Category Archives: New York Law

Altercation with Acquaintance: Man Strikes Small Dog with a Broomstick

This was originally posted on the SGR Blog.

Was Prosecution Barred by “Choice of Evils” Justification Defense?

Luis Jimenez was indicted on several counts for striking and severely injuring a small dog with a broomstick. Jimenez argued that the indictment should be dismissed because the prosecutor did not charge the grand jury on justification under Penal Law § 35.05(2), the “choice of evils” defense. Was that instruction warranted under the circumstances of the case?

Jimenez was charged with second-degree criminal mischief under Penal Law § 145.10, aggravated cruelty to animals under Agriculture and Markets Law § 353-a, and Overdriving, Torturing, or Injuring an Animal under Agriculture and Markets Law § 353. He testified before the grand jury that J., a former acquaintance, confronted him on a sidewalk and demanded that he repay a $20 debt. When Jimenez refused, J. left and then quickly returned with two metal rods, one in each hand, and threatened to kill him if he did not pay. Jimenez picked up a broom and broke it in half to defend himself as J.’s mother and uncle appeared on the scene. At his mother’s urging, J. turned and began walking away while the uncle began “tussling” with Jimenez, attempting to disarm him of the broom handle. As Jimenez was engaged with the uncle, Gigi—a small dog who was in the mother’s care—ran up to him and started biting at his pant leg. While still physically engaged with the uncle, Jimenez swung the broom handle and hit Gigi.

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Every Dog Is Entitled to One Bite

This was originally published on the SGR Blog.

Did “O’Malley” Already Have One or Two?

Amy C. Farrell alleged that she was injured by O’Malley, a vicious dog belonging to Peter M. Boushie. Amy’s husband, Kevin L. Ladue, alleged that he was deprived of his wife’s services, society, and companionship as a result of her injuries. After discovery, Farrell and Ladue moved for summary judgment.

New York’s courts have long recognized that the owner of a dog who either knows or should have known of that animal’s vicious propensities will be held liable for the harm the animal causes as a result of those propensities. Liability in such cases is absolute. It is not dependent upon proof of negligence on the part of the dog’s owner.

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Yorktown Heights Property Adjacent to ATV Trail Advertised by Owner as Quiet

This was originally posted on the SGR Blog.

Did Buyer Have Cognizable Fraud and Other Claims Against Sellers and Brokers?

Michael Vella purchased real property located at 2 Dellworth Drive, Yorktown Heights, New York, from Michael E. Straub and Erin L. Cummings Straub pursuant to a contract of sale dated July 9, 2018. The property was located next to several acres of state owned land.

The Straubs retained Coldwell Banker Real Estate LLC as their selling broker. Karen O’Connor executed the exclusive right to sell agreement on behalf of Coldwell.

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Pizza Deliveryman Pulled Over For Broken Headlight

This was originally posted on the SGR Blog.

Was Domino’s Liable For Officer’s Injury in Scuffle?

On June 9, 2016, Kevin R. Allum was employed by Domino’s Pizza, LLC and was delivering pizza in Brooklyn. At about 1:00 a.m., New York City Police Department Officer Benjamin Maldonado pulled over Allum’s vehicle and cited him for a defective headlight. During the course of the traffic stop, Allum allegedly kicked his feet, flailed his arms, and resisted arrest. Maldonado forcibly removed Allum from the vehicle and both Maldonado and Allum fell to the ground.

Maldonado sued Alum and Domino’s to recover damages for personal injuries. Domino’s subsequently moved for summary judgment dismissing the complaint, contending that Allum was acting outside the scope of his employment at the time of the incident, and that Domino’s did not know, or have reason to know, that Allum would engage in a struggle with a law enforcement officer. Maldonado opposed the motion, contending that there were issues of fact regarding whether Allum was acting outside the scope of his employment at the time of the incident. The Supreme Court denied the motion. Domino’s appealed.

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User Sought to Quash Subpoena to Facebook for Account Information

This was originally posted on the SGR Blog.

Court Determines if Data Sought Was (or Was Not) Protected by Law

Facebook User fakespeare999 A/K/A hurtfulsloth (defendant in this action) moved the Court for an order quashing the non-party subpoena duces tecum issued by Jane Doe (plaintiff in this suit) seeking all documents, including IP addresses and login information, concerning User’s Facebook accounts, on the grounds that the subpoena was facially defective and improper under the Stored Communications Act and that service upon User was improper.

User claimed the subpoena sought disclosure of information that was prohibited by the SCA and was overly broad in its reach of “all documents.” User further claimed he was not directly served regarding the disclosure of his information. Instead, the subpoena was served upon Facebook, rendering service improper due to lack of notice.

