| Constrution Litigation |
| APPELLATE COURT DISMISSES COMPLAINT! |
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In Sheehan v. Gong, the First Department reversed a Supreme Court Bronx County decision which denied defendant's motion for summary judgment in a labor law case. The plaintiff's complaint was dismissed in its entirety. The Appellate Court found that 1) the house was being renovated from a 3 family to a 2 family, and thus, the homeowner's exemption applied, and 2) there was no common law negligence because plaintiff did not prove that the defendant furnished plaintiff with the ladder.
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December 2003 |
| Sharing the Knowledge With Insurance Professionals |
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DRI’s magazine, For the Defense, published Salvatore DeSantis’ article on defense ethics and professionalism in its November issue. The article focuses on the key goal of all claims handlers, the reduction of the number of pending files through efficient case resolution. If you would like a copy of it, please contact us. For more information on DRI, the national organization of defense trial lawyers and corporate counsel, visit their website at www.dri.org.
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| Memberships & Affiliations |
| Alice Spitz was elected to membership into the American Board of Trial Advocates, ABOTA. To qualify for membership into ABOTA, a lawyer must first have tried 20 civil jury trials to a verdict, be invited by his or her peers to join, and evidence high personal character, honorable reputation, and proficiency as a trial lawyer. The purpose of ABOTA, in addition to furthering professionalism in law, is to protect the constitutional right of trial by jury and our system of justice. |
November 2003 |
| Premises Liability Litigation |
| Case Dismissed! |
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Martin J. Semel Motion for Summary Judgment was granted by Justice Hubsher, Supreme Court, Kings County. The plaintiff alleged that while attending a wedding reception in the lunchroom of the defendant's religious school, he fell on a wet floor. The defendant contended it allowed a caterer to use its lunchroom in return for it providing breakfast and lunch to its students, and that it did not have anything to do with the catering activities. The unwitnessed fall occurred at midnight. The school porters did not work after 5:00 p.m. The plaintiff testified he did not know how it came to be that there was water on the floor or for how long it had been there. Horowitz v Talmud Torah Ad Asueria.
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| Environmental Litigation |
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Alice Spitz will be participating in Mealey’s National Lead Litigation Conference to be held in Boston, October 16-17, 2003. She will be speaking about jury selection in lead paint cases. Lead litigation is still evolving and changing and now is the perfect time to get authoritative updates on the latest litigation news, medical discovery, and trial strategies involved. For a complete conference agenda and to register if you plan to attend, click here.
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October 2003 |
| Appellate Court Upholds Our Defense Verdict! |
| Construction Litigation |
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In Bruder v. 979 Corp., following Salvatore DeSantis' obtaining a jury verdict for the defense, the plaintiff appealed to the Appellate Division, Second Department, on the sole issue of the trial court’s alleged error in determining that the case was not a Labor Law case under Labor Law §241(6). The Appellate Division held that the plaintiff’s fall on a staircase leading to the work site was not a “passageway” within Labor Law §241(6), and unanimously affirmed the verdict in favor of our client.
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| Yet Another Bronx Case Dismissed! |
| Premises Liability |
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In a Bronx County Supreme Court action, the plaintiff claimed that while descending the stairs in our clients’ multiple dwelling, she fell due to a defective step resulting in a traumatic miscarriage and subsequent psychiatric issues requiring extensive therapy. The accident was unwitnessed and unreported to the resident superintendent. Sued in addition to the corporate owner was its president and managing agent. In moving for summary judgment, the defendants relied on photographic exhibits, which the plaintiff identified as showing the step, and her deposition testimony in which she denied having seen the step prior to or after the fall. In granting summary judgment, the court found that the affidavit submitted by the plaintiff was predicated on mere surmise and that, as a matter of law, the defendants established that they did not breach any duties owing to the plaintiff. Given the venue and the emotional nature of the alleged injuries, particularly in this childless married woman, it is most unlikely the jury would have found in favor of the landlord. Batista v Furgiuele.
