Monthly Archives: March 2022

Three Day Trial in Contested Canine Custody Case:

Posted on March 31, 2022 | Comments Off on Three Day Trial in Contested Canine Custody Case:

This was originally posted on the SGR Blog.

Court Determines Which Parent has Right to Sole Possession

Our Courts regularly and routinely resolve disputed claims to possession of personal property and controverted petitions for child custody. But, as a recent case illustrates, a Court may be required to adjudicate competing applications for possession/custody of a cherished canine companion.

Matthew Mundo sued Harry Weatherson to recover possession of a Chihuahua dog named Maximus. The complaint alleged that Maximus (valued at approximately $2,500) was being wrongfully detained by Weatherson because Mundo held a superior right to possession. Mundo asserted causes of action for replevin, declaratory judgment and intentional infliction of emotional distress.

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Posted in Animals, Litigation, New York Law

All Not Bucolic at Esplanade Gardens in Manhattan:

Posted on March 28, 2022 | Comments Off on All Not Bucolic at Esplanade Gardens in Manhattan:

This was originally published on the SGR Blog.

Board Members Challenge Termination in Court

Did the Board of Directors of a residential coop have the right to terminate two directors? Were the dismissals subject to Court review under the business judgment rule?

Esplanade Gardens, Inc. is a six- building 1,872-apartment Mitchell-Lama coop on West 145th St. in Harlem (est.1967).

Robyn Tolliver and William Ross alleged that they were wrongfully removed from their positions as members on the Board of Esplanade.

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Posted in Co-Ops, Litigation, New York Law, Real Estate

Numerous Defects in Execution of Propounded Will:

Posted on March 24, 2022 | Comments Off on Numerous Defects in Execution of Propounded Will:

This was originally published on the SGR Blog.

Would Court Grant Unopposed Petition to Probate?

Many of us have either signed or witnessed the signing of a will—and are familiar with some of the concomitant practices and procedures.  But the Estates Powers and Trust Law details the four requirements for the due execution and attestation of a will. What is a Surrogate to do if no one objects to the probate of a will even if that statutorily essential quartet is not meticulously satisfied?

In an uncontested proceeding for the probate of an instrument alleged to have been signed by Domenica L. Russo, the Court held a hearing to determine whether the execution of the proffered instrument met the formal requirements of EPTL 3-2.1.

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Posted in Litigation, New York Law, Trusts & Estates, Wills

Cyclist Injured in Fall on Westchester Park Bike Trail:

Posted on March 21, 2022 | Comments Off on Cyclist Injured in Fall on Westchester Park Bike Trail:

This was originally posted on the SGR Blog.

Was County Liable for the Riders Injury?

My last blog post related to an action that arose after a recreational rider was injured in a fall on a bike path in a New York State park that was claimed to have been negligently maintained. This blog post relates to a proceeding that arose, on similar facts, after a recreational rider was injured in a fall on a bike path in a Westchester County park.

At approximately 8:00 a.m. on June 16, 2018, Scott Dinhofer had already been riding his triathlon bicycle for two hours or thirty miles. While traveling south on the North County Trailway in the Town of New Castle in Millwood, New York, when his bicycle hit a bump on the Trailway that was shaded by a tree. As a result, the bicycle flipped forward causing Dinhofer to land on the right, back side of his body, and he was transported by ambulance to Westchester County Medical Center.

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Posted in Litigation, New York Law, Personal Injury, Personal Injury

Cyclist Injured in Fall on State Park Bike Trail:

Posted on March 17, 2022 | Comments Off on Cyclist Injured in Fall on State Park Bike Trail:

This was originally published on the SGR Blog.

Was New York Liable For the Rider’s Injury?

This blog post relates to an action that arose after a recreational rider was injured in a fall on a bike path in a New York State park that was claimed to have been negligently maintained. My next blog post relates to a proceeding that arose, on similar facts, after a recreational rider was injured in a fall on a bike path in a Westchester County park.