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Police Car Strikes Bike Rider at Islip Intersection

This was originally published on the SGR Blog.

Did County, PD, and Officer Have a Defense?

Ramon Antonio Ramos sued the County of Suffolk, the Suffolk County Police Department, and Police Officer Christopher Vitale to recover for personal injuries he allegedly sustained as a result of a motor vehicle-bicycle accident.

The accident allegedly occurred on December 18, 2017, at approximately 4:18 p.m., in the marked crosswalk at the intersection of Third Avenue and Union Boulevard in Islip, New York, when a SCPD vehicle, operated by Vitale, attempted to make a left turn from westbound Union Boulevard onto southbound Third Avenue. The vehicle struck Ramos’ bicycle, which was traveling eastbound on Union Boulevard in a marked crosswalk.

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Coop Tenant Claims Fans on Roof Targeted Her West End Ave Apartment

This was originally published on the SGR Blog.

Court Adjudicates Panoply of Claims, Counterclaims, and Defenses

Martha Schwartz alleged that 170 West End Owners Corp illegally installed and/or manipulated industrial fans on the roof of the building directly above her apartment. Schwartz was a tenant in apartment 30E at the building, a cooperative governed by Owners Corp.

Schwartz alleged that in 2009 Owners Corp. relocated a certain number of industrial fans directly above and/or near her top-floor apartment, in an attempt to force her out of the building. She alleged that in 2012 Owners Corp. manipulated the fans to direct polluted and freezing air into her apartment, and testified that she witnessed the fans in different locations by visiting the roof on various occasions both before and after 2009. Schwartz alleged that the relocation and manipulation of the fans caused excessive noise, vibrations, and odors in her apartment which continued and that her health declined as a result of these conditions.

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Owner Brings Powerboat to Suff. Co. Marina For Engine Repair

This was originally published on the SGR Blog.

Would Excessive Garagekeeper’s Lien Trigger Conversion Claim

Peter May sued Steve’s Marine Service West, Inc. and its principal, Steven Stavracos, in a dispute arising out of services performed on the engines of his boat.

In April 2013, May brought the vessel to the Steve’s Marine boatyard to be repaired because it was not reaching maximum speed; the engine, which should have been performing at 3,600 or 3,800 revolutions per minute (rpm), was performing at 2,600 rpm. The parties offered differing versions of their agreement. According to May, Steve’s Marine guaranteed that repairs and adjustments to two components, the riser and the turbocharge, would fix the problem.

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Proprietary Lease Did Not Give Unit Owner Exclusive Right to Parking Space

This was originally published on the SGR Blog.

Did Coop’s Course of Conduct Effectively Grant Such Exclusivity?

Sara Baer asserted causes of action for a declaratory judgment, breach of contract, and trespass to chattel, and sought a permanent injunction against 825 Ocean Corp. She alleged in her complaint that she was the proprietary lessee and holder of cooperative shares for unit 2D at 930 East 7th Street in Brooklyn. In 2004, when she purchased those shares, she was told that a parking space was provided, which was ancillary to the premises. She further alleged that the parking space was provided for in the proprietary lease and that her decision to purchase shares within the building was based upon her right of continuing use of the parking space. She contended that, on or around February 2011, Ocean Corp. sought to allow another person to use, and sought to keep her, from continuing to use the parking space.

Ocean Corp. moved for an order granting summary judgment and dismissing the complaint, and contended that the complaint should be dismissed as Baer’s causes of action were all premised on the claim that she had possessory right and interest in the parking space because, as a non-resident shareholder, pursuant to the Ocean Corp.’s policy regarding the use and distribution of parking spaces, Baer was not entitled to utilize a parking space. Since Baer did not reside in the apartment, she was not entitled to use of the parking space.

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Cricketer Injured on NYC Tennis Court

This was originally published on the SGR Blog.

Did Player Assume Risk of Hole in Asphalt Surface?

New York City parks are regularly and foreseeably used by recreational players in various sports—who assume the concomitant risks of those activities. But do those participants assume the risk of a defect in the playing surface?

On August 9, 2015, Parand Maharaj allegedly was injured when he fell while playing cricket on the tennis courts at New York City’s Lincoln Terrace/Arthur S. Somers Park in Brooklyn. He alleged that he tripped over a two-to-four-inch deep hole that was concealed inside a long crack, which was approximately seven feet long and between three to eight inches wide, in the asphalt playing surface. Maharaj sued the City to recover damages for personal injuries. After discovery, the City’s moved for summary judgment dismissing the complaint on the ground that Maharaj assumed the risk of his injuries. The Supreme Court granted the motion. Maharaj appealed.

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