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| Another Bronx Case Dismissed! |
| Motor Vehicle Litigation |
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Justice Crispino of the Supreme Court, Bronx County, granted Julie E. Molod's motion for summary judgment and dismissed the case against our client, a defendant involved in a multi vehicle car collision. She demonstrated that our client’s vehicle was struck in the rear after a multi car pile up. Co-defendant tried to argue that our client made an illegal u-turn prior to the incident, but the Court found that statements about an improper u-turn did not raise a triable question as to whether such a turn was a proximate cause of the collision. Espinal v. Fordham.
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| Bronx Case Dismissed! |
| Motor Vehicle Litigation |
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On September 9, 2003, Justice Yvonne Gonzalez issued an order granting summary judgment pursuant to CPLR Section 3212, dismissing the plaintiffs’ complaint and all cross-claims against our client. The decision notes that our client’s vehicle was the middle car in a three car collision. It was undisputed that our client’s vehicle was stopped behind the plaintiff’s vehicle when it was struck in the rear by a vehicle operated by co-defendant. As a result of the collision, our client’s vehicle was propelled forward into the plaintiff’s vehicle. The Court adopted our argument, noting that a “rear end collision with a stopped automobile creates a prima facie case of liability with respect to the operator of the moving vehicle, imposing a duty of explanation on the operator”. The Court further noted that counsel for co-defendant failed to come forward with a non-negligent explanation for the rear end collision. Rodriguez v. Blanco.
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| Sharing The Knowledge WIth Insurance Professionals |
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Milton Thurm recently attended the annual Excess/Surplus Lines Claims Association Conference in Rancho Bernardo, California. He presented the applicable law regarding exposure to excess policies when primary carriers fail or refuse to settle claims within their policy limits. His remarks were made in conjunction with a presentation to the group by the Federation of Defense and Corporate Counsel.
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September 2003 |
| Sidewalk Liability Shifted to Landlords Due to Change in New York City's law! |
On August 21, 2003, Frederick Molod and Salvatore DeSantis gave a presentation to Guide One Insurance Company on New York’s Labor Law, as well as on New York City’s new law which shifts liability for sidewalk accidents from the City to abutting landowners. A recently enacted amendment to the Administrative Code of The City of New York will, in all likelihood, significantly impact the number and type of sidewalk claims to be expected after September 2003. The new law, Int. No. 193, can be read here. A companion statute, Int. No. 522, also requires abutting landowners to maintain liability coverage for such injuries, but the amount of such coverage is not specified. We shared our thoughts with Guide One Insurance Company about preparedness on these issues. If you think a personal visit to your claims and/or underwriting department would be valuable, or that a video or telephone conference would be of assistance, please fill out our Contact Us form. |
| Defense Verdict in Bronx County! |
| Motor Vehicle Litigation |
This case was tried by Irwin Miller before Justice Anne E. Targum. The Bronx jury returned a unanimous verdict in favor of the defendants and found that plaintiff, Adrian Colon, had not sustained a significant limitation of use of a body function or system pursuant to New York Insurance Law Section 5102(d). Trial testimony included the drivers of both vehicles and a passenger in the adverse car, as well as expert doctors for the defense. Colon v. Vasquez. |
Are Excess Insurers' Claim Representatives from Venus & Primary Insurers' Claim Representatives from Mars? The War Between The Layers |
Milton Thurm and Sean P. King have written the above titled article in the current issue of Declarations, a publication of the Excess/Surplus Lines Claims Association. If you’d like a copy of the article, please fill out our Contact Us form. |
| Federal Court Mediator |
We are pleased to announce that Frederick Molod has just received a plaque from the United States District Court for the Southern District of New York in appreciation of several years of service as a Mediator. He had been asked by the Court to serve in that capacity as part of a special program of the Federal Court. His success rate at achieving settlements is very noteworthy. |
August 2003 |
| Motor Vehicle Litigation |
| Case Dismissed! |
Justice Nelson S. Roman of Supreme Court, Bronx County, granted a motion for summary judgment made by Julie E. Molod and dismissed the complaints of all four plaintiffs in a motor vehicle accident. Justice Roman held that all four plaintiffs failed to meet the “serious injury” threshold as defined by New York State Insurance Law §5102(d). Polidura v. Vargas. If you would like a copy of the court’s decision, please fill out our Contact Us form. |
