Monthly Archives: April 2024

Townhouse Sues Neighbor/Tenant After Shared Sewage Line Backup

Courts Addresses Claims For Compensatory and Punitive Damages

SJWA LLC asserted claims for trespass and private nuisance based on repeated backups of sewage in the basement of their townhouse. The property next to the townhouse is owned by Father RealtCorp., which leased the top two floors of its property to Chelsea 7 Corporation. According to the complaint, the backups  resulted from  Realty and Chelsa’s misuse of a shared sewage line running from their property under SJWA’s property and then to the main line in the street. Motion practice and an appeal ensued.

SJWA made a prima facie showing of trespass by submitting evidence that there was an intentional and unauthorized entry upon their property and that they did not take the premises subject to any license. In opposition to SJWA’s trespass claim,  Realty and Chelsa contended that they had a license to use the pipe based on an agreement entered into in 2006 between Realty and the prior owner of SJWA’s property after the pipe serving both properties was severed during construction on an abutting property. According to Realty, the prior owners agreed to share the cost of re-laying a combined sewage pipe, which was inspected and approved by New York City agencies, and Realty continued to use the pipe without incident until the backups that occurred.

Continue reading

Long Beach Cyclist Injured After Swerving to Avoid Beachgoers

Was City Liable For Failure to Demarcate Boardwalk Bike Lane?   

Linda Kuchmeister, sought damages for injuries she sustained while attempting to avoid pedestrians who entered her bicycle lane as she was riding on the boardwalk in Long Beach, New York. Kuchmeister struck a movable sign located in the middle of the boardwalk and fell, breaking her shoulder, after she was forced to swerve to avoid crashing into the pedestrians. The City moved for summary judgment dismissing Kuchmeister’s complaint.

The boardwalk bicycle “lane” was not physically segregated from the throngs of beachgoers and visitors utilizing the boardwalk and was not demarcated by painted lines. The City of Long Beach conceded that it received “a great deal of complaints,” including in writing, that the bike “lane” constituted a dangerous condition for those on the boardwalk. Notwithstanding that the known dangerous condition allegedly had resulted in injury, the City sought summary judgment dismissing the complaint.

Continue reading

Bar Patron Stands on Couch, Sings and Falls Thru Window

Were Operator/Owner Liable for Injury to Karaoke Diva?

Julia Kitziger was singing and moving her body while standing on a couch or banquet at Planet Rose’s karaoke bar when the couch moved forward. She then fell backwards, falling through the floor-to-ceiling glass in the storefront window. Litigation ensued against the bar and the owner of the building. Planet Rose and the property owner moved for summary judgment dismissing Kitziger’s complaint. Supreme Court denied the motion. Planet Rose appealed.

The appellate court found that Planet Rose failed to eliminate material issues of fact as to whether the bar had notice of the window’s dangerous condition, and whether the premises was maintained in a reasonably safe condition.  Planet Rose demonstrated that the window, which did not have tempered or safety glass, complied with applicable building code provisions when it was installed. But, even if the premises complied with applicable building code provisions, a landowner had a common-law duty to maintain the premises in reasonably safe condition in view of all the circumstances. Here, the owner of Planet Rose acknowledged that when vandals smashed another window in the storefront years earlier, the glazier recommended tempered glass as the best option for a storefront, and she accepted that recommendation. She also testified that there were many times over the years that patrons stood on the couch, as shown in photographs posted on Planet Rose’s social media. Thus, the record presented issues of fact as to whether Planet Rose was negligent in failing to use tempered glass in the window to prevent a foreseeable injury.

Continue reading

Trevisan and Moriera Sued After Blazer Bites Low

Court Addresses Cross-Motions For Summary Judgment

Felicia Low was injured after sustaining a bite caused by Kathryn Trevisan’s dog, Blazer.  Low brought suit  against Trevisan and Lucas B. Moriera, who was walking the dog, asserting three claims, including negligence, strict liability, and a claim pursuant to New York Agriculture and Markets Law § 123(10).  Low moved for summary judgment on the issue of whether Blazer had a violent propensity, creating strict liability. And Trevisan and Moriera moved for summary judgment on the issue of strict liability. The Court addressed the motions together.

It was undisputed that Moriera was walking Blazer and another dog when they encountered Low, who stepped aside to allow Moriera and the dogs to pass. Blazer then bit Low. In dispute, however, was whether Moriera later stated Blazer had bitten him in the past or whether Blazer had ever previously bitten or attempted to bite anyone. 

Continue reading

Plaintiff Arrested By NYPD Officer For Violation of Protective Order

Did NYPD Have Probable Cause? Or Was City Liable For False Arrest?  

