Latest Decisions from the Appellate Division, Second Department
Ruling against 1875 Atlantic Ave development for alleged rent overcharges is upheld
In a recent decision, the Appellate Division, Second Department, upheld a Kings County Supreme Court ruling denying a motion to dismiss a class action lawsuit against 1875 Atlantic Ave Development, LLC. The lawsuit, brought by tenant Torel Bascom, alleges rent overcharges and violations of New York’s Rent Stabilization Law.
The case stems from accusations that the defendant, 1875 Atlantic Ave Development, LLC, improperly inflated registered rents by offering prorated discounts as one-time concessions, which allegedly resulted in rent overcharges. The plaintiffs claim these actions violated the Rent Stabilization Law and Code.
The Kings County Supreme Court previously denied the defendant’s motion to dismiss, finding sufficient grounds for the case to proceed. The defendant appealed, arguing that the evidence presented, including lease documents and affidavits, disproved the plaintiffs’ allegations.
The Appellate Division affirmed the lower court’s decision, stating that the defendant did not conclusively refute the claims. The court emphasized that a motion to dismiss should only be granted if the documentary evidence utterly refutes the plaintiff’s factual allegations, which was not the case here. The court further noted that the allegations, if proven, could demonstrate that the defendant breached the Rent Stabilization Law by failing to register the correct rents and manipulating the initial legal regulated rent. The case will proceed in the trial court.
– Bascom v. 1875 Atlantic Ave Development, LLC –
Kings County decision reversed in wedding injury case
In a decision from the Appellate Division, Second Judicial Department, the court reversed a previous ruling by the Kings County Supreme Court, denying summary judgment in favor of the defendant, Max Media & Art, LLC. This ruling revives the lawsuit filed by the estate of Arkadiy Gutkin, who was allegedly injured by a videographer at a wedding.
The incident in question occurred in August 2017 when Gutkin, attending his grandchild’s wedding, was knocked to the ground by a videographer employed by Max Media & Art. Gutkin later died of unrelated causes, prompting his estate to sue for damages related to the injury. Initially, the Kings County Supreme Court granted summary judgment to Max Media & Art, dismissing the complaint on the basis that any contact by the videographer was inadvertent and not actionable. However, the plaintiffs appealed the decision, arguing that there were factual disputes about the incident that warranted a trial.
The Appellate Division, in reversing the lower court’s decision, held that the defendants failed to prove they were not at fault. They highlighted testimony from a witness who saw the videographer back into Gutkin and the insufficiency of surveillance video and still photographs to conclusively negate this account. The court also noted that a reasonable juror could find that the videographer’s actions breached a duty of care owed to Gutkin, thereby creating triable issues of fact.
The case will now return to the lower court for further proceedings consistent with the Appellate Division’s findings.
– Gutkina v. Max Media & Art, LLC –
Appellate Division cancels notice of pendency in real estate dispute
The Appellate Division, Second Department, has overturned a Kings County Supreme Court decision, canceling a notice of pendency in a real estate contract dispute. The case, Mark Lasak Mallek v. Ian Felmine, involved an appeal by the defendant, Ian Felmine, against an order that extended the time for the plaintiffs to serve a notice of pendency and denied a cross-motion to cancel it.
A notice of pendency, also known as a lis pendens, is a legal notice filed in public records indicating that a lawsuit involving a claim on a specific piece of real property is pending, which can affect the property’s title, use, or ownership.
The dispute arose from a contract for the sale of real property, with the plaintiffs seeking to recover a down payment made under the contract. The plaintiffs moved to extend the time to serve the notice of pendency on Felmine, while Felmine sought to cancel the notice, arguing it was improperly filed.
The Appellate Division ruled in favor of Felmine. The court held that the complaint, on its face, sought only monetary damages and did not request relief that would affect the title to, possession, use, or enjoyment of the property. The court determined that the notice of pendency was not warranted under CPLR 6501, which requires that such a notice can only be filed when the judgment demanded would affect real property. As a result, the appellate court granted Felmine’s cross-motion to cancel the notice of pendency and denied the plaintiffs’ motion to extend the time to serve the notice as academic.
– Mallek v. Felmine –
Appellate Division reverses Kings County Supreme Court on school supervision case
The Appellate Division, Second Department, has reversed a Kings County Supreme Court decision, allowing a negligence lawsuit against Talmud Torah of Crown Heights, Inc., and Mill Basin Yeshiva Academy to proceed.
The lawsuit stems from an incident where an infant plaintiff allegedly tripped on a roadway defect near the school designated for student pick-up and drop-off. In the January 4, 2023 order, the Supreme Court had granted summary judgment in favor of the defendants, dismissing the complaint. The plaintiffs, the injured student and her mother, appealed the decision.
The appellate court found that there were triable issues of fact regarding whether the school released the student into a foreseeably hazardous setting they contributed to, thus failing to provide adequate supervision. The appellate court’s ruling reinstates the complaint against the schools, denying their motion for summary judgment.
– Levy v. City of New York –
Appellate Court dismisses key defenses in Brooklyn pedestrian injury case
In a ruling from the Appellate Division, Second Department, the court has modified a Kings County Supreme Court decision regarding a pedestrian injury case, Hartell v. Shaukat. The appellate court upheld the lower court’s denial of summary judgment on liability but reversed its decision on several affirmative defenses.
The case involves plaintiff Phoebe Fam Hartell, who was allegedly struck by a vehicle driven by defendant Waqar Shaukat while crossing the street in a crosswalk. Hartell sought summary judgment on liability and to dismiss several of Shaukat’s affirmative defenses. The Supreme Court, Kings County, denied Hartell’s motion, leading to her appeal.
The appellate court ruled that the Supreme Court correctly denied summary judgment on the issue of liability due to conflicting accounts of the incident. Shaukat claimed the pedestrian signal was red and that Hartell walked into his vehicle, raising factual disputes that need resolution.
However, the appellate court found that the Supreme Court erred in not dismissing Shaukat’s affirmative defenses related to assumption of risk and the emergency doctrine, among others. The court concluded that these defenses were inapplicable or unsupported by the circumstances of the case.
– Hartell v. Shaukat –
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