CHRIS COLEMAN CLAIMS VICTORY
Plaintiff filed a lawsuit against our client and claimed that he tripped and fell on the interior stairs leading to the basement of our client’s synagogue in 2013. Plaintiff claims to have suffered a left tricep tear requiring surgical repair. After plaintiff was unable to identify the cause of his fall during his deposition, Molod Spitz & DeSantis, P.C. filed a Motion for Summary Judgment and argued that any finding of negligence would be based on speculation, and that an engineer opined that the steps met the requirements of all applicable codes. After oral argument by Christopher Coleman in Kings County Supreme Court on October 14, 2016, Judge Genine D. Edwards ruled from the bench that plaintiff failed to provide a material issue of fact, and provided no proof of negligence, and granted our motion. Plaintiff appealed and, on March 21, 2018, the Appellate Division, Second Judicial Department, affirmed the Supreme Court’s decision with costs to be paid by plaintiff.
Gani v. Avenue R Sephardic Congregation [Kings Supreme index no. 5769/13]
YOU CANNOT HIDE FROM MOLOD SPITZ!
The New York Court of Appeals has now decided the issue of the right of defendants to discover plaintiff’s’ Facebook profiles, regardless of privacy settings, when they demonstrate that the postings are material and relevant, and stressed that the words “material and necessary” are to be interpreted liberally. In Foreman v. Henkin, 2018 NY Slip Op 01015 (February 13, 2018), plaintiff alleged that she was injured when she fell from a horse owned by defendant and suffered spinal and traumatic brain injuries resulting in cognitive deficits, memory loss, difficulties with written and oral communication, and social isolation. Plaintiff testified that she had previously posted several photographs showing her pre-accident active lifestyle, but that she deactivated the account about six months after the accident. She further claimed that she had become reclusive as a result of her injuries, had difficulty using a computer, and composing coherent messages.
To continue reading please see Mary Dolan’s Article on the matter, Click Here! Forman v Henkin, 2018 NY Slip Op 01015 (February 13, 2018)
VICTORY FOR CHRIS COLEMAN
Plaintiff claims that she tripped and fell on the stairs leading to the entrance of our client’s property in 2010, and filed suit against our client in 2011. Plaintiff claims to have suffered two tears to her medial meniscus in her left knee requiring partial medial and lateral meniscetomies. Plaintiff’s employer (the New York City Housing Authority) asserted a lien of over $108,000, and plaintiff demanded $175,000 to settle the case. After motion to compel in April 2012, January 2014 and December 2014, Judge Laura Douglas ordered plaintiff to provide outstanding discovery or be precluded from offering any testimony at trial. After plaintiff failed to comply with Judge Douglas’ order, dated April 9, 2015, we served a proposed order of preclusion which was signed by Judge Mitchell J. Danziger on April 1, 2016. We filed a Motion for Summary Judgment on October 17, 2016. On January 11, 2018, Judge Elizabeth Taylor granted our motion and found that plaintiff is unable to establish a prima facie case, based on the order of preclusion.
Moorer v. 90 Laurel Hill Associates, LLC, et al. [Bronx Supreme index no. 309924/11]
NEWEST PARTNER VICTORY
MSD Partner, Robert Von Hagen, recently won summary judgment in an odd case involving the plaintiff’s alleged burn injuries. Our clients, which owned and operated a non-profit homeless shelter, were sued by one its homeless clients after he suffered a seizure while seated on the toilet within his assigned apartment. The seizure caused him to fall to the floor and involuntarily lock his feet around an exposed portion of his apartment’s steam heat riser. His feet remained locked around the pipe for a prolonged period of time and essentially melted away the contacting skin as a result.
