Did Siberian Husky “Charlie” Have Known Vicious Propensities? Postwoman’s Testimony May Have Dispositive Bite

This was originally posted on the SGR Blog.

Is every dog entitled to one bite? As a recent case illustrates, proof of prior canine misconduct is required to show vicious propensity. 

Suzanne Castelluccio was bitten on May 12, 2016, by a dog named “Charlie” in the driveway of 13 Kent Street in Rock Hill, New York, owned by Karen Hudson and Phillip Hudson. 

According to Karen Hudson, she and Castelluccio were traveling to Middletown when they stopped by the Hudson house in Rock Hill. Hudson exited the van and approached the chain-linked pen, which contained her Siberian husky, Charlie. The fence of the pen was approximately five feet high and extended to her garage. Hudson approached the gated pen, and Charlie jumped up with his front paws on the fence; she then went back toward the vehicle to retrieve her house keys. Castellucio saw Hudson pet the husky who asked for and was granted permission to pet Charlie. Hudson then proceeded from the van to her front door.

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Frustration/Impossibility/Casualty/Eminent Domain: Rent Default Restaurant Asserts Quartet of Legal Defenses

This was originally posted on the SGR Blog.

Certain defenses to claims by landlords against commercial tenants for rent accrued but unpaid during the pandemic have become almost “boilerplate.” The frustration of performance. Impossibility of performance. They were closed by casualty. But, as a recent case illustrates, joining that panoply is the defense that governmentally-ordered restrictions or shutdowns constituted a taking by eminent domain that excused the payment of rent.

111Fulton St. Investors, LLC is the landlord for a commercial space located on the ground floor of a building in Manhattan. Fulton Quality LLC entered into a lease for the premises in 2011 for a twelve-year term. Quality runs a restaurant at the site. Investors insisted that Quality was in default of the lease and pointed to an October 30, 2019 letter allegedly sent to Quality that sets forth the basis of the default. Quality later cured its defaults but stopped making payments in March 2020. Another default letter was sent in June 2020. Investors sued and moved for summary judgment seeking the amount it claimed was due.

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Did MOU Constitute an Enforceable Contract? Court Determines If All Material Terms Were Covered

This was originally posted on the SGR Blog.

Proposals, counter-proposals, term sheets, and memos-of-understanding are regularly and routinely exchanged in the ordinary course of negotiations of contracts for the purchase and sale of real property. But, as a recent case illustrates, a mutually accepted MOU may be found to constitute a binding and enforceable agreement in the absence of a more formal contract.

South Bronx Overall Economic Development Corp. sued 4521 Park Ave. Realty Corp. for specific performance and breach of contract in connection with an alleged agreement for sale by 4521 Park to Sobro of the real property at 4521-4529 Park Avenue in the Bronx.

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Was Town of Chester Culprit in Culvert Calamity? Court Decides If Municipal Immunity Defeats Claims

This was originally posted on the SGR Blog.

Commercial litigators in metropolitan areas face a general and familiar panoply of laws and precedents applicable to business disputes. But, as a recent case illustrates, our suburban and upstate counterparts often encounter an entirely different array of statutes and case law applicable to tort claims against a municipality.

Douglas Soffey sued the Town of Chester to recover damages for personal injuries he sustained in an incident that occurred on June 1, 2016, at approximately 8:00 PM, at the downstream side of a culvert pipe located under Hardscrabble Road in the Town of Chester, Warren County. Soffey had been fishing with friends on Bird Pond, a privately owned water body. He was in a canoe with one of his friends and his dog. When the friend and dog jumped out of the canoe, the canoe tipped. Soffey fell out of the canoe, and his right leg struck the end of the culvert pipe, causing a laceration to his lower right leg. Soffey was familiar with the area of the culvert, having used the area on numerous occasions to access Bird Pond. He had launched his canoe next to the culvert pipe and had returned to the same location to exit the water with the canoe.

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Was Noisy Co-op Neighbor’s Uncarpeted Floor a Nuisance? Court Examines Panoply of Disturbing Claims

This was originally posted on the SGR Blog.

