Was Demise an Accident or Suicide? The brothers Levi and Benjamin Goldfarb, as beneficiaries of an insurance policy issued by Reliance Standard Insurance Company (Reliance), sued to recover under the Employee Retirement Income Security Act a $500,000 accidental death benefit because of the insured, Dr. Alexander Goldfarb’s, death while mountain climbing. Reliance sought summary judgment affirming the plan administrator’s decision to deny the “accidental death” benefit. The beneficiaries sought summary judgment, claiming that the plan administrator’s denial of the “accidental” death benefit was arbitrary and capricious. [1] Dr. Goldfarb, an avid mountain climber, attempted to climb a dangerous mountain in Pakistan… Read more

Was Prosecution Barred by “Choice of Evils” Justification Defense? Luis Jimenez was indicted on several counts for striking and severely injuring a small dog with a broomstick. Jimenez argued that the indictment should be dismissed because the prosecutor did not charge the grand jury on justification under Penal Law § 35.05(2), the “choice of evils” defense. Was that instruction warranted under the circumstances of the case? Jimenez was charged with second-degree criminal mischief under Penal Law § 145.10, aggravated cruelty to animals under Agriculture and Markets Law § 353-a, and Overdriving, Torturing, or Injuring an Animal under Agriculture and Markets… Read more

Did “O’Malley” Already Have One or Two? Amy C. Farrell alleged that she was injured by O’Malley, a vicious dog belonging to Peter M. Boushie. Amy’s husband, Kevin L. Ladue, alleged that he was deprived of his wife’s services, society, and companionship as a result of her injuries. After discovery, Farrell and Ladue moved for summary judgment. New York’s courts have long recognized that the owner of a dog who either knows or should have known of that animal’s vicious propensities will be held liable for the harm the animal causes as a result of those propensities. Liability in such cases… Read more

Did Buyer Have Cognizable Fraud and Other Claims Against Sellers and Brokers? Michael Vella purchased real property located at 2 Dellworth Drive, Yorktown Heights, New York, from Michael E. Straub and Erin L. Cummings Straub pursuant to a contract of sale dated July 9, 2018. The property was located next to several acres of state owned land. The Straubs retained Coldwell Banker Real Estate LLC as their selling broker. Karen O’Connor executed the exclusive right to sell agreement on behalf of Coldwell. Vella retained Michael Kahns of Berkshire Hathaway Home Services Hudson Valley as his broker in connection with the purchase of… Read more

Was Domino’s Liable For Officer’s Injury in Scuffle? On June 9, 2016, Kevin R. Allum was employed by Domino’s Pizza, LLC and was delivering pizza in Brooklyn. At about 1:00 a.m., New York City Police Department Officer Benjamin Maldonado pulled over Allum’s vehicle and cited him for a defective headlight. During the course of the traffic stop, Allum allegedly kicked his feet, flailed his arms, and resisted arrest. Maldonado forcibly removed Allum from the vehicle and both Maldonado and Allum fell to the ground. Maldonado sued Alum and Domino’s to recover damages for personal injuries. Domino’s subsequently moved for summary judgment… Read more

Court Determines if Data Sought Was (or Was Not) Protected by Law Facebook User fakespeare999 A/K/A hurtfulsloth (defendant in this action) moved the Court for an order quashing the non-party subpoena duces tecum issued by Jane Doe (plaintiff in this suit) seeking all documents, including IP addresses and login information, concerning User’s Facebook accounts, on the grounds that the subpoena was facially defective and improper under the Stored Communications Act and that service upon User was improper. User claimed the subpoena sought disclosure of information that was prohibited by the SCA and was overly broad in its reach of “all documents.” User further claimed… Read more

Did County, PD, and Officer Have a Defense? Ramon Antonio Ramos sued the County of Suffolk, the Suffolk County Police Department, and Police Officer Christopher Vitale to recover for personal injuries he allegedly sustained as a result of a motor vehicle-bicycle accident. The accident allegedly occurred on December 18, 2017, at approximately 4:18 p.m., in the marked crosswalk at the intersection of Third Avenue and Union Boulevard in Islip, New York, when a SCPD vehicle, operated by Vitale, attempted to make a left turn from westbound Union Boulevard onto southbound Third Avenue. The vehicle struck Ramos’ bicycle, which was traveling eastbound… Read more

Was Friend of Customer Who Translated Document Into English Liable For False Arrest? Selvon Peters sued Xue Zhen Lin and Li Qing Ni for false arrest, malicious prosecution, fraud and intentional infliction of emotional distress. Ni asserted that she merely served as an interpreter for Lin and, as such, could not be held liable for statements made by Lin. Peters alleged that, on or about March 10, 2017, Lin and Ni falsely stated to the Watervliet Police Department and the Albany County District Attorney’s Office that he had obtained money through fraud and/or false pretenses. The proof submitted by Ni… Read more

Court Adjudicates Panoply of Claims, Counterclaims, and Defenses Martha Schwartz alleged that 170 West End Owners Corp illegally installed and/or manipulated industrial fans on the roof of the building directly above her apartment. Schwartz was a tenant in apartment 30E at the building, a cooperative governed by Owners Corp. Schwartz alleged that in 2009 Owners Corp. relocated a certain number of industrial fans directly above and/or near her top-floor apartment, in an attempt to force her out of the building. She alleged that in 2012 Owners Corp. manipulated the fans to direct polluted and freezing air into her apartment, and… Read more

Would Excessive Garagekeeper’s Lien Trigger Conversion Claim Peter May sued Steve’s Marine Service West, Inc. and its principal, Steven Stavracos, in a dispute arising out of services performed on the engines of his boat. In April 2013, May brought the vessel to the Steve’s Marine boatyard to be repaired because it was not reaching maximum speed; the engine, which should have been performing at 3,600 or 3,800 revolutions per minute (rpm), was performing at 2,600 rpm. The parties offered differing versions of their agreement. According to May, Steve’s Marine guaranteed that repairs and adjustments to two components, the riser and the turbocharge,… Read more