Court Adjudicates Village’s Negligence Liability for Fractured Elbow On November 2, 2016, Kathleen Noonan was playing doubles tennis on court number 4 at the Garden City Recreational Tennis Complex. The tennis complex is a public facility that is owned, operated and maintained by the Village of Garden City. Noonan testified at her oral deposition that as she was playing tennis, she had to back pedal in an attempt to get in a position to return the ball. She indicated that she back pedaled past the baseline and raised her racket back to hit the ball. At that point, her left… Read more

Did Adverse Impact On Service Constitute a Breach of Warranty? Gene Rosen sued MF Associates of New York LLC and Ogen Cap Properties, LLC for breach of the warranty of habitability at four (4) high rise residential buildings located at 205/215/225 and 235 East 95th Street in Manhattan in a complex known as Normandie Court. In his amended complaint, Rosen alleged, on behalf of himself and others similarly situated, that MF Associates and Ogden, as owner and manager, respectively, of the Normandie Court buildings, breached the warranty of habitability on rentals/leases in those buildings by depriving tenants of the use… Read more

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… Read more

Court Decides If Email From Management Company & Attorneys Was Privileged Michele and John Kijek sought an order compelling the Board of Managers of Lakeside of Bedford Condominium (“BMLBC”) and Katonah Management Group, Inc. (“KMG”) to disclose: (1) complete and unredacted copies of any and all emails between the Condominium and Shapiro, Gettinger Waldinger & Montelone, LLP (including all attorneys and/or employees of such law firm, including but not limited to Steven Waldinger and Jennifer Catalanotto) and the Management Group (including but not limited to Andrea Morse, Stephen Brussels, Bryan Hao, Dean Sterino, Jeanne Casarini and Sylvia Padrevita for the… Read more

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