U.S. District Court, Western District of New York Case Summaries:

Daily Record (Rochester, NY), Aug 28, 2008

U.S. District Court, Western District of New York

Negligence

Faulty Installation

U.S. Fidelity and Guaranty Insurance Co. v. Jim's Electric and General Contracting Inc.

05-CV-440

Judge Arcara

Background: The magistrate judge recently filed a report recommending defendant Jim's Electric and General Contracting, Inc.'s motion for summary judgment be granted. The plaintiff, U.S. Fidelity and Guaranty Insurance Co., is the subrogee of 451 Elmwood Ave. Inc., a property known as the restaurant Nektar, which sustained damages in a fire on May 16, 2004. The fire originated within the flue for the wood-fired pizza oven and the flue was neither installed in accordance with manufacturer specifications nor inspected or cleaned as frequently as recommended by the manufacturer. Jim's Electric and General Contracting was involved in both phases of the renovation of 451 Elmwood Ave. into Nektar. The main allegation against the defendant is that "he had a duty to avoid the installation of the chimney pipe near combustibles, and avoid improper roof design, nor did he coordinate and inspect all portions of the work as required by a general contractor."

Ruling: As there was no evidence in the record that the defendant's work contributed to the cause of the fire, the magistrate's report found summary judgment should be granted in favor of the defendant. The court adopts the recommendation and the motion is granted.

Robert C. Sheps for the plaintiff, and Gerard E. O'Connor of Lippman O'Connor for the defendant

Indian Gaming

Citizens Against Casino Gambling in Erie County v. Hogen

07-CV-0451

Judge Skretny

Background: On July 8 the court issued a decision and order on all motions pending in the case and entered a final judgment vacating the National Indian Gaming Commission's approval of the Seneca Nation of Indians' June 9, 2007 Class III Gaming Ordinance. The plaintiffs filed a motion for an order enforcing the judgment and the defendants filed a motion to amend the judgment to include a remand to the chairman of the National Indian Gaming Commission. The plaintiffs want the court to fashion an order for the permanent closure of the Seneca Nation of Indians' gambling casino located on a 9.5-acre site in downtown Buffalo.

Ruling: The plaintiffs' request for the court to enforce its order is granted to the extent that the NIGC and its chairman are directed to carry out their congressionally-mandated enforcement duties under the IGRA. The motion is denied to the extent that the plaintiffs' request is for an order that would divest the NIGC of its discretion to determine the type of enforcement action to take. The defendants' motion is denied.

Cornelius D. Murray of O'Connell & Aronowitz PC et al. for the plaintiffs, and Gina Louise Allery, U.S. Department of Justice, for the defendants.