Monthly Archives: April 2022

Judge Doubts Accuracy of Divergent Testimony by Both Sides:

This was originally posted on the SGR Blog.

Would the Court Nevertheless Resolve the Discrepancies?

The resolution of a case often is a matter of weighing the credibility of witnesses by the trier of fact (judge or jury). But what is a Judge to do when the testimony of all of the competing witnesses raises questions of accuracy and credibility?

As prologue the Court stated: “This case involves a confused tale. The witnesses’ testimonies diverged significantly. The court was not satisfied that any of the three main witnesses’ testimonies were completely accurate. Moreover, the parties presented fuzzy dates rather than exact ones. So, the recitation of the facts…below implicitly resolves the numerous discrepancies in the testimony. These findings of facts are based upon the credible evidence and the fair inferences made therefrom.”

Continue reading

Member Injured During 300 Pound Tire Flip at Cobalt Fitness:

This was originally posted on the SGR Blog.

Was Injury Claim Precluded by Pre-Accident Waiver and Release?

Upon joining a health club, gym or fitness center, new members are regularly and routinely required to sign a waiver or release that exempts the owner/operator from liability for accident or injury claims by the members. But is such exculpation available where a member participates in a 300 pound tire flip class?

Andrew Dinkel IV was injured on February 23, 2017, when he was struck by a truck tire being flipped during an exercise class conducted at Cobalt Fitness, LLC. His back was to the tire that was flipped by two other participants in the class, and the tire, weighing approximately three hundred pounds (300 lbs.) or more, landed on the back and side of Dinkel’s left leg. He ultimately required surgery to repair his left foot/ankle and he remained unable to work on light duty until September 2017. Dinkel returned to full duty as a firefighter in February 2018. He alleged that Cobalt was negligent in failing to: properly organize the tire flip activity in a safe manner; properly organize the members performing the activity; to warn users of the tires about the dangers associated with flipping tires in close proximity to one another; and in failing to have more instructors present to properly supervise and guide the members in proper performance of the tire flip activity.

Continue reading

Who Owned 31 Drawings by Alexander Calder?

This was originally posted on the SGR Blog.

Court Adjudicates Conflicting Claims for Possession

Almost fifty years ago, the renowned artist Alexander Calder allegedly gifted away 31 drawings. Half a century later, during which several transfers and transactions intervened, the Calder estate sought to recover the pieces from the gallery then in possession of the works.

Prior to his death on November 11, 1976, Alexander Calder, a renowned artist, allegedly gifted to Alfredo Melgar thirty-one drawings. Melgar retained the drawings in his possession until July 15, 2014, when, pursuant to a consignment agreement with a gallery, Chowaiki & Co., he delivered the drawings to non-party Ezra Chowaiki for sale. Melgar alleged that the drawings were neither sold during the consignment period (July 15, 2014 through December 31, 2014) nor returned to him by January 15, 2015 as set forth in the agreement.

Continue reading

UCC Lien Filed Against 16th Century Portrait of de` Medici by del Sarto:

This was originally posted on the SGR Blog.

Would Court Direct Immediate Filing of Termination Statement?

The Uniform Commercial Code authorizes the filing of a lien  to perfect a security interest in personal property. But, as a recent case illustrates, the Court may be called upon to adjudicate the validity of the filing/lien.

A 16th century painting, entitled Portrait of Ottaviano de` Medici by the artist Andrea del Sarto, was scheduled for a UCC auction sale at Sotheby’s. Virginia Bonito challenged the validity of a UCC-1 lien filed by Ian Peck, Empire Chesapeake Holdings, LLC and Chelsea Fine Arts Holding, LLC against the painting in May 2021. Arguing that they had no security interest. Bonito moved for injunctive relief and Peck, Chesapeake and Chelsea cross-moved to dismiss Bonito’s complaint.

Continue reading

Shopper Trips and Falls Over Mannequin at Department Store:

This was originally posted on the SGR Blog.

Was Kohl’s Negligent and Liable for Customer’s Injury?

We have all had the experience of navigating the aisles, stands and displays that must be traversed in a department store. As a recent case illustrates, the Court was required to determine if the operator was liable when a customer tripped and fell over a mannequin stand and display.

Jodi Leckie sued Kohl’s Department Stores, Inc. to recover for personal injuries she allegedly sustained as a result of a trip-and-fall accident that occurred on March 18, 2017 at the Kohl’s store located at 5000 Nesconset Highway in East Setauket, New York.  The accident allegedly occurred when Leckie tripped and fell on a mannequin stand display. Leckie alleged that Kohl’s was negligent in permitting the display to protrude into an aisle creating a hazardous condition.

Continue reading

After Medical Complaints: Sing Sing Prisoner Injured in Fall Down Stairs

This was originally posted on the DGR Blog.

Was New York State Liable for Medical Malpractice/Negligence?

A convict complained about lower back pain radiating into his legs and asked to be moved to a cell on the medical treatment floor to by-pass the stairs.  The request was denied and the prisoner was subsequently injured when he fell on the stairs.

The convict sued. Was the State liable?

On or about January 14, 2016, James Marsh was on his way to sick call at approximately 5:30-6:00 a.m. at the Sing Sing Correctional Facility from A Block, K company, 50 cell. As he descended the stairs, upon turning onto J Company, while holding onto the railing, he fell down the stairs when his right leg gave out due to prior severe lower back pain radiating into his legs.

Continue reading

Drug Crime Parolee Stopped For Minor Traffic Violation:

This was originally posted on the SGR Blog.

Was There Probable Cause for Search, Seizure and Drug Arrest?

Dane Pennie, on parole after being convicted of a drug offense was stopped for a traffic violation. The police searched the car; drugs were found; the driver was charged with a drug crime–parole violation and traffic offense; prosecuted and found guilty of the parole violation but not the traffic offense; and the drug charge was not prosecuted. Pennie was incarcerated for more than a year after his arrest.

Pennie sued the State of New York for false arrest and wrongful confinement that arose from the seizure of drugs by State troopers from a vehicle he was driving in the Town of Wallkill on July 30, 2017. The drugs were seized after the troopers stopped the vehicle for a traffic violation and then conducted a search. The Court held a trial by video conference on July14-15, 2021.

Continue reading

Scenario: Love on the Rocks

This was originally posted on the SGR Blog.

Lesson learned:  Trust But Verify

Continuing with reports of the legal and collateral consequences when romantic relationships (with undocumented financial connections) rupture:

In mid-2017 Nebular Hou met Terry Zhang by October 2017 they began “a romantic relationship.”

Also in October 2017, Terry informed Nebular that his bank account, containing more than $100,000, was “frozen” and that his employer, Tristate, Auto Service Center Inc. was “struggling financially.”

Continue reading