We argued that our clients could not be liable for the event because it was caused by an unforeseeable medical emergency, not any hypothetical negligence on the part of the client or its staff. It was simply not foreseeable that any person would come into prolonged contact with a known hot surface nor was it foreseeable that plaintiff would suffer a seizure. We also argued that NY’s 1968 Building Code requiring landowners to insulate such pipes did not apply because the building at issue was constructed in 1906. Thus, the building was “grandfathered” under the older Building Code which did not mandate pipe insulation. Plaintiff argued that the pipe should have been insulated, but the Court agreed that the unforeseeable seizure was the operative event that severed any causal relationship between the injuries and any possible negligence by the defendant. The case was dismissed. Ingram v. Bronx Apartments LLC & Samaritan Village, Inc., ( Sup. Ct. Kings County, Judge A. Borrok, Index No: 10727/2014).
DOUBLE WIN FOR THE DEFENSE!
Plaintiff claimed he slipped and fell on ice while leaving his west side luxury apartment near Lincoln Center. He claimed the ice was invisible although left over from an earlier storm. His injuries included a fractured patella with open reduction and internal fixation and C3-4 laminectomy. The motion for summary judgment by Molod Spitz & DeSantis based primarily on a storm-in-progress defense was denied by the lower court. An appeal was filed and while the appeal was pending, the lower court set the case for trial. Salvatore J. DeSantis and Robert Von Hagen tried the case and the jury agreed that the luxury apartment building’s staff did not proximately cause the accident.
Following the defense verdict, the Appellate Division heard oral argument on the earlier motion for summary judgment and reversed the lower court, dismissing the case, holding that the defense provided ample evidentiary support that there was a storm in progress at the time of the accident. Case dismissed twice in one month!
ANDY ABREU v. NEW ROCK FEC, LLC AND FUNFUZION
MSD facilitated a victory for the recreation industry in Supreme Court, Bronx County. Our client, FunFuzion, operated an indoor go-kart track and was granted Summary Judgment by Justice Wilma Guzman in her Decision and Order dated October 12, 2017.
Plaintiff’s lawsuit alleged that while she was operating a go-kart at our client’s facility, she was rear-ended by another go-kart when her kart began to shake and came to an abrupt stop. She asserted that FunFuzion did not maintain the kart and that it mis-used the “master control switch” to stop the other carts from moving while her kart was malfunctioning.
Andrew Small demonstrated that “bumping” was a risk of the activity, and that the maintenance records showed Plaintiff’s kart was repaired less than two (2) weeks before the accident and had no operational issues from that point forward. Further, Plaintiff had complete control over the steering, acceleration and braking, despite her testimony and claims to the contrary.
In addition to adopting the defense’s argument that “bumping is a risk of the activity,” Justice Guzman also noted that contact between go-karts during a race is a “commonly appreciated risk” of go-karting. Consequently, the track operator does not have a duty to prevent bumping.
Congratulations to Robert A. Von Hagen and Mary Dolan on their admission at the Eastern District of New York!
SUMMARY JUDGEMENT WIN IN CONSTRUCTION DEFECT CLAIM
MSD partner David B. Owens obtained summary judgment on behalf of our client in a construction defect case in which the County of Nassau sought $20,000,000.00 in damages arising out of the construction of a natatorium in Eisenhower Park for the Goodwill Games. The County sued the State of New York and several of its agencies, and numerous contractors, including MSD’s client, claiming breach of contract and negligence in the design, construction, installation and maintenance of the natatorium in general, and in the air handling units purchased from our client. All claims were dismissed upon the Court’s determination that there was no evidence of any viable claim against our insured.
JUSTICE RICHARD BRAUN GRANTS SUMMARY JUDGMENT IN FAVOR OF MSD CLIENTS
Justice Richard Braun granted summary judgment in favor of Molod Spitz & DeSantis, P.C.’s clients 132 East 35th Street Owners Corp. and Midboro Management Corp., dismissed the complaint against them, and also declared that they are entitled to contractual indemnification for their defense costs from co-defendant PCGNY Corp. (PCGNY).Plaintiff claims that he tripped on a raised edge of a Masonite board on the floor of the service elevator in the building owned by 132 East 35th Street Owners Corp. and managed by Midboro Management Corp. (defendants). PCGNY was a roofing contractor working in the building at the time of the alleged accident. The Court found that Chris Coleman presented a prima facie showing of their entitlement to summary judgment based on testimony from the building manager that they did not create or have notice of the alleged dangerous condition, and that the plaintiff and PCGNY failed to raise an issue of fact to the contrary.
