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

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