Category Archives: Litigation

New York Court of Appeals Update (July 2019)

This was originally published on the SGR Blog.

As the 2018/2019 Term approached the “homestretch”, the Court of Appeals published a “blockbuster” 4-to-3 decision holding that a commercial tenant-to-be, represented by counsel, could waive the right to prosecute a declaratory judgment action and seek Yellowstone relief; another 4-3 ruling with respect to personal jurisdiction over the Ohio firearms’ salesman of a gun used in a New York homicide; and a 6-1 opinion relating to strict liability for design defects. Consistent with a recent trend, all three cases featured unusually strident dissents.

159 MP Corp. v. Redbridge Bedford, LLC
2019 NY Slip Op 03526
Decided on May 7, 2019

In New York, agreements negotiated at arm’s length by sophisticated, counseled parties are generally enforced according to their plain language pursuant to the strong public policy favoring freedom of contract. May commercial tenants who unambiguously agreed to waive the right to commence a declaratory judgment action as to the terms of their leases ask the Court to invalidate that waiver on the rationale that the waiver is void as against public policy?

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The Creston Avenue Bathtub Brouhaha

This was originally published on the SGR blog.

Who has the time and energy to fight about a leaking bathtub? Some people apparently do. In a recent case, a residential apartment tenant (acting without an attorney) prosecuted claims against his landlord for tub-related building code violations relating to the stability of the bathtub and the containing walls in the upstairs apartment.

To resolve the dispute, a Civil Court Judge, his Court Attorney and three Court Officers went to the apartment, a third floor walk-up on Creston Avenue, to conduct an inspection.

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What’s Sauce for the Goose…

This post was originally published on the SGR Blog.

Julianne Allen sued her neighbors Jennifer and John Powers claiming that their two German Shepherds barked incessantly. The dogs’ constant barking at all hours allegedly interfered with Allen’s right to quiet use and enjoyment of her property. The Powers denied the allegations and asserted a counterclaim contending that Allen had repeatedly called municipal authorities with specious complaints in prolonged efforts to make them move or have their landlord, David Bosko, evict them.

Allen asked the Court to dismiss the counterclaim for failing to state a cause of action. Allen argued that the Powers’ allegations sounded like a claim for harassment— and New York does not recognize such a cause of action.

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Terrace Tiff at Worldwide Plaza

This was originally published on the SGR Blog.

Paul M. Lincoln sued Residences at Worldwide Plaza  in Small Claims Court for “loss of use of property.” He sought damages for the loss of use of his condominium unit’s outdoor terrace as a result of renovation of the building’s exterior.

The material facts were not disputed at trial. Lincoln owns Unit 7G at the Residences, a multi-unit condominium building located at 350 West 50th Street, New York, New York. The apartment is 624 square feet, nearly identical in most respects to the other “G line” units above and below the apartment– with the exception of a large terrace adding an additional 1,028 square feet. Given the relative size of the terrace and apartment, Lincoln regularly utilized the terrace for personal use and to host gatherings, particularly during warmer months. For the additional square footage compared to other apartments, Lincoln paid $335 more per month than other “G line” unit owners lacking terraces.

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New New York Court of Appeals Update (May 2019)

See our latest Court of Appeals update on the SGR Blog.

Your Tax Dollars at “Work”: State of New York and Town of Oyster Bay Litigate Ownership of Underwater Property

This was originally published on the SGR blog.

Brian Murphy was cited by the Town of Oyster Bay for shellfishing without a permit. Murphy was fishing in waters around the maritime boundary between Oyster Bay and Long Island Sound, ownership of which was claimed by both the Town and the State. Murphy filed suit against the Town, the State, and others. He sought a judgment declaring that the Town-issued citation was invalid because he was shellfishing in Long Island Sound, for which he had an appropriate permit from the State.

The State of New York sued the Town of Oyster Bay for a judgment declaring that the State was the owner of the disputed underwater property. Supreme Court, Nassau County, granted the State’s motion for summary judgment and denied the Town’s motion for summary judgment. And declared that the boundary line between Oyster Bay and Long Island Sound was the line running east from Rocky Point in Oyster Bay to Whitewood Point on Lloyd’s Neck; and that the  State of New York owned all of the underwater lands north of that line.

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Who Let the (Cat) Out?

This post originally appeared on the SGR blog.

David Finn and his wife sued Ashlynn Anderson in Jamestown City Court for ownership/custody of a cat.

The Finns moved to Wescott Street in September of 2018. Around that time, they noticed a white cat frequently wandering onto their property looking for food. The cat was quite thin, and had no identification tags. They assumed that the four year old cat was a stray, named him “Sylvester”, and began feeding the cat in the entry-way of their home. The Finns fed Sylvester frequently for several months before bringing him into their house.

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But Only God Can Make a Tree (Joyce Kilmer, 1914)

This was originally posted in the SGR Blog.

Ironically, despite their divine origin, disputes between neighbors over trees often arise and, as a recent case illustrates, become the subject of hard fought litigation.

Shafi Ahmed and Nusrat Ahmed filed a Small Claims proceeding against their Middletown, New York neighbor,. Allen H. Zoghby . Both Parties appeared without attorneys.

The Ahmeds alleged that roots from a tree, purportedly on the property next door  owned by  Zoghby (73 Beattie Avenue), damaged the pavement and driveway located at the front of the house on their property (75 Beattie Avenue).  The Ahmeds also alleged that the tree’s roots were slowly moving under the foundation of their house and that branches from the tree on Zoghby’s property had to be cut and trimmed by them at their cost. The Ahmeds initially sued Zoghby for $3,800.00.

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MOTORCYCLE-INVOLVED ACCIDENTS RAISE COMPLICATED ISSUES AS TO LIABILITY, CAUSATION AND ALLOCATION OF FAULT

I cannot recall why and when I first started collecting the articles about motorcycle accidents; however, over time, I realized that lawsuits arising from such claims are very common (in retrospect, for obvious reasons, the inherent danger and risk of riding a motorcycle).  The causes raise a broad panoply of issues including proximate cause, helmet design and manufacture; and road and intersection signage and speed limits.  A few recent examples follow:

Caro v. Chesnick, 2017 NY Slip Op 07940 (1st Dept., November 14, 2017)

Supreme Court granted defendants’ motion for summary judgment dismissing the complaint.

The First Department briefly described the facts:

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SHOUT “FORE” BEFORE TAKING THAT “MULLIGAN”

Golf, like any other recreational activity, runs the risk of accidents on the course – and the resulting injuries often lead to “finger pointing” as to which golfer was at fault.  And the game also often raises predictable and unpredictable collateral disputes such as whether a golf club membership is property that can be seized by a judgment creditor; and claims for trespass and nuisance damages when golf balls land on an adjacent property.  Several recent examples follow:

MacIsaac v. Nassau County, 2017 NY Slip Op 05814, 2d Dept. July 26, 2017 Continue reading