Category Archives: New York Law

Smith/Hodge Relationship Ends With Dispute of $50,000 Claim

Appeals Court Reviews Conflicting  Versions of Facts

Keisha Smith sued to recover $50,000 from Holly Dodge. The evidence adduced at a nonjury trial showed that the parties were in a relationship for a year and at half, had lived together, and were once engaged. In January 2021, Smith provided Hodge with $50,000 for a laundromat which Hodge claimed she was planning to open. Nothing was ever put into writing regarding the venture, and Hodge testified that the venture subsequently “fell through.” And Hodge also testified that Smith was not entitled to the return of $50,000 since Hodge had used the money to renovate Smith’s house, which included a pool, and numerous repairs and upgrades to the house, had purchased furniture and appliances for the house, and had purchased other miscellaneous items on Smith’s behalf. Hodge provided credit card and bank statements and receipts in support of her claims. Smith testified that furniture was purchased for her house and that she gave Hodge cash to use for household needs which included the renovation of her house.

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Property Owner Fences Around Shed on Neighbor’s Land

Had Title to Enclosed Realty Been Acquired by Adverse Possession?.

Hongwei Guan and EZC Carolina LLC owned their two residences on adjoining parcels in the City of Ithaca, Tompkins County. In 2006, Guan became the titled owners of the western parcel and began using a shed that was fully located to the east of their boundary line. In 2021, EZC  became the titled owner of the eastern parcel and subsequently constructed a fence along the boundary line — resultantly enclosing the shed within EZC’s parcel.

Guan commenced an action seeking, among other things, to permanently enjoin EZC from maintaining the fence that prevented access to the shed, claiming to be the fee owner of the disputed area through adverse possession. After issue was joined and before the completion of discovery, Guan moved for partial summary judgment on the cause of action for a permanent injunction, which was opposed by EZC.  Supreme Court denied the motion in its entirety. Guan appealed.

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Property Owner Sued to Recover $450 Cost of Snowplowing Shared Private Driveway

Appeals Followed Small Claims Judgment In Favor of Neighbors

Silvio Bet commenced a small claims action seeking $112.50 each from Wayne Geriak Elizabeth Manning as their pro rata shares of a $450 plowing expense for a shared private roadway. After a trial, the Justice Court of the Town of Lake Pleasant found in favor of  Geriak and Manning because there was no prior agreement between the parties to share plowing costs for the driveway. Bet appealed. County Court affirmed.  Bet appealed to the Appellate Division..

Appellate review of small claims matters is limited to determining whether ‘substantial justice has been done between the parties according to the rules and principles of substantive law. Only a clearly erroneous determination will be overturned.

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Attorney Loses Contact With Client Who May (Not) Be Deceased

May Court Entertain Application to Withdraw As Counsel?

Chernyy Law Office, P.C.  submitted a proposed order to show cause to bring on a motion for leave to withdraw as attorney for plaintiff, Rose Edwards. The affirmation in support of Borislav Chernyy, Esq., alleged that the underlying action was for money damages to compensate Edwards and others for injuries sustained in a motor vehicle accident on February 23, 2018. He alleged further:

6. The last time your affiant had contact with the Plaintiff, ROSE EDWARDS, was by telephone on July 19, 2021. Since July 2021, your affiant underwent multiple attempts to contact the Plaintiff, ROSE EDWARDS, but your affiant’s office has not been able to reach the Plaintiff. Upon information and belief your affiant was informed that Plaintiff, ROSE EDWARDS, passed away. Your affiant does not have any knowledge regarding Plaintiff’s, ROSE EDWARDS, date of death and place of death because said information was obtained from his friends. Your affiant’s investigator conducted an investigation in order to obtain Plaintiff’s, ROSE EDWARDS, death certificate or Plaintiff’s, ROSE EDWARDS, location of death but he has not been able to locate a death certificate and the location of death for Plaintiff, ROSE EDWARDS, or verify that in fact Plaintiff, ROSE EDWARDS, passed away.

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In 2020 Residential Coop Unit Owners Challenge 2013/17 Sublet Rule Changes

Were Breach of Contract & BCL Claims Barred by Statute of Limitations?

Alison Fricke and others  were shareholders in Beauchamp Gardens Owners Corp., a cooperative corporation, and the owners of separate apartments in the cooperative complex. On February 17, 2020, they commenced an action alleging that BGOC  breached its contract with them and violated Business Corporation Law § 720 by enacting certain sublet policies which limited the number of years shareholders could sublet their apartments and imposed an annual sublet fee. The challenged policies became effective on January 1, 2013, and January 1, 2017.

BGOC subsequently moved to dismiss the causes of action alleging breach of contract and violation of Business Corporation Law § 720 as time-barred. Supreme Court granted those branches of the motion. Fricke and the others appealed

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Heirs Sought Pre-Action Discovery From Gallery of Identity of Purchaser of Painting by Tiepolo

Court Determines If Claimants Were Entitled to Such Extraordinary Relief

Mordechai Avni, Oded Avni and Michaela Iro demanded that Sotheby’s return a painting by Giovanni Battista Tiepolo. They claimed they were all lawful heirs of Dr. Otto and Lili Fröhlich, who owned the painting prior to World War II. The Avnis asserted that the Nazis stole the painting and they filed a petition  for pre-action discovery of the individual who acquired the painting from Sotheby’s after an auction. The Avnis contended that Sotheby’s was the last known possessor of the painting and that it was put up for sale at public auction in New York on May 22, 2019.  

The Avnis detailed that the Fröhlichs resided in Austria and ran an art gallery there before they were forced to flee in 1938 and left for London. They explained that, during the late 1930s, the Nazis forbade Jews from engaging in any business activities and forced them to sell assets, often at below-market prices for the benefit of non-Jewish sellers and buyers, as well as the Nazi government. In many of those deals, the Jewish owner received nothing.

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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. 

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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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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 NextDoor.com. 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.

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