Category Archives: Litigation

Intoxicated Passenger Injured in Jump from Ambulance:

This was originally posted on the SGR Blog.

Were EMTs/New York City Liable for Negligent Transport?

Yaugeni Kralkin allegedly was injured when (apparently intoxicated) he unbuckled his restraints and jumped from a New York City ambulance while being transported to a hospital. Supreme Court granted the City’s motion for summary judgment dismissing the complaint. Kralkin appealed.

Under the doctrine of governmental function immunity, government action, if discretionary, may not be a basis for liability. But ministerial actions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general.

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Service Dog Adopted Out of Animal Care Without Notice to Owner:

This was originally posted on the SGR Blog.

Would Court Intervene/Assist Recovery on Emergency Basis?

Denise McCurrie suffered from anxiety and depression and lived on disability payments. On April 16, 2021, she experienced a medical emergency at her residence, requiring the services of an ambulance. Two Emergency Medical Technicians and two police officers arrived at her home. McCurrie was transferred by ambulance to a hospital, and the police officers took her dog Roscoe to the New York City Animal Care Center. She alleged that she made the police officers aware that Roscoe was an emotional support animal.

A few days later, McCurrie contacted the police and inquired as to Roscoe’s whereabouts. She was informed that Roscoe was given to ACC, which she contacted to inquire about her dog. She was informed by ACC that Roscoe was given to a shelter, but ACC would not provide the name of the shelter to her.  Subsequently, an individual applied for and adopted Roscoe from the shelter. McCurrie diligently sought to recover Roscoe, and brought suit upon obtaining counsel.

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Catch Basin Overflow Causes Water Damage in Port Jervis

This was originally posted on the SGR Blog.

Was City Liable to Homeowner for Resulting Loss?

A “catch basin” maintains proper drainage and traps debris to prevent pipes downstream from becoming clogged. Solid waste settles to the bottom. And water drains out of the pipe. But was there liability when a city-maintained catch basin overflowed onto neighboring property?

Irene Klostermeier sued the City of Port Jervis to recover damages for trespassing and nuisance caused by water runoff onto her property. The complaint alleged that a storm drain on Klostermeier’s property, that the City of Port Jervis replaced in 2015, failed to properly drain storm water, causing water to pool at a catch basin at the end of her driveway and seep onto her property. The complaint also alleged that, while work on the storm drain was in progress, the City parked heavy machinery on Klostermeier’s driveway, which damaged the driveway.

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Sibling Challenges 1990 Lease by Parents to Son and Daughter-In-Law

This was originally posted on the SGR Bloog.

Was Photocopy of Lease Dispositive Evidence of Lost Original?

Many real property disputes arise out of written contracts, such as a lease. The “original” lease is the “best evidence” of the agreement. With the passage of time, the original document often cannot be found. As a recent case illustrates, the Court must then determine if what is propounded as a photocopy is an evidentiary substitute for the original.

Peter and Elizabeth Casanas, husband and wife, sued Carlei Group, LLC, alleging that in 1990, they executed a lease with the owner of the building located at 73 West 82nd Street, in New York County, for apartment 3C/3W, in which they resided. And sought a declaration of their rights as lessees.

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Does “Active Concealment” Trump “Caveat Emptor”?

This was originally published on the SGR Blog.

Did Seller Hide Defect in House from Buyer/Inspector?

It is a customary practice for a homebuyer to personally—or through a professional—inspect the residence either before a contract is signed or the transfer of title takes place. And New York is a “real property (caveat emptor) buyer beware” jurisdiction when it comes to such inspections. But what is a Court to do when the buyer discovers defects after the sale closed and claims that the conditions were deliberately concealed by the seller?

In a small claims action, Alexandra Daquila-Imbruglia sought to recover $10,000 from Universal Building Solutions Corp., its principal, Christopher Reno, and Our Island Real Estate, Inc., based on the alleged concealment of a defect in a house that she and her husband purchased.

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Pedestrian Trips and Falls On Raised Sidewalk Near Overgrown Tree in Queens:

This was originally published on the SGR Blog.

Court Navigates Administrative Code: Was City Negligent/ Liable for Injury?

Commentators will probably disagree on whether or not the rules and exceptions of the New York City Administrative Code are as (or more) complicated and difficult to navigate than the United States Code, in general, or the Internal Revenue Code, in particular. But, as a recent case illustrates, the labyrinthine Administrative Code arguably gives its convoluted Federal counterparts a run for the money.

