Was Decedent “Visibly Intoxicated ”At Time He Was Served Drinks So As To Implicate Dram Act Liability? The New York Alcoholic Beverage Law prohibits the sale of liquor to an intoxicated person. The Dram Shop Act creates a private civil cause of action against those who overserve drinks in favor of third-parties who suffer personal injuries as a result of a violation of the ABC Law. But to trigger Dram Shop liability a claimant must establish that the miscreant was “visibly intoxicated”—a fact and case specific burden. Michael Stanley, Thomas Kelly, and five other men met at the home of Thomas… Read more
Articles
Driver “Blinded by Sun” Hits Biker
Was “Emergency Doctrine” a Defense? Andrew DiNatale sued to recover damages for injuries he allegedly sustained on April 29, 2015 while riding a bicycle. He was struck by a motor vehicle owned by Mac Mechanical Conveyor (MCC) and operated by Nicholas Gerbano. DiNatale moved for partial summary judgment in his favor as to MMC/Gerbano’s negligence, arguing that their actions were the sole proximate cause of the accident. DiNatale also sought an order striking their affirmative defenses related to “negligence liability.” In support of the motion, DiNatale submitted his own affidavit, various photographs, and a certified copy of an MV-104A police… Read more
Bickering Neighbors Sue and Counter-Sue After Altercation and Arrest:
Court Patiently Parses Panoply of Pernicious Pleadings A front-yard fracas erupts among neighbors. Police are called. An arrest is made. The charge is dismissed. Civil litigation ensues. A verbal altercation occurred between Denise Mahoney and her neighbors on August 28, 2016. The spat allegedly began after Terry Mayowski looked through the window of his home and spotted Mahoney standing in her front yard across the street waiving her finger and shouting obscenities at him. After observing Mahoney, Mayowski walked into his front yard to confront her. Melissa Teehan, Mayowski’s girlfriend, joined Mayowski shortly after she overheard the shouting and began arguing… Read more
Contiguous Owner Opposes Neighbors Application for Roof Protection:
Court Weighs and Resolves Competing Claims and Interests New York has a statutory procedure in which a real property owner contemplating construction or renovation work may petition the Court for a license to install roof protection and safety devices that implicate the rights of a neighbor. But, as a recent case illustrates, the Court may be required to weigh and evaluate competing claims, facts, and interests in addressing the petition. 145 E. 57th St. Associates, LLC sought an order, pursuant to RPAPL 881, granting it a license to enter the neighboring property of Aldo LLC at 149 E. 57th St., to… Read more
In-Ground Swimming Pool Collapsed Causing Collateral Damage:
Was Loss Covered by Insurance Policy or Barred by Exclusion? Homeowners’ insurance policies cover generic enumerated risks, on the one hand, but also expressly exclude certain coverages, on the other. As a recent case illustrates, a Court may be required to determine whether a particular loss is covered or excluded. Evan and Jennifer Klein owned a home in Suffolk County insured under a homeowner’s insurance policy issued by State Farm Insurance Company. During the coverage period, the Klein’s in-ground swimming pool collapsed, causing damage to the pool walls, brick border, and patio area surrounding the pool. They submitted a claim for coverage… Read more
Chihuahua Nips Next Door Neighbor:
Did Personal Injury Claim Have Legal Bite? Kathleen Piedimonte sued Inez Alvarenga-Benitez as a result of having the leg of her jeans bitten and the back of her leg pressed upon or impacted by the paws of a twelve-and-a-half-pound Chihuahua named Perry, causing her to fall and break her leg. Piedimonte’s neighbor, Danielle Jones, testified at her deposition that, prior to the incident, the dog Perry had wandered in the street unattended every day. He routinely growled and barked at people walking down the street, and she had seen Perry charge at people or cars more than ten times. On one… Read more
Collector Sues for Replevin of 18th Century Gold Plate Stolen in 1962:
Was Claim Barred by the Three Year Statute of Limitations? Ambassador J. Willim Middendorf, a leading collector of early American imprints and documents, sued the American Numismatic Society, a not-for-profit institution, for declaration of title and replevin, alleging that an engraved plate for an eighteenth-century 42-shilling note that was acquired by the Society in 1965 as part of its permanent collection was property that he acquired in 1959 and owned until 1962, when it was stolen from his car. On August 11, 2014, Middendorf wrote to the Society that: Some time ago I was in touch with your director about the… Read more
Treadmill-er Trips on Adjacent Electrical Box:
Were Gym Operators Liable for Injury? Yael Sebagh sued Capital Fitness, Inc. and alleged that she was injured when she attempted to disembark from a treadmill at a fitness center. As she stepped off the treadmill, Sebagh allegedly tripped or stepped on an electrical box that was located on the floor next to the treadmill, which caused her to fall and sustain personal injuries. The building was owned by Simon Property Group, L.P., and leased by Capital Fitness, Inc., and Capital Fitness-Roosevelt, LLC. Capital interposed an answer which included the third affirmative defense of the primary assumption of risk doctrine,… Read more
Postal Worker Spooked by Dog | Falls Off Stoop:
Was Homeowner Liable for the Injury? A postal worker making a delivery to a house is startled when she hears a dog bark. She turns to avoid the canine and is injured falling off the stop. She sues the homeowner and the Court must decide if she makes a case. Jean-Charles sued Jeniann Carey to recover damages allegedly sustained as a result of an accident on February 3, 2017. Jean-Charles alleged that, on the date of the accident, she was delivering mail at Carey’s residence during her course of employment as a postal worker when she fell off the front exterior… Read more
Slippery Bowling Alley Brouhaha in Clifton Park
Was Owner Liable for Injury Near Ball Return? Every case that arises from a recreation/sports-related injury must address several threshold questions. First, was the premises maintained in a reasonably safe condition? Second, did the owner have actual or constructive notice of an unsafe condition? Lastly, did the unsafe condition cause or contribute to the injury? A recent case, involving a hand injury at a bowling alley, addressed all 3 questions. Jaime Muscato sued Spare Time Entertainment alleging a slip-and-fall at a bowling alley located on Route 9 in Clifton Park, New York. And claimed negligence in maintaining the premises, in that the floor… Read more