our State’s highest Court after the Supreme Court denied a motion to suppress drugs found during a traffic stop– and the Appellate Division agreed. Four Judges of the Court of Appeals affirmed in a brief opinion. But three Judges dissented in a far more detailed recitation of the facts followed by an even more comprehensive legal rebuttal.

Reginald Blandford appealed the denial of his motion to suppress marijuana found during a traffic stop of his vehicle. In the course of a stop predicated on the observation of traffic violations—the legality of which (according to the majority decision) Blandford did not contest before the Court of Appeals.

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Real Property Buyer Never Declared Seller in Default:

This was originally posted on the SGR Blog.

Can Purchaser Nevertheless Recover Down Payment?

Contracts for the sale of real property as often as not initially provide for an “on or about” closing date–with time not being of the essence. But what happens when the closing date passes and the buyer subsequently contends that the seller could not deliver clean title as required by the contract? May the buyer recover his deposit without first setting a time of the essence closing date before which the seller can clear the title defect?

In November 2006, Fermin Xelo entered into a contract to purchase residential real property from Ena M. Hamilton for $854,900.  Under the contract, Xelo paid a down payment of $15,000, deposited in the escrow account of Hamilton’s attorney, Michael Singer. The contract provided that the closing was to occur on or about 60 days after the execution of the contract.

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Brownstone Battle on W. 121st St. in Manhattan:

This was originally posted on the SGR Blog.

Did In-Laws Own 25% Interest in the Property?

A man purchases a brownstone in New York City and verbally agrees that his parents would receive an interest in the building and one of the four apartments in exchange for partially funding the purchase. But, as a recent case illustrates, the matter becomes far more complicated when the man and his wife part ways and, in the divorce proceeding, the wife challenges her in-law’s legal claim and equitable lien.

Carol and Bernard Davis sued to quiet title to real property at 106 West 121st in Manhattan. They alleged that, in 2001, Peter Davis, their son, purchased a four-story brownstone in Manhattan that was divided into four apartments. According to his parents, before Davis closed on the property, they entered into a contract with their son pursuant to which they would pay their son $350,000 in exchange for 25% ownership interest in the brownstone and exclusive possession of the ground floor apartment. According to the agreement, Carol and Bernard further alleged, they paid the $350,000 and have remained in exclusive possession of the ground floor. And they sued to amend the deed for the brownstone to correct the mistake that the deed did not reflect their 25% interest in the property.

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Of Course, You Have an Insurance Policy:

This was originally published on the SGR Blog.

But Does the Policy Provide Coverage?

The COVID pandemic and the resulting Executive Orders limited business activity– and triggered a tsunami of so-called insurance “coverage” disputes in which the insured claims and the carrier disclaims coverage for losses and expenses incurred as a result of the downtown in commercial activity. But, as a recent case illustrates, coverage under any number of theories may be expressly or impliedly barred by the language of a policy—which requires the Court to meticulously navigate a plethora of carefully defined terms that may give meaning to other defined terms.

Island Gastroenterology Consultants, PC, and Island Endoscopy Center, LLC obtained two separate, but materially identical, business owners’ insurance policies from the General Casualty Company of Wisconsin from September 1, 2019 to September 1, 2020. The policies covered “direct physical loss of or damage to the Covered Property at the premises described in the Declarations caused by or resulting from any Covered Cause of Loss.” The premises described in the Declarations were the medical offices located at 1111 Montauk Highway and 1175 Montauk Highway, West Islip, New York. “Covered Property” included “Buildings,” “meaning the buildings and structures at the premises described in the Declarations,” and “Business Personal Property located in or on the buildings at the described premises.” “Covered Causes of Loss” were defined as “[r]isks of direct physical loss” unless excluded or limited.

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