Municipal Law Update March 3, 2021
Loftus Successful at the Fourth Department
Buffalo, NY — November 17, 2020 —The Fourth Department recently upheld a lower court’s decision which dismissed the plaintiff’s complaint in DeMaioribus v. Town of Cheektowaga. Attorney Kevin Loftus representing the Town of Cheektowaga argued that the stairway on which the plaintiff slipped and fell was covered by the Town’s prior written notice requirement. Plaintiff’s attorney tried to argue that prior written notice did not apply as the area was more of an “entrance way” to the building instead of a stairway. The Fourth Department rejected that argument and agreed with attorney Loftus’ position that this particular step of the stairway acted as the functional equivalent of a sidewalk for purposes of the defendant’s prior written notice requirement. Associate Nicholas Hriczko assisted with preparing the Appellate briefs.
Speyer and Roa Successful on Summary Judgment in Premises Liability Lawsuit
Buffalo, NY — November 2020 —In the matter of Bailoni v. Ulta Salon, Cosmetics & Fragrance, Inc., et al, plaintiff brought a lawsuit against Ulta Salon after an employee of one of the salon’s in-store vendors accidently bumped into her while turning around, causing her to fall to the ground. Plaintiff argued that Ulta should be held liable because Ulta was under a duty to control the actions of those on its premises. Plaintiff also argued that the property owner, Ulta, created a dangerous condition on the premises by placing a display sign in the aisle where the accident occurred, thereby making the walkway dangerously narrow.
In their motion papers, Speyer and Roa argued that Ulta had no legal obligation to control the conduct of the individual that bumped into the plaintiff because, among other things, Ulta did not train, hire or supervise the him and, therefore, lacked any opportunity to control his conduct. They also argued that even if Ulta had an obligation to control the conduct of the individual, New York Law imposes no legal obligation on property owners to prevent those on their property, including their own employees, from bumping into customers while making unannounced changes in body position, i.e., turning around. Lastly, they argued that the condition of the aisle where the accident occurred was open and obvious and that there was nothing inherently dangerous about the aisle or the placement of the sign in the aisle.
After considering these arguments, the Honorable Donna M. Siwek agreed with all three of our arguments and dismissed the plaintiff’s complaint in its entirety. The summary judgment motion was written by Dominick F. Roa and argued by Thomas J. Speyer.
If you have any questions regarding this matter, please contact Mr. Speyer at tspeyer@cheluslaw.com or Mr. Roa at droa@cheluslaw.com.
Chmiel Successful in Affirming Trial Verdict for Allstate
Buffalo, NY — October 7, 2020 — In the matter of Brenda J. Barnett v. John DiSalvo, staff counsel for Allstate Insurance had previously secured a dismissal of all claims against its client after a trial before the Honorable Paul Wojtaszek in 2019.
Specifically, the plaintiff had previously testified that she slipped on snow and ice on the stairs leading to the defendant’s pizzeria. However, at the time of trial, she wanted to have an expert testify that the fall was also caused or exacerbated by alleged deficiencies with the height of the risers on the stairs.
Staff counsel convinced Justice Wojtaszek to bar this testimony. Later, the jury returned the dismissal in Allstate’s favor.
On appeal, we argued to the Appellate Division, Fourth Department that Justice Wojtaszek was correct in barring this expert testimony on the basis that it would have been contradictory to the plaintiff’s own sworn testimony. In other words, the plaintiff should not have been able to bring in expert testimony when she clearly testified that the only reason she fell was due to the alleged presence of snow and ice.
In a unanimous decision, the Appellate Division, Fourth Department agreed with our arguments and affirmed the decision of Justice Wojtaszek, along with the jury verdict. The appeal was written by firm member, Michael J. Chmiel, Esq.
If you have any questions regarding this matter, please contact Mr. Chmiel at MChmiel@cheluslaw.com.
Marriott and Loftus Win at Court of Appeals
Buffalo, NY — February 28, 2020 — In the matter of Battaglia v. RD Trucking and Transportation, Inc., our attorneys successfully argued on behalf of the defendant before the New York Court of Appeals, which is the highest court in the state.
By way of background, this matter involved a slip-and-fall accident in 2014. Our client, RD Trucking and Transportation, Inc., was the snowplow contractor for the property where the plaintiff was allegedly injured.
We originally moved to dismiss the case on the basis that there was a “storm in progress” at the time of the plaintiff’s accident. That motion was denied by the trial court judge on the basis that, although there was a “storm in progress” at the time, it was not established that the “storm in progress was the cause of the plaintiff’s injuries.
