Category Archives: Litigation

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.

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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.

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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.

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Rider Falls From Horse on County-Operated Amusement Park Carousel

Was County Liable For Injuries to70 Year Old With Pacemaker?

Dennis Cannizzaro and his wife sued Westchester County to recover damages for personal injuries he allegedly sustained after falling off the “Derby Racer,” an amusement park ride that is owned and operated by the County. The Derby Racer had been in operation since 1928, and was described as a fast-moving carousel with wooden horses that move up and down as the ride spins around a stationary center console. Riders were instructed to place their feet into stirrups located on each side of the wooden horse and to lean to the left, towards the center console, so as to counteract the centrifugal force created as the ride spinned. Each horse was also equipped with a metal handlebar for the rider to hold. Cannizzaro, who was 70 years old at the time of the accident and had a pacemaker, testified at his deposition that he had ridden the Derby Racer on at least two prior occasions before the day of the accident without incident, but that on that day he was unable to hold himself on the wooden horse he had chosen and was “thrown” to the right onto the walkway that surrounds the Derby Racer when the ride reached “full speed.”

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Biker Injured Riding Off Elevated Boardwalk Without Guardrails

Was Village of Saltaire  Liable For Injuries From Fall?

Marcia Ferruzzi sued to recover damages for personal injuries she allegedly sustained when she rode a bicycle off an elevated boardwalk located in the Village of Saltaire and fell to the ground below. The boardwalk, which was reconstructed between 2014 and 2015 in the wake of Hurricane Sandy, runs north to south from the bay to the ocean, and is approximately 2,100 feet long and 14 feet wide. Mario Posillico, the Village administrator and Village clerk, testified at his deposition that the boardwalk was constructed level, but the height differential between the boardwalk and the ground varied approximately 10 to 23 inches in certain locations due to the terrain. There were no guardrails along the sides of the boardwalk.

Ferruzzi testified at her deposition that, on the date of the accident, she and her then-boyfriend were riding bicycles on the boardwalk. Ferruzzi knew the boardwalk was elevated and the visibility that day was clear. They eventually came upon a firehouse, where they stopped so that her boyfriend could put air in the tires of his bicycle. Ferruzzi and her boyfriend then continued riding their bicycles along the boardwalk. A few minutes later, Ferruzzi rode her bicycle off the boardwalk. She explained that, as she was riding her bicycle, she was periodically looking to see if there was anyone next to her and, after glancing to her left, “the next thing I know I was going straight off.” Ferruzzi testified that, from the area of the firehouse to the location of the accident, the boardwalk was level and her bicycle did not hit anything that caused her to ride off the boardwalk.

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Well Pump and System Installed On Neighbor’s Land

Installer and Owner Sue Each Other for Damage

Amber Well Drilling, LLC sued Robert Diegelman for breach of contract and sought the unpaid balance for services in connection with the parties’ contract providing for the installation by Amber of a new well and pump system on Diegelman’s property. Diegelman answered and asserted a counterclaim alleging that the well was actually installed on his neighbors’ property and that, as a result, he was required to purchase the parcel containing the well from his neighbors. The counterclaim sought reimbursement for the money spent by Diegelman for the purchase of that parcel.

The evidence presented at the bench trial in this case established that, although Diegelman provided Amber with a survey of his property, the parties never met to discuss the exact location where the well would be installed, nor did the contract specify the exact location where the well would be installed. Diegelman made two payments to Amber for its services, but after purchasing the parcel containing the well from his neighbors, declined to make full payment to Amber. Following the bench trial, Supreme Court awarded Diegelman $1,456.00, which the court determined was the difference between the cost to him of buying the land where the well was installed, i.e., $6,975.00, and the amount due to Amber under the contract, i.e., $5,549.00. Amber appealed.

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Broker Sues Owner For Commission on Babylon Property Sale

Court Decides If Broker Was Procuring Cause of Transaction

Dalbir Singh purchased real property located in Babylon after signing a sales agreement for the property prepared and executed by R. Matthew Shane, a real estate broker employed by All Island Estates Realty Corp., a real estate brokerage firm. The sales agreement provided that the commission due to ERC was $50,000 “from buyer.” After Singh failed to pay the commission, ERC sued Singh. After a nonjury trial,  Supreme Court rendered a verdict in favor of the ERC and a judgment was entered against Singh in the total sum of $50,910.21. Singh appealed.

