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… Read more

Court Determines if Seller Has Legally Cognizable Claims Our Courts usually do not permit a breach of contract claim to be escalated to the business tort of breach of fiduciary duty. But, as a recent case illustrates, unique circumstances, collateral factors, and allegations of fraud and concealment may justify the claim. Tiny 1, Ltd. and others alleged that Georges Berberi and Matt Auerbach, both of whom were affiliated with Samfet Marble Inc., sought to purchase Tiny 1, formerly known as Port Morris Tile & Marble Corp., and schemed to control Port Morris’s financial operations while its sole owner, Vincent DeLazzero, was… Read more

Was Tenant Entitled to Abatement of Rent? Karen Congdon sought $1,149.95 in damages from Jessica Filippi for breach of a month-to month lease. The matter proceeded to trial before the City Court of Little Falls in Herkimer County. Congdon testified that Filippi left without providing one-month notice as required in the month-to-month lease agreement and sought the unpaid rent for September 2021 as well as damages for mold remediation, locks, smoke alarms, a broken refrigerator drawer, and other damages. Congdon also testified that she expended money on various cleaning products following Filippi’s leaving the apartment. Congdon called City Codes Officer… Read more

Court Analyzes Proof of Work, Labor, and Materials Laura Cruz sued Carl Backell Rodriguez for $5,000 for failure to complete work pursuant to a construction contract. The matter proceeded to trial in the City Court of Little Falls in Herkimer County. Cruz testified that she paid Backell $6,929 to install siding, windows, repair her porch, and other work pursuant to contracts between the parties executed in September 2021. Elizabeth Pritchard testified that she gave Cruz the referral for Backell; there was an issue that involved contacting the codes department; testified about various text messages; and Backell stopped showing up to work…. Read more

Claim Stated for Unjust Enrichment or Other Relief? The Statute of Frauds may bar the enforcement of an oral agreement to develop real property. But, as a recent case illustrates, the “breach” may support a claim for unjust enrichment. Clean Robins sued Wenn, Ltd. (Wenn) over a dispute with respect to the property known as 166 Williams Street, also known as 41-43 Beekman Street, owned by Wenn. Robins alleged that, in 2016, he and Wenn entered into an agreement to convert the property into a 7-story building with occupancy for short-term rentals on floors 2-7 with the existing restaurant to remain… Read more

Was Claim Barred by “Storm In Progress” Rule? Krystyna Prystupa allegedly sustained injuries to her shoulder following a fall she took on the property owned and operated by Crown Plaza Resort & Golf Club at Lake Placid, New York, at or about 1:32 p.m. on January 24, 2017. Prystupa asserted that there was snow and maybe ice conditions that should have been cleared on the walkway where she fell. In contrast, Crown Plaza alleged that there was a “storm in progress” and the resort could not be held liable for the condition of the walkway at the time of the… Read more

Appeals Court Decides If Access to Phone Should Be Granted ­­­Kristie R. Tousant filed a negligence action, individually and on behalf of her son, Anthony J. Farrell, seeking damages for injuries sustained by Farrell when the vehicle he was operating collided with a school bus. The bus was operated by John M. Aragona and owned by Central Square Central School District (CSCSD). The accident left Farrell in a vegetative state. During discovery, Aragona and CSCSD moved for production of, and information from, Farrell’s cell phone, seeking to determine whether he was using the phone at or near the time of… Read more

Were City, Hospital and Police Officer Liable for Injury? On August 25, 2017, while under arrest by the New York City Police Department, Joseph Curet was taken by ambulance from the precinct to St. Barnabas Hospital due to complaints of chest pain. He was accompanied to the Hospital by P.O. Joseph Keith. Curet’s left arm was cuffed to the stretcher and his legs were in shackles. Keith remained with Curet in the emergency room. While laying on the stretcher in the emergency room, Curet was suddenly approached by another patient, Tomas Berroa, and was stabbed in the chest and the… Read more

Court Adjudicates Consequences of Tenant’s Removal of Improvements Made by Landlord Commercial leases often require the tenant to vacate and deliver the space back to the landlord at the end of the term in the condition of the premises at the beginning of the lease. But, as a recent case illustrates, the landlord and tenant may disagree on whether or not certain improvements may or may not be removed where the cost of installation was shared by the parties. Wallkill Medical Development, LLC, as landlord, and Medi-Fair, Inc., as tenant, entered into a 10-year commercial lease with regard to the ground floor… Read more

Was Owner/Operator Liable for the Injury? A member walks on a treadmill at a fitness center. The treadmill spontaneously accelerates, causing her to fall. Litigation ensues. On March 27, 2017, Linda Mermelstein was exercising at a fitness center owned and operated by Campbell Fitness NC, LLC when the treadmill she was using allegedly spontaneously accelerated, causing her to fall off the treadmill and sustain personal injuries. Mermelstein sued to recover damages for personal injuries, alleging that Campbell was negligent in maintaining the premises and the treadmill. After discovery, Campbell moved for summary judgment dismissing the complaint. The Supreme Court granted… Read more