After the trial court’s decision, we brought an appeal before the Appellate Division, Fourth Department seeking to overturn the court’s ruling. There, we successfully argued that there was indeed a “storm in progress” at the time of the plaintiff’s alleged accident. We further established that plaintiff’s expert failed to demonstrate that there was “preexisting ice” which actually contributed to the fall.
Because the Appellate Division had two dissenting judges against the majority opinion, the plaintiffs were afforded an automatic right to appeal to the New York Court of Appeals. There, the highest court in New York affirmed the decision of the Appellate Division, Fourth Department, thus dismissing the case in favor of our client.
The Appellate briefs were written and argued by our member, Kevin Loftus, as well as our associate, Eric Marriott.
Cercone Wins Appeal Regarding the Handling of Dogs
Buffalo, NY — February 5, 2020 —In the matter of Brady v. Contangelo, the plaintiff was walking her leashed dogs when she encountered our client, who was walking from the opposite direction and also leading a dog on a leash. While attempting to pass one another, the leashes became tangled, and the plaintiff fell down, allegedly causing injuries.
It is long standing law in the State of New York that, for there to be liability for an injury caused by a domesticated pet, the plaintiff must establish that the animal had “vicious propensities”. Barring that, there is no cause of action in New York for the “negligent handling of domesticated animals”. In other words, where the accident is caused by the volitional conduct of an animal who otherwise has no “vicious propensities”, there can be no liability.
Plaintiff’s attorney alleged that the accident was not actually caused by the animal’s “volitional conduct”, but by the allegedly negligent fashion in which the defendant himself was handling the leash.
Before the Appellate Division, Fourth Department, our associate, Daniel Cercone, successfully argued that New York does not recognize this novel argument as a cause of action, and that the case should be dismissed.
Mr. Cercone also authored the appellate brief, along with Michael J. Chmiel. If you have any questions regarding this case, do not hesitate to contact our office.
Dominick F. Roa Joins the Firm of Chelus Herdzik Speyer & Monte PC
Buffalo, NY — November 22, 2019 — Chelus Herdzik Speyer & Monte PC, today announces that Dominick Roa has joined the firm as an associate attorney. Mr. Roa 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 Tonawanda, New York, Mr. Roa earned his juris doctor from the University at Buffalo School of Law in 2019. While there, he participated in the Charles S. Desmond Moot Court Competition and Albert R. Mugel National Tax Moot Court Competition. He was a semi-finalist in the ERISA Employee Benefits Moot Court Competition, and an eboard member of Phi Alpha Delta Law Fraternity.
Dominick Roa completed his undergraduate studies at Buffalo State University in 2015 with a B.S. in criminal justice with Dean’s List Honors.
Daniel J. Cercone Joins the Firm of Chelus Herdzik Speyer & Monte PC
Buffalo, NY — July 22, 2019 — Chelus Herdzik Speyer & Monte PC, today announces that Daniel Cercone has joined the firm as an associate attorney. Mr. Cercone 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 Buffalo, New York, Mr. Cercone earned his juris doctor from Michigan State University College of Law in 2018.
Daniel attended Syracuse University where he graduated magna cum laude in 2015 with a B.A. in political science & English and textual studies from the College of Arts and Sciences. He also minored in management studies.
In addition to being conversational in German, Mr. Cercone is a beginner in Swedish. He has been involved in the Boy Scouts of America and earned the Eagle Scout Rank.
Mr. Cercone now joins with the other associates of Chelus Herdzik Speyer & Monte PC in serving the legal needs of the Western New York community. Daniel will work with the firm at its downtown office at the Main Court Building, 438 Main Street, Tenth Floor, at Lafayette Square, as well as practicing at the firm’s branch office at 2448 Union Road in Cheektowaga.
Jonathan Emdin Presented “Know Your Rights” to Students at Niagara Falls High School
Buffalo, NY – June 12, 2019 — Attorney Jonathan Emdin together with the Minority Bar Association of WNY and MBAWNY President Brittany Jones presented “Know Your Rights” to students at Niagara Falls High School on June 12, 2019. The “Know Your Rights” presentation focused on helping young adults understand and safely navigate encounters with law enforcement. The presentation also focused on understanding one’s rights when interacting with law enforcement, which included discussions on searches and seizures of persons, homes and automobiles. The presenters also discussed U.S. Constitutional law /4th Amendment, New York criminal procedure, and understanding what to do and not to do when stopped by law enforcement. The presenters also discussed the legal profession and the MBAWNY’s focus on promoting diversity in the profession.
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.