| Insurance Coverage |
| Case Dismissed! |
On July 8, 2003 Victor N. DeGeorge convinced the trial judge in the First District Court, County of Suffolk, to dismiss the subrogation claim brought against a tow truck company. The Court found that the tow truck company relinquished control of the subrogor’s motor vehicle to the repair shop and was therefore not liable when the car was stolen. State Farm a/s/o Schmieder v. Eddie’s 24 Hour Towing Service. |
July 2003 |
| Defense Verdict! |
On June 27, 2003, Salvatore DeSantis got a defendants’ verdict in Supreme Court, Nassau County, in a case where plaintiff, a patron in a nightclub, fell off a raised platform. Plaintiff, a 34-year old St. John’s graduate with a CPA, sustained a skull fracture to the left side of her head, loss of consciousness, and vertigo for which she will permanently require medication to control. Plaintiff was hospitalized for 8 days at New York Hospital, Cornell Division. It was claimed that the nightclub was negligent for allowing plaintiff to dance on a 4 x 6 foot raised platform and for failing to provide proper protection. Petaja v. Die Fliedermaus. |
| Defense Verdict in Bronx County! |
In a “he said/she said” case involving causes of action for negligence and assault, with significant exposure directly to the client, Irwin D. Miller obtained a defense verdict from a Bronx jury in Pentheny v. Chiverton on June 20, 2003. Plaintiff was the estranged wife of the defendant, claiming she fell and/or was pushed down the stairs of defendant’s apartment building, allegedly sustaining herniated cervical discs at C3/4, C4/5, C5/6 and C6/7. Against a demand of $800,000, no offer was made. The Court dismissed the negligence cause of action at the close of plaintiff’s case, only submitting the intentional assault and battery cause of action to the jury. For more details, contact Irwin D. Miller. |
| No-Fault Representation |
On June 5 2003, Frederick M. Molod partnered with the New Jersey Harmonie Group firm of Margolis Edelstein and our friends at Cunningham Lindsey to give a presentation to Tokio Marine adjusters on the procedural pitfalls involved in handling New York no-fault claims. If you’d like us to make a presentation to assist your claims department in the successful handling of such cases, please fill out our Contact Us form. |
June 2003 |
| Sharing the Knowledge With Insurance Professionals |
On May 2, 2003, Salvatore DeSantis and Milton Thurm were pleased to participate in a mock trial at the annual ELANY (Excess Line Association of New York) meeting to demonstrate the unique legal intricacies, nuances, expenses and duration of New York construction injury cases to insurance professionals. Salvatore DeSantis, acting as plaintiff’s counsel, presented plaintiff’s case, while Mr. Thurm defended the owner/general contractor. Mr. Thurm also ‘played the role’ of counsel for the owner/general contractor’s liability carrier. In this case, the audience was the winner when they walked away with a new perspective and CE and CLE credits besides. To learn more about ELANY, visit: www.elany.org. |
| Motor Vehicle Litigation |
| Case against Auto Leasing Franchisor-Licensor Dismissed! |
A lawsuit with substantial exposure was dismissed as against our clients, Rent-A-Wreck of America. Inc., and Bundy American Corporation, licensor for the nationally known chain of rental vehicle agencies, in the case of Gililov v. Southern Auto Rental, Inc., et al. (Supreme Court, Kings County).
On a Motion for Summary Judgment, Andrew M. Harrison successfully argued that neither the franchisor-licensor nor its parent could be considered “owners” under New York’s Vehicle and Traffic Law Section 128, and thus could not be held vicariously liable, under Vehicle & Traffic Law Section 388, for the rental car driver’s negligence. Additionally, pointing out that the individual franchisee-licensee rental agency alone owned, maintained and serviced the vehicles it rented out, the Court adopted our analysis that the franchisor-licensor’s minimal administrative requirements under the applicable Licensing Agreement did not constitute substantial control of the rental agency’s regular operations sufficient to deem the franchisor an “alter ego” of the rental agency. The nine year-old plaintiff had sustained fractures of both legs. After eight years of litigation against the franchisee, plaintiff’s counsel impleaded the franchisor-licensor and its parent holding company, and took a default against them. It was at that point that we were retained. Mr. Harrison successfully moved to open up the default, and obtained the necessary discovery on an expedited basis, to file the successful summary judgment motion. |
| Membership & Affiliations |
Alice Spitz attended the tri-annual Harmonie Group Meeting in Dallas, Texas. This meeting of the insurance industry and the Harmonie Group network included representatives from insurers and self-insured corporations. A special guest speaker from Southwestern Insurance Information Service presented on the state of the insurance industry. For additional information on the Harmonie Group, please fill out our Contact Us form.