To prevail on a cause of action to recover a commission, the broker must establish (1) that it is duly licensed, (2) that it had a contract, express or implied, with the party to be charged with paying the commission, and (3) that it was the procuring cause of the sale. Where the broker is not involved in the negotiations leading up to the completion of the deal, the broker must establish that it created an amicable atmosphere in which negotiations proceeded or that it generated a chain of circumstances that proximately led to the sale.

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Commercial Tenant Sues After Coop Board Rejects Installation of Outdoor HVAC

Did Board Unreasonably Withold Consent/ Breach Fiduciary Duty?

Heykal Properties, LLC, a commercial tenant of Unit 2S in a commercial cooperative building, assert causes of action against the board of 450 West 31St. Owners Corp. and board member Karen Atta for breach of fiduciary duty in rejecting Heykal’s’ proposals to install an HVAC on an outdoor space adjacent to the leased unit. The motion by the board and Atta for summary judgment was denied. And they appealed.

The proprietary lease provided that, to make alterations to a unit, a lessee must first obtain the written consent of the lessor, “which consent shall not be unreasonably withheld.” Where a “reasonableness” standard is imposed, the actions of the board and its members must be legitimately related to the welfare of the cooperative. The board contended that Heykal’s alteration plans were reasonably rejected because the plans sought to use a common element of the building for the tenant’s own exclusive use, and there were concerns about whether the space was structurally sound for the proposed alterations. The board moved for summary judgment..

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18 Year Old Driver Dies Driving Lamborghini

Was Owner Liable to Estate for Negligent Entrustment?

            Samuel Shepard, who was 18 years old and had a driver’s license at the time, and his brother, Frank Shepard, saw the 2010 Lamborghini of Michael Power in the parking lot of a bar in Suffolk County. Upon exiting the bar, Power saw Samuel and Frank, both of whom he knew previously, admiring the Lamborghini. Thereafter, Power permitted Frank and then Samuel to drive the Lamborghini while Power was a passenger. While Samuel was driving, he lost control of the Lamborghini, which hit a guardrail, causing him to be ejected from the Lamborghini and to sustain injuries from which he ultimately died.

Maria Shepard, Samuel’s mother, filed a lawsuit against Power asserting causes of action alleging negligence, negligent entrustment, vicarious liability predicated on Vehicle and Traffic Law § 388, and wrongful death. Power moved to dismiss the third cause of action alleging vicarious liability predicated on VTL§ 388.  Supreme Court denied the motion and, in a prior appeal, the Court reversed so much of Supreme Court’s order as denied Power’s motion, holding that VTL § 388 did not permit a negligent driver, or the driver’s estate, to recover damages against the owner of a vehicle who permitted another to drive the vehicle for injuries resulting from the driver’s own negligence.

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Newhouse “Bucked” Off Horse While Riding at Chase Meadow

Who Was Liable to Newhouse For Her Equestrian- Related Injuries?

Stephanie Kelly-Newhouse sued Chase Meadows Farm, LLC, Martini & Associates LLC and Rhianon LLC for damages for personal injuries she sustained  while riding her horse in an outside ring on the equestrian facility owned by Chase Meadows and leased to Rhiannon, with which she boarded her horse. Newhouse alleged that she fell off her horse, which was allegedly spooked by objects allegedly being thrown off a building owned by Chase Meadows on which Martini was allegedly performing work.  All of the defendants made motions for summary judgment dismissing the complaint.

In support of its motion, Martini offered the deposition testimonies of the parties. Newhouse testified that she was boarding one of her horses at Chase Meadows for about a month prior to the accident. Rhiannon was running the equestrian program at Chase Meadows. While she was riding the horse in the ring, an unknown roofer that she could not identify, purportedly threw building debris off the roof while she was on the horse, which made a very loud sound, causing the horse to be startled and to leap sideways.

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