The Court found that the contract between the defendants and PCGNY obligated PCGNY to protect the elevator floor and residents from personal injury, and that the contract provides for PCGNY to indemnify and defend the defendants for claims arising out of the contracted work. On this issue, The Court found that defendants also made prima facie showing of their entitlement to summary judgment based on the uncontradicted testimony from the building manager that PCGNY put down the Masonite board in the service elevator and that no one else would have done so. In opposition, PCGNY failed to raise an issue of fact to the contrary.
The Court denied PCGNY’s cross-motion for summary judgment and found that PCGNY failed to come forward with prima facie evidence that it did not cause or create the “dangerous condition” of laying down a Masonite board that bulged, or failed to replace or tape down the board after it bulged.
Jeffrey J. Bendavid v. PCGNY Corp., Midboro Management Corp., and 132 East 35th Street Owners Corp., 104239/12, NYLJ 1202786692382, at *1 (Sup., NY, Decided May 15, 2017).
SITE VISIT & CAREFUL READING OF CLIENT LEASE LEAD TO EARLY DISMISSAL OF SNOW/ICE SLIP & FALL CASE
The mission of our client, South Bronx Overall Economic Development Corporation (‘EDC’) is to improve the lives of South Bronx residents by providing various social services to the community.
The EDC and its landlord were sued in Supreme Court, Bronx County, by plaintiff for her alleged injuries, including a broken forearm that was surgically repaired, arising out of a slip and fall on the adjacent sidewalk. The plaintiff claimed that snow/ice along the sidewalk was not properly cleared.
Photographs taken at the site by our office made clear that the accident occurred about 80 feet from the entrance to the EDC. The EDC was specifically not responsible for the portion of the sidewalk ‘beyond 50 feet from the entrance’ pursuant to the maintenance clause within the lease rider.
In opposition to our Motion for Summary Judgment, neither the plaintiff nor the third-party defendants could show any evidence that the EDC shoveled or cleared any portion of the sidewalk beyond its responsible area; i.e., the 50 foot section.
Therefore, Justice Alison Y. Truitt held that the EDC could not have caused or contributed to the alleged dangerous condition as a matter of law. All claims, cross-claims and counterclaims were dismissed accordingly. (Roy v. South Bronx Overall Economic Development Corp., et al.)
FEDERAL COURT JUDGE DISMISSES CASE FOR LACK OF NOTICE
Plaintiff claims she slipped and fell in a Bronx Target store. The incident report reflected she fell over her own feet and that there was nothing on the floor. Plaintiff produced 4 other witnesses, each of whom described the alleged condition. Judge George Daniels of the U.S. District Court (Southern District) dismissed the case on our Motion for Summary Judgment because plaintiff could not prove that Target had actual or constructive notice of the alleged condition, holding that plaintiff’s description of the alleged substance alone is not sufficient to establish defendant’s constructive notice. (Nelida Borreo-Carrasquillo v. Target Corporation)
APPELLATE VICTORY ON CRUCIAL DISCOVERY ISSUE
The plaintiff in this personal injury case alleged she sustained neck and back injuries as well as knee injuries for which she underwent surgery as a result of a minor car accident. Plaintiff complied with discovery and appeared for an IME with a clinical orthopedist. The plaintiff then served a supplemental bill of particulars revealing that she underwent a cervical spine fusion and decompression only a few weeks before the IME. It was no surprise that the IME report stated that the designated expert was not able to adequately examine the plaintiff’s spine following the surgery. We moved to compel the plaintiff to appear for additional IMEs, this time, with a spinal surgeon. The lower court denied our motion taking the position that a defendant is not entitled to unlimited physicals of the plaintiff. We appealed and the Appellate Division reversed. We argued that the defense is, under the law, entitled to unlimited physicals so long as there is a showing that they are reasonably necessary. We submitted the original IME reports plus an affidavit from the examining physicians stating that the plaintiff’s spinal surgery prevented a complete IME and also that the supplemental bill of particulars was served at an opportunistic juncture so as to blindside the defense. The court found that we demonstrated the need for the additional IME by a spinal surgeon and ordered plaintiff to appear for the exam. Through our diligent efforts, we’re now positioned to present a stronger defense at trial, arguing lack of causal connection. (Harris v. Christian Church of Canarsie, Inc.)