Victor Alfieri alleged that, on August 15, 2016, he was injured at Rockland Lake State Park after the wheel of his bicycle got caught on broken asphalt on the bike path, and he fell to the ground as a result of the State of New York’s negligent maintenance of the bike path. A virtual trial on the issue of liability was held on May 4, 2021.

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Posted in Litigation, New York Law, Personal Injury, Personal Injury

Siblings Dispute Ownership of Corporation Created by Dad:

Posted on March 14, 2022 | Comments Off on Siblings Dispute Ownership of Corporation Created by Dad:

This was originally posted on the SGR Blog.

Was Stock Certificate to Son a Gift or Forgery?

It is not unusual for intra-family exchanges, gifts and transactions to be implemented without the formalities required by law. But, as a recent case illustrates, the Court may have to sort out intentions and consequences where the facts are in dispute, the acts or documents are not clearly dispositive, and conflicting outcomes are suggested.

In 1989, Abraham Lurie incorporated Lurie Management Corp., naming himself as sole owner and shareholder. In 2018, Neil Lurie, Abraham’s son, received a letter from Abraham’s attorney stating that Abraham had transferred his ownership of the stock of LMC to three trusts: 49% to Neil Lurie Trust (which was created by Abraham for the benefit of Neil), 25.5% to Susan Lurie Trust (which was created by Abraham for the benefit of his daughter Susan Lurie) and 25.5% to Leila Lurie Trust (which was created by Abraham for the benefit of his daughter Leila Lurie).

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Posted in Litigation, New York Law

Personal Injury Plaintiff Had Back Surgery Before Independent Medical Examination:

Posted on March 10, 2022 | Comments Off on Personal Injury Plaintiff Had Back Surgery Before Independent Medical Examination:

This was originally posted on the SGR Blog.

Did Court Properly Impose Sanction for Spoliation of Evidence?

Scene set: A tenant suffers a back injury in a ceiling collapse. The owner demands an independent medical examination. Before the exam, the injured party has back surgery. The owner cries foul.

Was the condition of her body the kind of evidence that was subject to a spoliation (destruction of evidence) analysis?

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Posted in Evidence, Litigation, New York Law

Residential Tenant Vacates Apartment Before End of Lease Term:

Posted on March 7, 2022 | Comments Off on Residential Tenant Vacates Apartment Before End of Lease Term:

This was originally posted on the SGR Blog.

Did Landlord Have/Fulfill Duty to Mitigate Damages by Reletting?

In 2019, the New York State Legislature amended the Real Property Law to mandate that landlords “shall, in good faith and according to the landlord’s resources and abilities, take reasonable and customary actions to rent the premises” vacated by a tenant during the term of a residential lease. Thus, landlords under residential leases now have the same obligations as commercial landlords to attempt to mitigate their damages when a tenant vacates the premises in violation of the lease. Needless to say, as a recent case illustrates, the Court may be called upon to determine if the actions taken by a landlord to re-let a vacated apartment were reasonable and customary.

The 14 East 4th Street Unit 509 LLC moved for partial summary judgment on its first and fourth causes of action, for breach of contract for unpaid rent and attorney’s fees, respectively, as well as to dismiss affirmative defenses and counterclaim of Michael Toporek—who opposed the motion and cross-moved for summary judgment on all East 4th’s causes of action and on his counterclaim.

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Posted in Landlord-Tenant, New York Law, Real Estate

Train Hits Pedestrian Lying on Tracks at Night:

Posted on March 3, 2022 | Comments Off on Train Hits Pedestrian Lying on Tracks at Night:

This was originally posted on the SGR Blog.

Was Daytime “Open Run” Defense Dispositive?

For more than a century, New York courts have recognized the so-called “open run” defense, which permits a train engineer who sees a person on or near the tracks ahead to assume, under certain circumstances, that the person will notice the oncoming train and leave the tracks in time to avoid an accident. When the open run defense is applicable, the engineer has no duty to make an emergency stop unless he or she determines that the person cannot or will not leave the tracks.

A recent case raised a novel issue:

Was the open run defense applicable only when the train was operating “in broad daylight”.

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Posted in Litigation, New York Law, Personal Injury