Monthly Archives: June 2024

Patron at Birthday Party in Hookah Lounge Injured by Burning Coals

Court Determines Whether Plaintiff Assumed the Risk  

Aisha Gillard alleged that while attending a birthday party at  Le Rev, a hookah lounge, a hookah that contained a bowl with burning coals fell on her, causing injuries to her chest. According to Gillard, the hookah had been placed on the table in front of her and was knocked over by patrons who were dancing nearby. Litigation ensued. Le Reve moved for summary judgment dismissing Gillard’s complaint. Supreme Court denied the motion. Le Rev appealed.

Supreme Court properly rejected Le Rev’s argument that the assumption of risk doctrine was applicable to the facts of this case. The doctrine is generally limited to personal injury claims arising from sporting events, sponsored athletic and recreative activities, or athletic or recreational pursuits that take place in designated venues. The retention of the doctrine is most persuasively justified for its utility in facilitating free and vigorous participation in athletic activities that possess enormous social value, even while they involve significantly heightened risks that may be voluntarily assumed to preserve the beneficial aspects of sports as against the prohibitive liability that would otherwise arise.

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Property Owner Sues Brokerage/Broker For Refund of Commission Paid Under Protest

Court Determines Liability Under Contract That Was Modified by Seller

Jean Julian Delly sued Arvy Realty and Javier Morales for the refund of a $9,000 real estate brokerage commission that he paid to Arvy under protest. At a nonjury trial, it was established that Hector Villatoro was a licensed real estate broker doing business as Arvy Realty. It was undisputed that, after a buyer for Delly’s property whom he had located without the assistance of a real estate broker was unable to secure financing,

Delly contacted Arvy and Morales. Arvy, a licensed real estate salesperson associated with Arvy, emailed documents to Delly, including a proposed brokerage agreement which Morales had presigned on behalf of Arvy. The form proposed agreement was titled “Exclusive Right to Sell Agreement” but was modified, apparently by Delly, to state that it was “non-exclusive.” Under its compensation provisions, the emailed presigned proposed agreement stated that Delly, as “owner,” would pay the listing broker a total commission of 4% of the selling price, and specified how the payment would potentially be divided with a cooperating broker. But Delly wrote into the agreement and initialed the words “total 2% from seller” before signing and returning the agreement to Arvy and Morales.  The agreement also included a provision “that no change, amendment, modification or termination of this AGREEMENT shall be binding on any party unless the same shall be in writing and signed by the parties.”

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Rosario Injured Falling Through Roof of Cao’s Recently Purchased Building

Court Determines If Owner Was on Notice or Had Res Ipsa Loquitur Liability

Angela Rosario was injured when her foot went through the surface of a back deck of an apartment, creating a hole in the deck through which she fell. Peter Cao and others, who owned the building, had purchased the property approximately 51 days before the accident.

Litigation ensued. Supreme Court granted Cao’s motion for summary judgment dismissing Rosario’s complaint. Rosario appealed.

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Klara and Christos Sued Cindy For Constructive Trust on Bayside Real Estate

Court Determines If Daughter Held Property in Trust For Parents

Klara and Christos Koumantaros sued Cindy, their daughter, to impose a constructive trust on real property located in Bayside.  When the property was purchased title was vested to the Klara and Cindy. Klara and Christos alleged that the parties had an oral agreement whereby Cindy agreed to hold title to the property as a convenience to them and to relinquish her interest to Christos upon his request.

Following a nonjury trial, Supreme Court issued a judgment, which declared that Cindy held title to the property as a constructive trustee for the benefit of the Klara and Christos and that they were the rightful owners of the property. Cindy appealed.

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Employee Trips and Falls Off Cubicle Chair While Activating Lighting Control Motion Sensors

Was Managing Agent Liable For Launching and Instrument of Harm That Caused Accident?

Kylie Long tripped and fell on a chair in her cubicle, sustaining injuries, while getting up to activate the motion sensors that controlled the lighting that had gone off in her employer’s office building. Litigation ensued against Cushman & Wakefield, Inc., the managing agent for the building.  C&W moved for summary judgment dismissing Long’s complaint. The motion was denied. C&W appealed.

Supreme Court determined that issues of fact existed as to whether C&W, which had contracted with the employer to provide property management services, owed a duty of care to Long. There were issues of fact as to whether Long detrimentally relied on C&W to perform its obligations under the contract to keep the premises safe. C&W’s contention that Long could not claim detrimental reliance absent her actual knowledge of the property management agreement between C&W and her employer was improperly raised for the first time on appeal and, in any event, was unavailing in light of Long’s testimony, which raised an issue of fact as to her knowledge of the agreement.

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During Relationship Barber Placed Mobile Home on Woodard’s Property

Can Barber Replevin Abode From Woodward After Relationship Ends?

David Barber commenced a conversion and replevin action, seeking to recover a mobile home which he situated on the property of Marcia Crout-Woodard during their long-term personal relationship. Barber also sought the rental income derived from the mobile home and received by Woodard following the end of their relationship.

Woodard counterclaimed for money damages, alleging breach of contract, based on Barber’s alleged conversion of rental income he collected in excess of the purchase price of the mobile home prior to the parties’ break-up. Following a nonjury trial, Supreme Court found that no contractual relationship existed between the parties and dismissed the action in its entirety on the ground that the mobile home constituted a fixture on Woodard’s realty and, as such, Barber had no ownership interest upon which to base causes of action sounding in conversion and replevin. Barber appealed.

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Marino Sues City/ FDNY For Injury Suffered In Course Of Rescue From Jamaica Bay

Court Decides If Marine Division Failed To Properly Exercise Special Duty to Boater

Frank Marino commenced an action to recover damages from the City of New York and the Fire Department for personal injuries he allegedly sustained when he came in contact with the propeller of a boat’s outboard motor while he was being rescued from the waters of Jamaica Bay by members of the FDNY’s Marine Division. The complaint alleged that, among other things, the City and  the FDNY were negligent in permitting Marino to drift toward the boat’s outboard motor after throwing him a rope.

The City and the FDNY moved for summary judgment dismissing the cause of action alleging negligence. Marino opposed the motion and cross-moved for leave to amend the complaint.  Supreme Court granted the motion and denied the cross-motion. Marino appealed.

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Hirsch (Representative of Village 3 Condominium) Removed from Pondside HOA Board

Court Adjudicates Validity of Discharge Under By-Laws of Both Village 3 and HOA

Litigation arose out of a dispute over the membership of the Board of Managers of the Pondside Homeowners Association (HOA). The complaint alleged that Abby Hirsch was removed from her position on the Board of Managers of the HOA by vote of the members of the Board of Managers of Pondside Village 3 Condominium on December 4, 2021. The complaint further alleged that Hirsch, together with other individuals, thereafter held a previously-scheduled special meeting of the HOA Board on December 6, 2021 at which certain actions were taken. The complaint asserted that the December 6, 2021 meeting was not valid and any actions taken then were void due to the absence of quorum, as Hirsch purported to be one of the required four members present despite having been removed from her position as representative of Village 3 two days prior.

The HOA Board sought a temporary restraining order, in essence seeking to prevent Hirsch from attempting to participate in a meeting of the HOA Board scheduled for December 20, 2021. Upon confirmation that the President of the HOA Board had notified its members that no meeting would be held on December 20, 2021, an order to show cause was signed without a TRO.

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