APPELLATE DIVISION DISMISSES COMPLAINT
The Appellate Division, First Department, reversed the Trial Court’s denial of the defendants’ Motion for Summary Judgment where the records showed that the infant plaintiff who was born in April 1998 had minimal blood lead levels of 2-4 micrograms per deciliter between March 1999 and March 2000. He had a single elevated blood lead level of 13 ug/dl in February 2002. Defendants relocated the family and within three months of the elevated level abated the lead condition. The defendants showed and it was undisputed that the infant had speech and language deficits from infancy, well before his first known exposure to lead paint. The infant plaintiff continued to receive speech and language therapy and individualized education programs into high school where he achieved a strong academic report including two years of honors classes. In reversing the Trial Court’s denial of summary judgment, the Appellate Court noted that plaintiff’s pediatric neurologist failed to utilize any baseline IQ; or identify any scientific studies that specifically supported his opinion; and the plaintiff’s neuropsychologist failed to show that any of the continuing deficits are attributable to the infant’s brief exposure to lead as compared to his pre-existing condition. (Tapia v. Millshan Realty Co., LLC, 2017 NY Slip Op 01122)
DEFENSE VERDICT IN KINGS COUNTY
Plaintiff alleged that she sustained serious and permanent injuries as a result of the failure of the defendants, Lil’D Dispatch, Inc., d/b/a Strictly Car Service, Laffier Meeyapillai and New York City Transit Authority, to provide proper assistance in transporting her to and from a physical therapy center. Plaintiff, who suffers from a disability which qualifies her for benefits under the Access-A-Ride program, claimed that defendant Laffier Meeyapillai, when picking her up after a physical therapy session, did not provide her with a proper means of ingress to the transport vehicle, and did not provide her with any assistance as she attempted to enter the vehicle. Plaintiff further alleged that the defendant, New York City Transit Authority, failed to provide proper oversight and training to operators of Access-A-Ride vehicles.
Plaintiff exited the physical therapy center and placed her walker in the trunk of the transport vehicle. While plaintiff attempted to turn to maneuver herself into the vehicle, her right leg buckled, and she collapsed forward, and her right knee hit the curb. Plaintiff sustained a fracture of the right tibia requiring open reduction and internal fixation. Plaintiff conceded that she never complained to the driver about the manner in which the vehicle was parked and never requested assistance after placing the walker into the trunk of the vehicle. The jury came back with a defense verdict. (Spiro v. New York City Transit Authority, Metropolitan Transportation Authority, Access-A-Ride, et al.)
PROPERTY DAMAGE – DEFENSE VERDICT
Ross Weaver settled the personal injury part of this case right before the trial began and then got a Defense Verdict on the property damage part of the case. (Geico a/s/o Murphy v. Villano and C and A Transporting, LLC, et ano.)
2nd DEFENSE VERDICT IN SLIP & FALL CASE IN BROOKLYN (King County), NY THIS MONTH
Salvatore J. DeSantis represented our client, a Holiday Inn Express hotel. Plaintiff was visiting New York from Texas. She claimed that she slipped and fell on a just mopped wet floor in front of the elevator on the fourth floor. Plaintiff claimed multiple severe injuries and underwent a four level lumbar fusion (L2-S1), two arthroscopic ACL reconstructions/meniscal repairs and claimed severe depression and anxiety as a result of the incident. The jury returned a defense verdict on liability finding that any negligence on behalf of the hotel was not a substantial factor in causing the accident. (Casillas v. New Ram Realty and KCM Realty)
1ST DEFENSE VERDICT IN SLIP & FALL CASE IN BROOKLYN, NY (Kings County) THIS MONTH
Plaintiff claimed that she tripped and fell on a sidewalk defect abutting our client’s premises in Brooklyn, New York, suffering a fractured humerus and injury to her cervical spine. A non-party witness testified before trial that plaintiff had, in fact, fallen upon tree-well bricks, which would be the responsibility of New York City and not our client. David B. Owens’ cross-examination made it clear that, plaintiff was trying to be mislead the jury. The jury took approximately one hour to come back with a defense verdict. (Kievman v. Machne Israel, Inc.)
