Monthly Archives: August 2022

Kayaker Pleads Guilty to Homicide in Boyfriend’s Drowning Death

This was originally published on the SGR Blog.

Did Girlfriend Have Defense to Estate’s Civil Suit?

On April 19, 2015, Vincent A Viafore and Angelika Graswald were kayaking in separate kayaks in the Hudson River in Orange County, New York. The weather that day was cold and windy, with water temperature in the 40’s. Viafore was not wearing a life vest or a wet suit. Viafore and Graswald entered the Hudson River from Plum Point Park in Orange County and went to what is commonly known as “Bannermans Island,” an island in the Hudson River slightly southeast of the Plum Point. The couple spent about two hours hiking the island before disembarking back to Plum Point. Viafore and Graswald left the island at about 7:00 p.m. The waters were rough, it was windy, and it was getting dark. Viafore’s kayak paddle was missing a locking clip and had no drain plug, as it was removed by Graswald. While crossing the Hudson, Viaore’s kayak began to take on water and began to sink. Viafore exited his kayak and entered the river. Ultimately, he drowned in the river.

Graswald was arrested and charged with Second Degree Murder and Second Degree Manslaughter. On June 24, 2017, the case against Graswald was resolved by her plea to Criminally Negligent Homicide.

Continue reading

Patron Falls Off Swivel Chair at Monticello Casino

This was originally published on the SGR Blog.

Was Operator Liable for “Excessive Swivel” Injury?

Jeanine Monticello brought an action for injuries sustained on May 22, 2018, from an alleged trip and fall on a swivel chair on the main floor of the casino owned by Monticello Raceway Management, Inc. located at Route 17B, Monticello. Jeanine died on July 16, 2019, and her husband, Charles Cimorelli, Jr., was appointed administrator of her estate. The estate sued Monticello and alleged that the swivel chairs were not properly secured to the floor and that the chair had “excess swivel.” Monticello moved for summary judgment in that the alleged defective condition was open and obvious and not inherently dangerous.

A New York landowner owes people on their property a duty of reasonable care under the circumstances to maintain their property in a safe condition. However, in order for a landowner to be liable in tort to a plaintiff who is injured as a result of an allegedly defective condition upon property, it must be established that a defective condition existed and that the landowner affirmatively created the condition or had actual or constructive notice of its existence.

Continue reading

Neighbor Injured When Dog Next Door Attacks Her Pets

This was originally published on the SGR Blog.

Court Decides if Viable Claim is Asserted

Maria Grajeda sued Karin Hablo, as administrator of the estate of David B. Sulyma, after an incident involving a dog attack on September 20, 2014 in front of the Grajedas’ home in Chester, New York.

On September 20, 2014, at approximately 3:00 p.m., Maria Grajeda was on her front porch with her two dogs, Charlie and Sandy. David B. Sulyma lived next door with his two golden retrievers. Sulyma’s two golden retrievers approached Grajeda’s porch and started barking at her dogs. Sandy ran to the door of Grajeda’s home, and was let inside. As Sandy was let inside, Charlie was attacked by Sulyma’s dogs. Grajeda grabbed one of the dogs by the collar and attempted to separate them, but the attacks continued. As Grajeda attempted to grab Charlie, one of Sulyma’s dogs put his paws on her shoulder, causing her to fall to the ground on her right side. She continued her attempts to get Charlie, but the dogs “were pulling [her] and pulling Charlie” toward Sulyma’s property. She fell “a couple times” as she attempted to intervene in the attack.

Continue reading

Snowmobiler Intoxicated at Time of His Death in Crash:

This was originally posted on the SGR Blog.

Was Decedent “Visibly Intoxicated ”At Time He Was Served Drinks So As To Implicate Dram Act Liability?

The New York Alcoholic Beverage Law prohibits the sale of liquor to an intoxicated person. The Dram Shop Act creates a private civil cause of action against those who overserve drinks in favor of third-parties who suffer personal injuries as a result of a violation of the ABC Law. But to trigger Dram Shop liability a claimant must establish that the miscreant was “visibly intoxicated”—a fact and case specific burden.

Michael Stanley, Thomas Kelly, and five other men met at the home of Thomas and Jillian Kelly on March 17, 2017; the group left the Kelly’s home, with Stanley driving a snowmobile owned by the Kelly’s; the group stopped at the Boonville Hotel, Inc. and consumed alcohol there; and after leaving the Hotel the group got gas and began the return trip to the Kelly’s home. At that point, Stanley drove the snowmobile into a concrete overpass, resulting in his death. The autopsy report indicated the cause of death was multiple traumatic injuries due to snowmobile accident with a fixed object. The toxicology report showed Stanley had a blood alcohol concentration (BAC) of .16%. The Oneida County Sheriff’s Department concluded that speed and alcohol were the two biggest contributing factors to the single snowmobile accident.

Continue reading

Driver “Blinded by Sun” Hits Biker

This was originally published on the SGR Blog.

Was “Emergency Doctrine” a Defense?

Andrew DiNatale sued to recover damages for injuries he allegedly sustained on April 29, 2015 while riding a bicycle. He was struck by a motor vehicle owned by Mac Mechanical Conveyor (MCC) and operated by Nicholas Gerbano.

DiNatale moved for partial summary judgment in his favor as to MMC/Gerbano’s negligence, arguing that their actions were the sole proximate cause of the accident. DiNatale also sought an order striking their affirmative defenses related to “negligence liability.” In support of the motion, DiNatale submitted his own affidavit, various photographs, and a certified copy of an MV-104A police accident report.

Continue reading

Bickering Neighbors Sue and Counter-Sue After Altercation and Arrest:

This was originally published on the SGR Blog.

Court Patiently Parses Panoply of Pernicious Pleadings

A front-yard fracas erupts among neighbors. Police are called. An arrest is made. The charge is dismissed. Civil litigation ensues.

A verbal altercation occurred between Denise Mahoney and her neighbors on August 28, 2016. The spat allegedly began after Terry Mayowski looked through the window of his home and spotted Mahoney standing in her front yard across the street waiving her finger and shouting obscenities at him. After observing Mahoney, Mayowski walked into his front yard to confront her. Melissa Teehan, Mayowski’s girlfriend, joined Mayowski shortly after she overheard the shouting and began arguing with Mahoney.

As the verbal confrontation ensued, Mahoney allegedly threatened to assault the couple. Teehan, allegedly feeling threatened, returned into her home and called the police. Teehan and Mayowski made a statement to the police after they arrived and Mahoney was arrested and charged with harassment. Teehan also obtained an ex-parte order of protection against Mahoney, causing the police to take possession of her firearm.

Continue reading

Contiguous Owner Opposes Neighbors Application for Roof Protection:

This was originally published on the SGR Blog.

Court Weighs and Resolves Competing Claims and Interests

New York has a statutory procedure in which a real property owner contemplating construction or renovation work may petition the Court for a license to install roof protection and safety devices that implicate the rights of a neighbor. But, as a recent case illustrates, the Court may be required to weigh and evaluate competing claims, facts, and interests in addressing the petition.

145 E. 57th St. Associates, LLC sought an order, pursuant to RPAPL 881, granting it a license to enter the neighboring property of Aldo LLC at 149 E. 57th St., to install required roof protection and construction safety devices. Associates was required to perform masonry repair work along the brick facade of its building, including a wall shared with Aldo’s building. But Aldo opposed and contended that Associates had erected a sidewalk shed in front of its building without its permission and that Associates waited 42 days after receiving a work permit to seek access from Aldo—so “there is no emergency.”

Continue reading

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.

Continue reading