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

Court Addresses Conversion Claim Against the County The Nassau County Police seized a virtual armory from a private home. The owner of the guns sued the County for conversion. Would his claim survive a motion to dismiss? On March 20, 2007, one day after an incident at the office of United States Representative Carolyn McCarthy, the police removed from the home of Gabriel Razzano 15 registered handguns and nine “longarms.” The police issued receipts which contained language tracking that of Penal Law § 400.05 with respect to the disposition of surrendered firearms. Specifically, the receipts stated: Guns must be redeemed… Read more

Was Insurance Claim Barred by “Earth Movement” Exclusion? Commercial insurance policies often provide generic risk coverage, but that general coverage is often concurrently limited in scope by specific exclusions. As a recent case illustrates, the Court may be required to navigate the exclusions to determine if coverage liability exists. Great American Insurance Company of New York issued a risk property insurance policy to 3502 Partners LLC, insuring property located at 35-02 Northern Blvd., Long Island City, New York-a two-story brick and mortar building with multiple commercial tenants, adjacent to and directly behind a piece of property owned and maintained by the… Read more

Were Owner/Managing Agent Liable For Injury? “Res ipsa loquitur” is a legal principal that concludes that negligence occurred by the mere happening of an event. For example, an object falling from a building and injuring an innocent pedestrian. The elements of the concept are: the defendant was in exclusive control of the situation or instrument that caused the injury; the injury would not have ordinarily occurred but for the defendant’s negligence; and the plaintiff’s injury was not due to his/her own action or contribution. And, as a recent case illustrates, the doctrine applies to common and mundane accidents and injuries. Entrice… Read more

Was Ski Resort Liable for Injury? Snow skiing presents inherent and foreseeable risks of injury on the slopes. But, as a recent case illustrates, the Court may have to determine if a mechanical failure, such as a faulty tow-line, was a risk that a skier inherently and foreseeably assumed. Lauren Dowd-Dowd-Shedlock was a customer at Toggenburg Ski Center on January 24, 2014 with her three-year-old niece. She was assisting her niece on a beginner’s trail, which had a tow rope consisting of a rope pulling tow, with handles which hung perpendicular to the ground. As Dowd-Shedlock waited with her niece… Read more

Did Owner Have Claim Over Against Third Parties for Triggering the Dispute? Decisions often address claims by a defendant that the harm alleged by the plaintiff was caused by others—and result in so-called “third-party” claims for indemnification of contribution. As a recent case illustrates, the Court may be called upon to assess the viability of such claims. In 2016 Pier Franco Grosso consigned to Phillips Auctioneers LLC artwork in exchange for an advance of $1.5 million. Grosso represented that the artwork was by the late artist Cy Twombly. Phillips estimated the work would sell for $2.5 million to $3.5 million…. Read more

Was Tenant Liable for Increased Holdover Monthly Rent? Many commercial leases require a tenant who makes alterations to the premises to restore the space to its pre-alteration condition at the end of the lease term. But what is the consequence where the tenant timely vacates but fails to restore? 605 Fifth Property Owner LLC sought damages from Luxottica Holding Corp. arising out of an alleged breach of a commercial lease. On December 1, 2009, Luxottica’s predecessor, Sunglass Hut Trading, LLC, executed a lease to take possession of a commercial space located at 605 Fifth Avenue, New York, New York. At… Read more