DEFENSE VERDICT ON DAMAGES DESPITE FINDING OF 100% LIABILITY AGAINST DEFENDANTS!!
Plaintiff’s vehicle was struck by our client’s van that was backing out of a driveway. Although the impact was extremely light and plaintiff’s car only sustained minimal damage, plaintiff underwent arthroscopy surgery to his left knee. He also underwent left extraforaminal approach L4/5 with decompression, discectomy, annular ablation and epidural steroid injection. He then underwent transforaminal lumbar interbody fusion including heminectomy, medial facetectomies, discectomies for decompression, microscopic techniques and posterior fusion at L4/5 as well as multiple trigger point injections. Plaintiff also underwent revision fusion at L4-S1 and L4/5 exploration of the fusion. Plaintiff was claiming that he was no longer able to work as a result of the incident.
Despite a 100 percent liability verdict, based upon the testimony of the biomechanical expert, spinal surgeon, and orthopedist, who all opined that plaintiff’s alleged injuries were not caused by this accident, the jury returned a verdict for the defendant and found that their negligence was not a proximate cause of plaintiff’s injuries.
CONTINUING EDUCATION FOR CLIENT
Providing continuing education and guidance is an important part of our role with our clients. Alice Spitz presented an updated discussion on the New York City Sidewalk Law using specific examples from the client’s earlier and ongoing cases. The presentation was targeted to the Facilities Management Team and was also attended by Risk Management and General Counsel’s office.
MSD NAMED ONE OF THE TOP 100 WOMEN-OWNED LAW FIRMS BY NEW YORK LAW JOURNAL
The New York Law Journal issued a Special Report on July 11, 2016 regarding minority owned law firms in New York State, and MSD was named one of the Top 100 Women-Owned Law Firms in New York. You can see their chart here. MSD is committed to promoting all forms of diversity.
SUMMARY JUDGMENT GRANTED
Plaintiff claimed that a church usher pushed the wheelchair-bound deceased plaintiff into the church lobby and walked away. Plaintiff testified that a crowd of congregants subsequently rushed into the church sanctuary and knocked down the deceased plaintiff while he sat in his wheelchair. The Supreme Court, Bronx County, granted the summary judgment motion of the Trinity Baptist Church and found that the church did not have a duty to control its congregants, and that the accident could not have been reasonably anticipated. In granting summary judgment, Judge Kenneth L. Thompson further found that there had never been a similar circumstance at the church, or any notice of imminence of a dangerous crowd, stampedes, overcrowding, surging or chaotic crowds at any church service or function. (The Estate of Mora Moore, et al. v. Trinity Baptist Church)
DEFENSE VERDICT IN REAR-END AUTOMOTIVE-PROPERTY DAMAGE CASE UPHELD ON APPEAL
Plaintiff’s counsel appealed the jury verdict and post-trial decision which dismissed this property damage case. The Appellate Division held that the verdict was legally supported by sufficient evidence and not against the weight of the evidence. The jury was free to credit the defendant driver’s statement that the accident was caused by an unexplained brake failure. (Gray Line New York Tours v. Big Apple Moving & Storage, et ano.)
OISIN LAMBE HONORED AMONG INAUGURAL IRISH LEGAL 100: IRISH RISING STARS
MSD congratulates Ois’n Lambe on his selection in 2016 to the inaugural Irish Legal 100: Irish Rising Stars, a listing of distinguished legal professionals under the age of 40 of Irish heritage. The first honorees selected were recognized at a reception on June 23, 2016 at the Pyramid Club in Philadelphia, PA, hosted by the Irish American Business Chamber & Network, and included a number of members of the Irish American Bar Association of New York, of which Mr. Lambe is President.
