Summing Up May 2019
DeMaioribus v. Town of Cheektowaga
Loftus Successful on Summary Judgment Concerning Prior Written Notice
On March 20, 2019, attorney Kevin Loftus successfully argued a motion for summary judgment in the “DeMaioribus v. Town of Cheektowaga” case. The motion was argued before the Honorable Paul B. Wojtaszek. The lawsuit arose out of a slip-and-fall on ice on a stairwell leading up to the Cheektowaga Town Hall entrance. Kevin Loftus successfully argued that based on the controlling New York State case law, the stairway was essentially an extension of the municipal sidewalk, and therefore, fell under the prior written notice statute.
Following a lengthy oral argument, Judge Wojtaszek granted to Town of Cheektowaga’s motion and dismissed the plaintiff’s complaint.
Chmiel Wins Dismissal of Case upon Plaintiffs’ Late Notice of Claim
In the matter of Janeen Greene, Individually and as Mother and Natural Guardian of T.W., Jr., an Infant v. Tapestry Charter School, an alleged accident involving a student occurred at the Tapestry Charter School in January of 2016. Pursuant to New York State’s General Municipal Law, in order to sue a public entity for personal injury, you are first required to file a notice of claim within ninety days of an accident. In this case, the plaintiffs failed to do so, and not even seek to attempt to until July, 2018.
Tapestry Charter School brought a motion to dismiss the entire claim. For their part, the plaintiffs brought their own motion seeking leave to file a late notice of claim.
We argued that the plaintiffs offered no excuse whatsoever for the lateness of the notice of claim, and that Tapestry Charter School was prejudiced by their resulting inability to conduct a thorough investigation of the accident. The Honorable Mark Montour agreed with our argument and dismissed the case, as well as the plaintiffs’ cross-motion.
This motion was argued by Michael J. Chmiel, Esq., who is the co-chair of the firm’s municipal law department. Should you have any questions regarding this or any other municipal law matter, please contact Mr. Chmiel at mchmiel@cheluslaw.com.
Emdin Successfully Argues to Dismiss Claims Against Client’s Estate
Buffalo, New York – February 2019 – In the matter of Nicholas D. Coia v. Thomas M. Serena As Executor Of The Estate Of Thomas L. Serena, Deceased, the plaintiff Coia was seeking damages arising out of a head-on collision that occurred in August of 2016 on Route 5 in the Town of Brant, Erie County, New York.
Early in the litigation, our office retained an accident reconstruction expert that proved that our client was not responsible for the collision and that the collision was solely cause by the plaintiff. Based upon police reports, measurements and surveillance, the expert was able to determine that the plaintiff exited his lane, crossed the center turning lane and drove into oncoming traffic, causing the accident. Our expert also found that our client did not have enough time to react to the plaintiff’s driving and could not have avoided the collision. We moved to dismiss the lawsuits filed against our client, and Justice Donna Siwek granted our motion.
The motion papers were authored and argued by Jonathan A. Emdin.
Benjamin Jackson Joins the Firm of Chelus, Herdzik, Speyer & Monte, PC
Buffalo, NY — February 8, 2019 — Chelus, Herdzik, Speyer & Monte P.C., today announces that Benjamin Jackson has joined the firm as an associate attorney. He will be working with the other members of the firm in handling the firm’s litigation files as well as other general practice matters.
A current resident of Lockport, New York, Mr. Jackson received his juris doctor in 2018 from the Duquesne University School of Law. In addition to his J.D., Mr. Jackson holds a Bachelor of Arts from University at Buffalo.
Mr. Jackson now joins with the other associates of Chelus, Herdzik, Speyer & Monte, P.C. in serving the legal needs of the Western New York Community.
Rodman Successfully Argues to Dismiss Claim against Town of Amherst
Buffalo, New York — November 2018 — In the matter of Kemper Services Group a/s/o Carl Galante v. Town of Amherst, the petitioner was seeking a petition to file a late notice of claim against our client, Town of Amherst.
This claim was brought over a year after the date of the accident, and well over the 90 day time limit an individual has to notice a claim against a municipality.
Petitioner argued there was no prejudice because the Town of Amherst had constructive and actual notice of the accident. Petitioner did not provide any excuse to the untimely filing.
On behalf of the Town of Amherst, we opposed the petition insisting there was prejudice in allowing an untimely notice of claim to be filed, as it was unable to exercise its right to conduct a discovery hearing pursuant to Gen. Mun. Law 50-h. Further, we used the decision in Tate v. State Univ. Const. Fund, 2017 NY Slip Op 05009 (4th Dep’t June 16, 2017) to successfully argue against petitioner’s petition. In Tate, the Fourth Department found the plaintiff failed to demonstrate a reasonable excuse for his failure to serve the notice of claim within 90 days of the claim’s accrual or within a reasonable time thereafter.
Here, the Court also found that without any reasonable excuse for the untimely filing and without the ability to engage in proper pre-discovery initiatives, there would be prejudice against the Town of Amherst, and dismissed and denied the petition to file a late notice of claim.
The opposition papers were authored and argued by Sarah N. Rodman.
BIG THINGS ON OCTOBER 25TH!
Monte and Rodman to Present on Updated NYS Sexual Harassment Laws
Coffee Connection with Chelus Herdzik Speyer & Monte
Buffalo, New York — October 2018 — Attorneys Rebecca Monte and Sarah Rodman will present on the updated New York State Sexual Harassment laws, which went into effect on October 9th, 2018.
Join the Cheektowaga Chamber of Commerce on October 25, 2018 at 8:00AM for an informative session on what your company or business needs to know to stay in compliance, how to effectively train your employees, and how to handle a situation of sexual harassment in the workplace.
Click the link below to reserve your seat!
Chmiel and Marriott Obtain Dismissal in Civil Suit Against Town of Amherst and a Police Officer
Buffalo, New York — July 2018 — In the matter of Keyontay Ricks v. Town of Amherst and Officer Thomas Brown, et al., the plaintiff sued the Town of Amherst and Amherst Police Officer, Thomas Brown alleging wrongful arrest and prosecution.
In 2004, Ricks was convicted of First Degree Robbery and felony Possession of Stolen Property as a result of his role in a theft that took place at a Rent-A-Center in the City of Buffalo. Ricks was sentenced to 20 years in prison and served 12 years of that sentence before obtaining a dismissal of the robbery conviction. (The conviction for Criminal Possession of Stolen Property was upheld.)
In defending the Town of Amherst and Officer Brown, we argued that there was an absolute defense to both claims in that there was probable cause for arrest at the time that it took place. This was proven not only by the facts surrounding the arrest, but by the fact that Ricks was eventually convicted of felony offenses.
On behalf of the Town of Amherst and Officer Thomas Brown, we moved to dismiss all claims brought by Ricks. On July 2, 2018, Justice John F. O’Donnell agreed with our arguments and dismissed the entire lawsuit against both the Town of Amherst and Officer Thomas Brown.
The motion papers were authored by Michael J. Chmiel and Eric W. Marriott. The motion was argued by Mr. Chmiel. If you have any questions regarding this motion, do not hesitate to contact our office.