Category Archives: Litigation

Schiele Portrait of Wife Title Dispute Meets the Doctrine of “Tax Estoppel”

This was originally posted on the SGR Blog.

Was New York Rule of Evidence Dispositive of Ownership of Austrian Painting?

Our news media regularly report on disputed claims to artwork taken during World War II. But, as a recent case illustrates, the passage of time and the crossing of national borders implicate many procedural and evidentiary rules that are unrelated to a particular painting’s provenance or country of origin.

In 1917, Austrian artist Egon Schiele made a portrait of his wife Edith. In 1964, the artwork was bought by art collector Robert Lehman, Sr. from an exhibition at an art gallery in London, England. And, later that year, Lehman, Sr. gifted the artwork to his son, Robert Owen Robin Lehman. In 2016, Robin gifted the artwork to the Robert Owen Lehman Fund, Inc., his eponymous foundation. After the Fund consigned the artwork to Christie’s for auction, two groups asserted competing claims of ownership of the artwork, alleging that the artwork left the possession of its rightful owner during the Holocaust. Israelitische Kultusgemeinde Wien represented the Susan Zirkl Memorial Foundation Trust, which claimed ownership of the artwork as an heir of Karl Maylander. Robert Rieger Trust and Michael Bar claimed ownership as heirs of Heinrich Rieger.

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Kayaking Guest Drowns Near Hadley Dam: Was VBRO Host Liable to Estate?

This was originally posted on the SGR Blog.

Timothy Tang, as Administrator of the estate of Jonathan Tang, sued Jevon Damadian for damages after his brother’s death while, as a paying guest, using Damadian’s kayak on nearby water. Tang asserted causes of action for negligence, violation of the Navigation Law, and wrongful death. Did Timothy assert legally cognizable and viable claims against Damadian?

Damadian owned a home in Hadley, New York, on 112 acres and across the road from a lake called Stewart’s Reservoir. The property itself had no direct lake access. Damadian rented the home to Tyler Vestel and several of Vestel’s friends for the weekend of September 20, 2014. He advertised the property for rent on VRBO. The listing described the property as a 7 Bedroom, 3 ½ Bathroom home. And also stated that Stewart Reservoir was across the street from the property and that a canoe and two kayaks were available for use. Stewart Reservoir is owned by Niagara Mohawk, and there was a dam on both ends of the lake. Damadian claimed to have been out on the reservoir hundreds of times and had boated around the entire body of water.

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Upper West Side Penthouse/Wine Room Wrangle: Improper Cooler Selected for Vintage Italian Artisanal Wines?

This was originally posted on the SGR Blog.

The COVID-19 pandemic has fomented lawsuits relating to frustration/impossibility of performance, taking of property by Executive Order, and insurance coverage for casualty losses. But our Courts must still hear and determine less consequential, non-recurring fact-specific disputes. And, as a recent case illustrates, what would appear to be rather banal to some is “essential” to others.

Ellen Mathias and Enrico Dealessandrini brought suit arising from their almost $1m renovation of PH-2B at 200 Riverside Drive–more $800K under a construction contract; in excess of $156K in change orders; and over $32K in direct payments to subcontractors.

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A Sidewalk Shed Meets the Pandemic on West 99th Street: Did Construction and Delay Constitute a Trespass?

This was originally posted on the SGR Blog.

Construction in New York City often leads to the long-term installation of façade scaffolding and sidewalk sheds that interfere with access to street-level commercial properties. Needless to say, as a recent case illustrates, scaffolding and a sidewalk shed are combustible ingredients for litigation, especially where the pandemic delays the completion of construction.

Steven and Shulie Kirschner are shareholders in a co-op located at 233 West 99th Street in Manhattan. They have a proprietary lease for the commercial space located on the ground floor of the co-op. The Kirschners claimed that the Board erected a sidewalk shed on August 31, 2019, in front of their space without their permission. They complained that the sidewalk shed continued to obstruct their business.

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New York Court of Appeals Update (February 2021) #2

This was originally published on the SGR Blog.

Was Grandparent Member of  Grandchild’s Immediate Family?

Answer Dispositive of Bystander “Zone of Danger” Claim

The question presented: may a grandparent, who was in close proximity to her grandchild at the time of the death-producing accident, pursue a claim for bystander recovery under a “zone of danger” theory?

The “zone of danger” rule to “allow[s] one who is . . . threatened with bodily harm in consequence of the defendant’s negligence to recover for emotional distress” flowing only from the “viewing [of] the death or serious physical injury of a member of [that person’s] immediate family”. Unsettled were “the outer limits” of the phrase “immediate family”. The Court of Appeals was not asked to fix permanent boundaries of the “immediate family.” Instead, the Court was simply to determine whether a grandchild may come within the limits of her grandparent’s “immediate family,” as that phrase is used in zone of danger jurisprudence.