Travis Marshal filed suit against the City of New York arising out of his allegedly false arrest. At his examination before trial, Marshal testified that he was at home in his apartment at 1649 Amsterdam Avenue, New York, New York, and went downstairs to the lobby to get some fresh air at approximately 3:30 p.m.  While downstairs, he observed Donald Wilkinson, a former resident of the building, speaking to a female police officer. The police officer with whom Wilkinson was speaking asked Marshal to approach them. After approaching, Marshal asked Wilkinson about fifty dollars he believed Wilkinson owed him. The police officer then informed him that Wilkinson had an order of protection against him and arrested him for violating the order. 

The arresting  NYPD officer, Caroline Gehm, testified that on the date of the arrest, she received a report from a 911 dispatcher about a dispute and violation of an order of protection at 1649 Amsterdam Avenue. Gehm testified that the 911 dispatcher stated, specifically, that Wilkinson had reported that Marshal had told him he would kill him after that order of protection expired.

Continue reading

Petition Filed To Amend Birth Certificates of Parents and Grandparents

Was Relief Sought  Warranted Under NYC Health Code?

David Mastron petitioned the Court to amend the birth certificate of his father, Victor Mastron.  Specifically, he sought to change the name of the father on the certificate (his grandfather) from “Alberto Mastron” to “Ascensino Mastronardi”, the name of the mother (his grandmother) from “Giuseppina Mastron” to “Josephine Mastron”, and the mother’s unmarried name from “Giuseppina Mastron” to “Josephine Russo.”

In opposition, the New York City Department of Health and Mental Hygiene argued that the documentation provided to amend Albert Mastron’s name contained multiple spellings and aliases and, notably, the name sought was not among the aliases provided. The Dept. also opposed amendments to “Giuseppina Mastron” because the name and age listed on the supporting documents were inconsistent with the name written on the certificate. Mastron was also unable to provide a copy of his grandmother’s birth certificate for consideration.

Continue reading

Contentious Dispute Between Contiguous 47th St. Property Owners

Court Decides Rights To 18 Inch/100 Foot Boundary Line Strip

In 2007, Jemsco Realty LLC acquired property on the north side of West 47th Street described as 29 West 47th Street. At that time, the lot was improved with a 16-story building, the east wall of which extended to the property line. In 2018, N47 Associates LLC bought the lot immediately to the east, described as 27 West 47th Street. At that time, the lot was improved with a six-story building built in 1924, whose west wall was parallel to and 18 inches east of the property line. Jemsco and N47 asserted competing claims to the 18-inch wide and 100-foot-long strip of land between the west wall of the N47 Building and the east wall of the Jemsco building. There was no dispute that the strip was within the metes and bounds of  N47 Building.

Continue reading

Harrison Falls Off Herman at Minieri’s Parkview Riding Center

Did Patron Assume or Release Risk of Horseback Riding Injury?

Francine Harrison fell off a horse (called “Herman”) at Minieri’s Parkview Riding Center and was dragged with her foot caught in the stirrup, causing her various injuries including a broken femur. Specifically, Harrison claimed the horse was “rooting” (thrusting/pulling, his head down), and that she had received no instructions on how to respond to this dangerous behavior until the accident occurred. Litigation ensued.

Riding Center claimed that it was entitled to summary judgment dismissal because there was insufficient admissible evidence to establish an issue of fact concerning any negligence; Harrison’s execution of the riding instruction agreement and liability release was valid; the action must be dismissed based on the doctrine of primary/express assumption of risk and also based upon the doctrine of implied assumption of risk; and finally, because Harrison failed to establish proximate cause.

Continue reading

Residential Coop Tenant Posts Allegedly Defamatory Statements on Website

Did General Manager & Superintendent  State Legally Cognizable Claims?

North Shore Towers Apartments Incorporated is a residential cooperative complex located in Queens. Glen Kotowski and Steven Cairo are employed as the general manager and general superintendent of the complex, respectively. They commenced an action to recover damages for allegedly defamatory statements made by Eric Kozminsky, a resident of the complex. The allegedly defamatory statements about Kotowksi, Cairo and conditions at the buildings, were made through a post on the social networking website In the post, Kozminsky, inter alia, reproduced extensive excerpts of filings in an action brought against NST, Cairo, and Kotowski by a former NST employee, and urged other residents to vote in an upcoming election for the NST’s board for directors who would replace the management of the complex. Kozminsky moved to dismiss the amended complaint. Supreme Court denied the motion. Kozminsky appeals.

Continue reading