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May 2003 |
| Motor Vehicle Litigation |
| Another One Bites the Dust! |
Jennifer B. Graham was successful in getting a Kings County lawsuit dismissed upon her showing to the Court that the plaintiff failed to meet the threshold for “serious injury” under the New York State Insurance Law. Johnson v Ward Trucking Corp, Edward A. Freed and Khary Williams. If you’d like a copy of the Court’s decision, please fill out our Contact Us form. |
| Premises Security Litigation |
| Why Go to Trial Against MSD? |
A two week trial before Judge Norma Ruiz in Supreme Court, Bronx County, involved a 24 year old woman who fell down stairs which were under construction, and sustained a tri-malleolar fracture of the ankle. She underwent open reduction, internal fixation, a second operation to remove the hardware and two separate extensive courses of physical therapy. The Bronx jury’s verdict for past pain and suffering came in at the exact amount of the pre-trial offer and they accepted Alice Spitz’ argument that plaintiff was healed, as reflected in their failure to award future damages. Traverso v. Ten Seventy One Home Corp. |
April 2003 |
| Premises Security Litigation |
| Case Dismissed! |
New York Judge Marcy Friedman granted Salvatore J. DeSantis' Motion for Summary Judgment and dismissed plaintiff’s slip and fall accident as against our client, who built the sidewalk bridge at the site of the accident. Judge Friedman found that the testimony Mr. DeSantis presented, that the sidewalk bridge was constructed without the use of heavy machinery, persuasively argued against such construction causing defects to the sidewalk. If you’d like a copy of the Court’s decision, Kaiser v. Seven Thirty One v. JTG & Son Scaffolding, please fill out our Contact Us form. |
| We're Growing! |
MSD is pleased to announce that Sean P. King has joined our firm this month. Mr. King has more than 12 years experience in insurance defense, previously as counsel for Aetna and Travelers. He is a seasoned trial attorney and he will enhance our litigation practice in all phases of construction related litigation, including personal injury matters, indemnification issues, consequential property damage, design defect and negligent construction. His experience includes cases involving both commercial and residential construction projects, pre-fabricated concrete tunnel sections, GFRC panel installation, pile driving, sheet driving, pipe jacking, site excavation, rigging, window installation, condominium construction and owner suits, general residential construction, water proofing, fire proofing, concrete pumping operations, fire losses, and subrogation. |
March 2003 |
| Premises Security Litigation |
| Slip and Fall Plaintiff Tripped Up! |
MSD Partner Andrew M. Harrison Motion for Summary Judgment convinced plaintiff to discontinue her snow and ice claim against our university client in the case of Candelaria Mateo v. City of New York, Yeshiva University, Winifred and Charles Price. Mr. Harrison successfully argued that the plaintiff could not prevail on either a pavement defect or a snow and ice theory based upon his analysis of the testimony and photographs. Nor could Yeshiva University be held on a ‘special use’ theory or an increasing the hazard theory. |
| Case Dismissed! |
In Griffith v. National Amusements, Inc., the plaintiff was shot following his exiting of a movie theatre by random gunmen. He claimed that the theatre was in a high crime area and should have had guards around the exterior and parking area when movies let out. The court granted the MSD Motion for Summary Judgment, holding that the defendants are not responsible for guarding against a random crime outside the theatre. |
February 2003 |
| MSD Attorney Hard at Work One Day, Creates Miracle the Next |
MSD Associate Jennifer B. Graham felt well enough to work up until the very last day before she gave birth. We’re so happy to announce that Jennifer gave birth to her first child, a healthy baby boy, on January 16, 2003 at 11:15 a.m.! |
January 2003 |