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New York Court of Appeals Update (February 2021)

This was originally published on the SGR Blog.

Was “Mike” Bloomberg  Personally Liable For Alleged Transgressions of Supervisor at His Eponymous Firm?

Court of Appeals Addresses Question of  Owner/Leaders Vicarious Liability Under NYC Human Rights Law

GARCIA,  J. :

An employee of Bloomberg L.P., using the pseudonym “Margaret Doe,” sued Bloomberg L.P., her supervisor Nicholas Ferris, and Michael Bloomberg, asserting several causes of action arising from alleged discrimination, sexual harassment, and sexual abuse. The question before the Court of Appeals was whether Bloomberg, in addition to Bloomberg L.P., could be held vicariously liable as an employer under the New York City Human Rights Law based on his status as “owner” and officer of the company. Was Bloomberg an “employer” within the meaning of the City HRL, and could Bloomberg be held vicariously liable for Ferris’s offending conduct.

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Hit by Falling Towel Dispenser – Res Ipsa Loquitur: “The Thing Speaks for Itself”

This was originally published on the SGR Blog.

Res ipsa loquitur is the Latin phrase describing a legal doctrine that infers negligence from the very nature of an accident or injury in the absence of any behavior or activity by the aggrieved person.

In most negligence cases, the plaintiff must establish a duty of care, breach of that duty, causation, and injury. But under res ipsa loquitur, the first three elements are inferred from an injury that does not ordinarily occur without negligence. 

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New York Court of Appeals Update (December 2020)

This was originally posted on the SGR blog.

Court Nixes Grossly Disproportionate Liquidated Damages:

Landlord Not Entitled to $1M+ for Tenant Default of $175K

The Court of Appeals recently considered the enforceability of a liquidated damages provision in a commercial lease Surrender Agreement between  Columbia University, one of the City’s premier universities, and D’Agostino Supermarkets, a family-owned food market chain founded in 1932. As a general matter, parties are free to agree to a liquidated damages clause provided that the clause is neither unconscionable nor contrary to public policy.

But were the damages sought by Columbia grossly disproportionate to the amount due from D’Agostino upon full performance of the Surrender Agreement? Supreme Court and the Appellate Division struck the provision as an unenforceable penalty in contravention of public policy. D’Agostino appealed.

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New York Court of Appeals (Dec. 2020)

This was originally posted on the SGR Blog.

“Murder (He) Wrote”

Did that Suffice for a Conviction?

An incarcerated felon asked an inmate in an adjacent cell (whose was days away from release and whose girlfriend faced eviction from her apartment) to kill his wife and mother-in-law and kidnap his children (after he left prison)– in return for which he would be given a house. Detailed written and verbal  information and instructions followed; but the neighboring cellmate informed the authorities and the crime never took place.  Was the felon guilty of attempted murder?

Feinman, J. (for the Court)

A person is guilty of an attempt to commit a crime if the person’s conduct comes “dangerously close” to committing the intended crime. In a recent case, the Court of Appeals examined whether the evidence in a case was in/sufficient to support convictions for attempted murder in the first and second degrees. Did the defendant and his feigned confederate take any actual step toward accomplishing defendant’s plan to kill his wife and mother-in-law beyond mere conversations and planning?. irm.

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Intoxicated Teen/Trespasser Injured on Construction Site at 3 A.M.: Are the Owner/Developer/General Contractor Liable?

This was originally published on the SGR Blog.

If a young adult engages in an athletic competition, and is injured while playing, there may be a defense to third-party liability based upon the doctrine of “assumption of risk”. So does that defense protect a property owner where a person drinks to the point of intoxication; trespasses on a construction site; and is injured in a fall?

In July 2015, Michael Desroches and his friend, Daniel O’Grady, visited Daniel O’Grady’s brother, Ryan O’Grady, who resided in the Timber Creek subdivision in the Town of Ballston Spa, Saratoga County. The group socialized throughout the evening and consumed alcoholic beverages. After midnight, they went for a walk in the neighborhood and eventually decided to enter one of the houses still under construction. When Daniel O’Grady entered the house, followed by Desroches and Ryan O’Grady, he saw an opening in the floor that was located between 10 to 15 feet from the entrance and stepped to the side. But Desroches proceeded forward and fell through the opening approximately 8 or 10 feet into an unfinished basement, sustaining head injuries that required hospitalization.

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