Residential cooperative living presents foreseeable “nuisance” challenges from contiguous neighbors, in general, and from people living directly above, in particular. But, as a recent case illustrates, not every annoyance—no matter how hard the facts—leads to injunctive or other relief.

Steven Dubin sought a Court order directing his upstairs neighbor, Brian Glasses, to cease his nuisance activities, to comply with their coops house rules, and to refrain from activities that deprived Dubin of the quiet enjoyment of his home. Glasser moved to dismiss the complaint on the grounds that there was a pending proceeding in Housing Court, and the complaint failed to state a cause of action.

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Pandemic Meets Allocation of Risk on Fifth Avenue: Was Luxury Retail Tenant Constructively Evicted?

This was originally published on the SGR Blog.

Commercial tenants routinely assert both frustrations of purpose and impossibility of performance as defenses to claims for non-payment of rent accruing during the pandemic. And, as a recent case illustrates, the defense of actual or constructive eviction has joined that panoply, with a similar result.

Valentino U.S.A., Inc.’s entered into a lease with Thor 693 LLC for lower level and ground/second/third-floor space at 693 Fifth Avenue for the display and sale of luxury womenswear, menswear, goods, and accessories.

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Leaky Can of Insecticide Befouls NYC Apt.: Which of Several Parties Was Responsible? Under What Law?

This was originally published on the SGR Blog.

Much of civil litigation involves finger-pointing, blame-shifting, or culprit-finding—with the concomitant shoe-horning of a set of unique facts into the various cause of action templates. And, as a recent case involving an imploding can of insecticide illustrates, the Court may have to meticulously navigate both the facts and State (GOL) and Federal (FIFRA) statutes.

John Pankow and Kristine Pankow are apartment residents. Plant Shed Inc. sells a variety of plants, floral, botanical, and gardening products, including pesticides, insecticides, rodenticides, and disease control products for plants. Bonide Products, Inc. manufactures, designs, engineers, tests, distributes, markets, imports, and sells a variety of garden products, including Bonide Systems Insect Control.

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COVID-19 Meets Force Majeure at the Edison Ballroom: Was Equitable Relief Warranted to Postpone Birthday Party?

This was originally posted on the SGR Blog.

The law reports are replete with contract disputes arising out of the pandemic. But, as a recent case illustrates, a force majeure clause in an agreement may be conclusive.

Adam and Randi Sanders sued to recover money deposited for an event at defendant Edison Ballroom, LLC’s facility, which did not occur due to the COVID-19 pandemic.

The parties entered into an agreement dated May 25, 2018, for the Sanders’ use of the Edison Ballroom to host an event that was to take place on April 25, 2020, to coincide with their daughter’s age-related birthday.

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Does Gryffin belong to Shalloo or Zarrour? Court Decides Claims to Welsh Terrier Puppy

This was originally posted on the SGR Blog.

A dog may be wo/man’s best friend. But, when it comes to the law, a dog is a mere chattel or thing—possession of which is governed by the competing proofs in action for conversion.

Madison Shalloo sued Beleal Zarrour for the replevin of a dog on August 14, 2020. In her complaint, Shalloo alleged she was in a relationship with Zarrour. They shared an apartment in Long Island City from November 30, 2017, to January 10, 2020. In April 2018, they agreed to purchase a dog together. Shalloo located and was the contact person with the breeder. On July 2, 2018, they purchased a Welsh Terrier puppy named Gryffin Shalloo. And she reimbursed Zarrour for one-half of the cost of Gryffin.

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Yet Another Fight About Exclusive Coop Roof Rights: Battle on 93rd St. Over Deck Space Next to Greenhouses

This was originally posted on the SGR Blog.

Access to and use of the roof of a residential coop is a much sought, cherished, and protected amenity. As a recent case illustrates, a claim to “exclusive” enjoyment of space on a roof can result in complicated and contentious litigation.

Nina Neivens brought an action individually and as temporary administrator for the Estate of Mary Neivens, her late mother, against 24-26 E. 93 Apts. Corp., a residential coop. She sought declarations regarding her rights to exclusive use of the roof of the coop’s building as the proprietary lessee of apartments 10AB and 10CD.

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