On March 5, 2017, Konstantinos Gallis allegedly was injured when he tripped and fell on an uneven or raised condition of a sidewalk that abutted property in Queens owned by 23-21 33 Road, LLC. The accident occurred on a part of the sidewalk that was near a tree. Gallis filed a personal injury action against the LLC and the City of New York. The LLC failed to answer the complaint and Gallis was granted leave to enter a default judgment against the LLC. Gallis then moved for summary judgment on the issue of liability against the City. Contending that the City negligently maintained the tree near the accident site, thereby allowing the tree roots to grow and lift the sidewalk, creating a dangerous condition. Supreme Court denied the motion. Gallis appealed.

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Jesup Avenue Contract Dispute Faces Legal Analysis:

This was originally posted on the SGR Blog.

Did Questions of Fact Preclude Summary Judgment?

Our Courts often face cross-motions for summary judgment by both parties to a dispute with each claiming that the material facts are not in dispute and they are entitled to judgment as a matter of law. As a recent case illustrates, that scenario may lead to neither of the parties being granted the relief sought because the Court nevertheless finds irreconcilable questions of material fact that preclude judgment as a matter of law.

Abuacar Jawara and Aicha Triore alleged that, in May 2018, Benedict Araka agreed to sell them the premises he owned at 1536 Jesup Avenue in the Bronx. Pursuant to that agreement, they tendered a $10,000 deposit to Araka’s attorney. But Araka refused to deliver the deed to the Jesup Avenue property. So they sued for specific performance and also interposed a claim for money damages, which they alleged resulted from having to extend their mortgage commitment and in reapplying for a new mortgage. And also sought $7,500 in legal fees. The parties cross-moved for summary judgment.

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Mom Alleged Son Was Bullied and Taunted at Junior Tennis Matches/Academies:

This was originally posted on the SGR Blog.

Was There Liability for Defamation? Or Was Communication Privileged?

A mother believed her son was bullied and harassed by another participant at junior tennis lessons, training and events, and sent email to the sports’ governing body. As a recent case illustrates, the Court was called upon to determine if that communication was defamatory or privileged.

Melani Weitz reported, via email, to a United States Tennis Association official that her son, Daniel, was being bullied by Matthew Porges at USTA junior tennis tournaments and other tennis programs and events. The bullying ranged from offensive name-calling to physically menacing behavior, and it caused Weitz to fear for her son’s safety. Porges “[couldn’t] understand,” she wrote, “how a child like [Porges was] allowed to continue to compete or even be associated with the USTA.” The email also noted that Porges had been “kicked out” of two tennis facilities and instruction programs on Long Island. Litigation ensued.

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Judge Doubts Accuracy of Divergent Testimony by Both Sides:

This was originally posted on the SGR Blog.

Would the Court Nevertheless Resolve the Discrepancies?

The resolution of a case often is a matter of weighing the credibility of witnesses by the trier of fact (judge or jury). But what is a Judge to do when the testimony of all of the competing witnesses raises questions of accuracy and credibility?

As prologue the Court stated: “This case involves a confused tale. The witnesses’ testimonies diverged significantly. The court was not satisfied that any of the three main witnesses’ testimonies were completely accurate. Moreover, the parties presented fuzzy dates rather than exact ones. So, the recitation of the facts…below implicitly resolves the numerous discrepancies in the testimony. These findings of facts are based upon the credible evidence and the fair inferences made therefrom.”

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Member Injured During 300 Pound Tire Flip at Cobalt Fitness:

This was originally posted on the SGR Blog.

Was Injury Claim Precluded by Pre-Accident Waiver and Release?

Upon joining a health club, gym or fitness center, new members are regularly and routinely required to sign a waiver or release that exempts the owner/operator from liability for accident or injury claims by the members. But is such exculpation available where a member participates in a 300 pound tire flip class?

Andrew Dinkel IV was injured on February 23, 2017, when he was struck by a truck tire being flipped during an exercise class conducted at Cobalt Fitness, LLC. His back was to the tire that was flipped by two other participants in the class, and the tire, weighing approximately three hundred pounds (300 lbs.) or more, landed on the back and side of Dinkel’s left leg. He ultimately required surgery to repair his left foot/ankle and he remained unable to work on light duty until September 2017. Dinkel returned to full duty as a firefighter in February 2018. He alleged that Cobalt was negligent in failing to: properly organize the tire flip activity in a safe manner; properly organize the members performing the activity; to warn users of the tires about the dangers associated with flipping tires in close proximity to one another; and in failing to have more instructors present to properly supervise and guide the members in proper performance of the tire flip activity.

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