Firm News

EDNY Dismisses Suit Against City of Pittsfield, Massachusetts and its Police Chief

In a decision dated June 26, 2013, Judge Eric N. Vitaliano of the United States District Court for the Eastern District of New York granted the City of Pittsfield, Massachusetts and its Police Chief Michael Wynn’s motion to dismiss the complaint. The plaintiff sought damages for false imprisonment against the defendants claiming he was improperly detained in New York due to a case of mistaken identity and based on a warrant issued in Berkshire County, Massachusetts. The City of Pittsfield and Chief Wynn moved to dismiss the complaint in the Eastern District of New York on the basis that New York lacked personal jurisdiction. In granting the motion, Judge Vitaliano found that the City of Pittsfield and Chief Wynn had established that they did not engage in a persistent course of conduct in New York and had no involvement in the decision whether or not to initiate extradition proceedings between Massachusetts and New York.

Brown v. City of New York, et al., 2013 WL 3245214 (E.D.N.Y. June 26, 2013)

Stephen M. Cohen lectured at a seminar sponsored by AON entitled “Public Works Risk Forum,” in New York City.

John V. Fabiani, Jr. and Thomas J. Hall lectured at a seminar for various insurance carriers entitled “Elements of Economic Loss- Defending Claims for Economic Damages,” in Alpharetta, Georgia.

John V. Fabiani, Jr. lectured at the Long Island Contractors’ Association conference entitled “2013 Excavation Safety Seminar,” in Hauppauge, New York.

We are pleased to welcome our newest valued client, Northeast Structural Steel, Inc.

Court Dismisses Plaintiff’s Complaint Against Defendant Plumbing Contractor

In a decision dated March 26, 2013, Justice Larry D. Martin granted defendant plumbing contractor TF Plumbing and Heating Contractor’s (“TF Plumbing”) motion for summary judgment dismissing the plaintiff’s complaint against it. The plaintiff sought damages for personal injuries allegedly sustained when she slipped and fell on water in an aisle of a Western Beef Supermarket. Plaintiff sued TF Plumbing on the theory that its negligent plumbing work caused the hazardous condition. Certain testimony and evidence indicated that TF Plumbing performed sprinkler installation at the supermarket prior to the plaintiff’s accident. However, the Court found that TF Plumbing had established its entitlement to summary judgment by submitting testimony and evidence which showed that it did not perform work near the location of the accident.

Shanon v. Elmont Q Properties, Inc. et al., Index No.: 26284/09 (Kings Co. Sup. Ct., March 26, 2013)

First Department Affirms Lower Court Decision Granting Defendant Building Owner Summary Judgment Dismissing Plaintiff’s Complaint In Dog Bite Case

In a decision dated April 4, 2013, the Appellate Division, First Department, unanimously affirmed Justice Larry S. Schachner’s decision dated December 23, 2011, which granted the defendant building owner’s motion for summary judgment dismissing the plaintiff’s complaint against it. The infant plaintiff sought damages for personal injuries allegedly sustained when he was bitten by a dog allegedly owned by a tenant in the defendant building owner’s premises. In granting the defendant building owner’s motion, the lower Court held that the record revealed that the defendant had no notice of the presence of the dog on the premises or of its vicious propensities. The incident also occurred off the defendant building owner’s property and there was no proof of any agency relationship nor was one pled. In light of the foregoing, the First Department held that the lower court properly granted summary judgment to the defendant building owner and dismissed the plaintiff’s complaint as against it.

Desay v. Copo Management, LLC et al., 105 A.D.3d 453, 963 N.Y.S.2d 79 (1st Dep’t 2013)

Stephen M. Cohen and John V. Fabiani, Jr. lectured at a seminar for AON entitled “Defending Future Medical Cost Claims – The Potential Effect of Obamacare,” in New York City.

We are pleased to welcome our newest valued clients: Nestlé USA, Inc., Nespresso USA, Inc., Silverite Construction Company Inc., DeFoe Corp. and Brookfield Properties.

Federal Judge Dismisses Plaintiff’s Complaint With Prejudice

In a decision dated November 28, 2012, United States District Judge Sandra L. Townes granted the motion of the City of New York, the New York City School Construction Authority (“SCA”), and other municipal defendants for an order dismissing the complaint for the plaintiff’s repeated failure to comply with court discovery orders. The pro se plaintiff, John DePietro, was seeking damages for the allegedly wrongful demolition of several structures on his property in December 2007. The plaintiff also claimed that the SCA’s installation of a drainage system in connection with the construction of a new public school across the street from his property in the late 1990s has caused, and continues to cause excessive water run-off from the school property onto his own property, resulting in continuing damage to his property. The defendants’ motion outlined the plaintiff’s pattern of failing to provide proper responses to discovery demands, and the plaintiff’s noncompliance with multiple orders of the Court directing the plaintiff to provide such responses. Additionally, although the plaintiff had previously been represented by counsel, on July 14, 2011 the plaintiff’s attorney had received leave to withdraw on the grounds of, inter alia, “lack of communication” and “breakdown in communications.” The Court directed the plaintiff to retain new counsel by September 14, 2011, but the plaintiff did not do so, electing to proceed pro se. In response to the defendants’ motion, the plaintiff admitted that it had been a mistake to proceed without an attorney, and requested additional time to retain new counsel. The Court noted that Federal Rule of Civil Procedure 41(b) authorizes the Court to dismiss a complaint “for failure of the plaintiff to prosecute or to comply with … any order of court,” and proceeded to consider the relevant factors for dismissal pursuant to that rule. The Court found that the plaintiff’s noncompliance with discovery obligations was of significant duration, and it noted that it had previously warned the plaintiff that his failure to comply with the Court’s orders raised the possibility of dismissal for failure to prosecute. The Court accepted the defendants’ argument that the plaintiff’s unreasonable delay had prejudiced the defense of the case, as it became increasingly difficult to locate necessary witnesses, and to locate and preserve relevant documents. The Court also noted that the defendants had incurred the costs of attending multiple court conferences in a case that had failed to progress in any meaningful way due to the plaintiff’s noncompliance with discovery orders. The Court rejected the plaintiff’s request for additional time to retain new counsel, noting that the plaintiff’s history of delays dated back to when the plaintiff was represented by counsel. Accordingly, the Court granted defendants’ motion, and dismissed the plaintiff’s complaint with prejudice.

DePietro v. The City of New York, Index No.: 09-cv-932 (E.D.N.Y. November 28, 2012)