Was Live Nation/MSG Liable for Bottle Thrown from
Amanda Giovacco, an audience member, alleged that she
was injured while attending a concert at Madison Square Garden. Aubrey Drake
was the featured performer. Giovacco was hit in the head by an aluminum bottle
thrown from the crowd. Litigation ensued. MSG and Live Nation moved to dismiss
the complaint. Giovacco moved for summary judgment.
Live Nation, as promoter and producer of the concert,
entered into an agreement with Drake’s production company, Away From Home
Touring, Inc. The contract required Live Nation to provide security for the
event. Live Nation also entered into a license agreement with MSG, the owner
and operator of the Garden. Pursuant to the license agreement, Live Nation was
allowed to use the arena for the concert and MSG was to provide security
officers for the event.
Splits on Which of Two Plausible Interpretations Prevails
It is Contract Law
101 that ambiguities in a contract should be resolved against the party that
drafted the agreement. And that is especially the rule with respect to
insurance policies that are drafted solely by the carrier. But, as a recent
case decided by the New York Court of Appeals arising from denial of a claim
under a one-million-dollar life insurance policy illustrates, a different and
difficult question arises where both the insured and the carrier agree that a
clause is ambiguous—and both present plausible interpretations.
Landlord Estopped from Asserting That No Binding Agreement Was Made?
In March 2021,
Odonata Ltd., the tenant/operator of a hair salon, notified its landlord,
Baja 137 LLC, that it would be surrendering the leased premises effective July
7, 2021, a month before the lease was due to expire, because it could no longer
afford the rent. In response, Baja offered to forgive certain rent and late
fees. And Baja advised Odonata that it would consider a third modification to
the lease, at a lesser rent and on more favorable terms, stating that Odonata
had been a “great” tenant. Odonata replied that it had already found
new spaces at lower base rents and that it was prepared to move. And Odonata
then presented Baja with a counteroffer of an even lower base rent and other
more favorable terms, stating that it was more in line with
“generous” offers it had received from other property owners. Baja
acknowledged receipt of the counteroffer and advised Odonata that it would
provide a “formal reply” to its counteroffer and that it was subject
to a lease amendment signed by both parties.
Did Favored Niece Exercise Undue Influence?
Paul Salitsky alleged in his complaint that, in December
2019, Karen D’Attanasio used undue influence or fraud to induce his elderly
aunt to execute a form changing the designated beneficiary of a $6 million
account from Salitsky to D’Attansio or that she forged his aunt’s signature on
the form. The aunt passed away in January 2021. D’Attanasio moved to dismiss
several of the claims asserted in the complaint. Supreme Court granted the
motion. Salitsky appealed.
Was Equipment Operator Negligent/Liable for Causing
Garrett Hickey and another
person were assisting Paul Regalbuto in felling trees on Regalbuto’s property
and then cutting the timber for firewood. Regalbuto was directing the two men
with regard to the work being done. Regalbuto was operating an excavator and,
once a tree had been cut down, Regalbuto used the excavator to move the tree to
a pile where it was then cut into firewood.
The excavator cab could
rotate 360 degrees and, on at least some occasions, Regalbuto was facing in the
opposite direction of the way the excavator was moving. While picking up and
moving one of the felled trees, he struck Hickey with the excavator. Hickey had
apparently stopped behind the excavator to cut a stump down closer to ground
level. Hickey testified that Regalbuto had specifically directed him to cut the
stump flush to the ground. But Regalbuto testified that he was unaware that
Hickey was behind the excavator and cutting the stump.
Was Tavern Liable for Failure to Maintain Safe Passage?
Scene set: A bar patron was hit by a car while crossing a highway after attending a Cinco De Mayo celebration. The patron sued the bar for failure to maintain safe passage. After issue was joined and depositions were taken, the bar moved for summary judgment.
This was originally published on the SGR Blog.
Was Resulting Injury Caused by Tavern’s Negligence?
Reisa Forster suffered injuries when the door of the bar and grill known as Flatiron Hall, owned by 38 W. 26th St. Restaurant Corp., allegedly slammed on her right ring finger. The bill of particulars alleged that Flatiron failed to maintain the door, which was heavy, causing it to slam back on Forster’s hand.
Flatiron Hall moved for summary judgment dismissing the complaint, arguing that the door was not defective. Further arguing that there was no notice of any alleged defective condition and that Forster’s conduct was the sole proximate cause of her injuries. In support of the motion, Flatiron Hall submitted copies of the pleadings, transcripts of the parties’ deposition testimony, an affidavit of Brian Golding, manager of Flatiron Hall, and an expert affidavit of Steven McEvoy, an engineer.
This was originally posted on the SGR Blog.
Buyer’s Claim of Justifiable Reliance Meets Defense of Caveat Emptor
On June 21, 2006, Yama Rahimzada entered into a contract to sell to R. Vig. Props., LLC three improved commercial properties for the sum of $20.4 million. The sale closed on December 20, 2006. On December 18, 2012, RVP sued Rahimzada to recover damages for fraud and deceit, misrepresentation and breach of contract.
RVP alleged that Rahimazada represented that one of the properties, located in Valatie, NY, was primarily occupied by a master tenant pursuant to a self-sustaining triple-net master lease. RVP contended that Rahimzada withheld certain facts relating to the Valatie property, including the fact that the master tenant at that property had informed him that it was experiencing financial difficulties and, absent rent concessions, would breach the master lease and vacate the property. A prior determination of the United States Bankruptcy Court for the District of New Jersey relieved all prior assignees of the master lease for that property from liability notwithstanding that the terms of the master lease, annexed as an exhibit to the contract of sale, provided that such assignees were liable; and the master tenant at that property was a single asset entity with no assets other than the lease.