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… Read more

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… Read more

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. 4521 Park… Read more

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… Read more

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… Read more

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. Valentino sought to terminate the obligations under the lease and related guaranty or an abatement of rent, claiming pandemic-related frustration of purpose,… Read more

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… Read more

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. The Agreement stipulated as consideration for… Read more

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,… Read more

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. Over 30 years ago, the coop… Read more