Category Archives: Litigation

Herkimer Hot Water Heater Hubbub

This was originally published on the SGR Blog.

Trial Court Decides Liability for Damages

Terrence M. Kalka filed suit in the City Court of Little Falls, Herkimer County, on August 18, 2021, seeking $4,975 in damages against Ronald Schorer and John Lerch. Schorer filed a counterclaim against Kalka on October 5, 2021 seeking $2,172 pursuant to a contract. The matter proceeded to trial on March 17, 2022 and was concluded on April 8, 2022.

Kalka and his spouse appeared and testified that he retained the services of Schorer/Lerch to replace the hot water heater and install a water softener. They negligently installed the heater causing damage to the plumbing, as well as water damage in the basement. The testimony was that the water was leaking from the main line for over an hour which flooded the basement causing damage to stored items in the basement, such as the Kalka’s clothing. Kalka testified that Schorer/Lerch damaged a sink in the basement and dirty water in the pipes clogged the kitchen sink, toilet, and washer as a result of negligently installing a hot water heater and water softener. Kalka testified that Schorer was present during that time, stayed upstairs, and was consulted periodically by Lerch about how to handle various situations that came up during the course of the work. The testimony was also that Schorer was present as the Village of Ilion repaired the water valve.

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Unkechaugh Indians Seek to Enjoin Criminal Activity at Smoke Shop on Poospatuck Reservation

This was originally published on the SGR Blog.

Court Decides if Tribal Nation Entitled to Preliminary Injunction Under NYS Indian Law

The Unkechaug Indian Nation sued the operators of the Indian Creek Smoke Shop for contravention of the Indian Nation Tribal Council’s resolution to permanently ban the Smoke Shop from doing business on the Poospatuck reservation. The reservation is the land of the Indian Nation and the members of the Nation reside there. It was undisputed that the Council brought the proceeding pursuant to its duly adopted resolution and its customs, rules, and regulations.

The complaint alleged that the operators initially were granted a license to construct the Smoke Shop, and that the Smoke Shop was not built in accordance with the conditions in the initial resolution so that construction was to cease pursuant to a Tribal Council resolution dated October 29, 2010. Those issues were resolved and the Smoke Shop construction was completed.

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Excavation Causes Neighboring Property to Bulge and Crack

This was originally published on the SGR Blog.

Was Insurance Claim Barred by “Earth Movement” Exclusion?

Commercial insurance policies often provide generic risk coverage, but that general coverage is often concurrently limited in scope by specific exclusions. As a recent case illustrates, the Court may be required to navigate the exclusions to determine if coverage liability exists.

Great American Insurance Company of New York issued a risk property insurance policy to 3502 Partners LLC, insuring property located at 35-02 Northern Blvd., Long Island City, New York-a two-story brick and mortar building with multiple commercial tenants, adjacent to and directly behind a piece of property owned and maintained by the Metropolitan Transit Authority, known as the Sunnyside Yard, a 180-acre railroad yard.

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Tow Line Tangle at Toggenburg

This was originally posted on the SGR Blog.

Was Ski Resort Liable for Injury?

Snow skiing presents inherent and foreseeable risks of injury on the slopes. But, as a recent case illustrates, the Court may have to determine if a mechanical failure, such as a faulty tow-line, was a risk that a skier inherently and foreseeably assumed.

Lauren Dowd-Dowd-Shedlock was a customer at Toggenburg Ski Center on January 24, 2014 with her three-year-old niece. She was assisting her niece on a beginner’s trail, which had a tow rope consisting of a rope pulling tow, with handles which hung perpendicular to the ground. As Dowd-Shedlock waited with her niece to be towed up the hill, a tow handle which had turned and was parallel to the ground struck her in the back of the knee. Dowd-Shedlock alleged that Toggenburg was negligent in failing to properly warn users of the tow rope and the associated dangers.

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Auctioneer Doubts Authenticity, Withdraws Cy Twombly Artwork and Seeks Return of $1.5M Advance

This was originally posted on the SGR Blog.

Did Owner Have Claim Over Against Third Parties for Triggering the Dispute?

Decisions often address claims by a defendant that the harm alleged by the plaintiff was caused by others—and result in so-called “third-party” claims for indemnification of contribution. As a recent case illustrates, the Court may be called upon to assess the viability of such claims.

In 2016 Pier Franco Grosso consigned to Phillips Auctioneers LLC artwork in exchange for an advance of $1.5 million. Grosso represented that the artwork was by the late artist Cy Twombly. Phillips estimated the work would sell for $2.5 million to $3.5 million. Under Paragraph 10(a) of the consignment agreement, Phillips was permitted to withdraw the work from sale if, in Phillips’ “sole judgment,”

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Gallery and Sculpture Dispute Ownership of Five Limited Edition Works

This was originally posted on the SGR Blog.

ourt Parses Agreements and Arts and Cultural Affairs Law

Clean Art Works, Inc. operated the Marianne Boesky Gallery and served as the gallery representative for Diana Al-Hadid until 2019. During that time, Art Works advanced funds, such as studio rent and fabrication, and framing and crating costs, to Al-Hadid to further her career.

In 2009, Al-Hadid created a bronze sculpture fabricated in a five piece limited edition. An undated contract between Al-Hadid and Graphicstudio stated that Graphicstudio would fabricate the sculptures, three of which were numbered as 1/3, 2/3 and 3/3 and two numbered as “Artist’s Proofs” AP 1/2 and AP 2/2. The project was initiated in September 2009 and completed in February 2011.

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Oral Agreement to Share Proceeds of Sale of Diamonds

This was originally posted on the SGR Blog.

Court Applies UCC and GOL Statutes of Fraud

One of the threshold issues in commercial disputes is often the characterization of the transaction and/or the relief sought. As a recent case involving various claims to the proceeds of the sale of a diamond based upon an alleged oral agreement illustrates, adjudication of the nature of the case may be dispositive when it comes to the defense of the statute of frauds.

Basal Trading and Sons Ltd. alleged an oral partnership agreement with M&G Diamonds, Inc. and Roman Malakov Diamonds, LLC. According to the complaint, the partnership interest was divided equally (50%-50%) between Basal and M&G/Malakov. The partnership owned a one-third interest in a non-party partnership, which owned three diamonds. Under the agreement, three of the parties contributed one half of one third, i.e., one sixth, of the purchase price of the diamonds, and were entitled to receive one half of one third, i.e., one sixth, of the proceeds arising from the sale of any and/or all of the diamonds.

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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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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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