The Irish Legal 100 was established in 2008 by the Irish Voice newspaper to honor the nation’s most accomplished Irish-American legal professionals, including attorneys, legal scholars and members of the judiciary. Legal 100 Honorees include United States Supreme Court Justices John Roberts and Anthony Kennedy, and former Maryland Governor Martin O’Malley.
A special edition of the Irish Voice Newspaper was produced in June 2016 to acknowledge the achievements of those honored.
SUMMARY JUDGMENT GRANTED, COOPERATIVE APARTMENT DUTY
Plaintiff alleged that she tripped and fell due to a buckling floor within her apartment in a cooperative building. The floor buckling was allegedly caused by water that leaked from the terrace of the apartment directly above the plaintiff’s apartment. Judge Cynthia Kern of the Supreme Court, New York County, granted summary judgment in favor of the cooperative and its property manager and found that they did not owe a duty to plaintiff to repair her floor because the Proprietary Lease states that the shareholders are responsible for repairs in their respective apartments. Judge Kern also found that the cooperative and its property manager did not perform the work that caused the buckling floor. (Michel v. 14 Beekman Place Corporation, et al.)
MSD RECORDS A MILESTONE!
May 2016 marked a milestone for MSD, our 20th anniversary! Our roots actually extend back to the 1950’s when our founder Fred Molod started his first firm. In celebrating this milestone, we expressed our appreciation to our clients for their continued support. We truly value the relationships we have made over the years. MSD is fortunate to work with so many energetic and talented professionals who are committed to working on behalf of the clients we are proud to represent. Every day we are reminded of the opportunities we have to make a difference on behalf of our clients. We combined this celebration with a tribute to our founder, Frederick M. Molod, as he celebrated 65 years of admission to the Bar.
Salvatore J. DeSantis joined the faculty of the Defense Association of New York’s CLE entitled Doctors, ‘Lies’ and Videotape: Protecting the Defense Physical Examination.
SUMMARY JUDGMENT GRANTED IN BRONX COUNTY, LABOR LAW NOT APPLICABLE
Robert Von Hagen obtained summary judgment in a Labor Law case involving significant injuries following a fall from a scaffold. The plaintiff sued our client, a building owner, as well as their general contractor. The plaintiff was employed by a subcontractor at a worksite which was adjacent to the property owned by the client. Plaintiff started to perform pointing work to the exterior portion of our client’s wall, which faced the construction site and abutted a wall of the demolished structure. Although the client technically owned the wall and building on which the plaintiff was working, our client had no role in contracting for the work which was being performed by the plaintiff at the neighboring worksite. We moved for summary judgment arguing that the client was not an ‘owner, contractor or agent’ as the term is defined under New York’s Labor Law, and thus, could not be liable. Title ownership of the ‘common wall’ on which plaintiff was working was not the dispositive factor, and we were able to marshal sufficient evidence showing that our client had nothing to do with the control of the neighboring worksite. Mr. Von Hagen not only obtained summary judgment, but he did so without incurring the costs of a single deposition.
Salvatore J. DeSantis traveled to the Federation of Defense & Corporate Counsel (FDCC) conference in San Diego, California to join the faculty of their Winter Meeting. He presented on Cameras in the Examination Room? Level the Playing Field with the Use of IME and Surveillance While Keeping the Plaintiff from Turning the Tables on You. The roundtable discussion included the developing law on what is becoming a hot issue for motion practice in personal injury litigation
SUMMARY JUDGMENT GRANTED IN ALLEGED DEFECTIVE ELEVATOR CASE
Plaintiff was employed in defendant’s building where he worked as a maintenance man. He alleged that the elevator mis-leveled while he was hauling long florescent bulbs, causing serious injuries. We argued, on behalf of the owners, that the plaintiff had failed to prove notice of a prior mis-leveling problem on the day of the accident. In fact, the plaintiff came forward with two signed Affidavits of co-employees that the elevator had mis-leveled in the past. The Court held that testimony of prior unreported instances of mis-leveling were insufficient to establish that the owners had notice of a dangerous condition. Similarly, the expert Affidavit of the plaintiff was deemed conclusory. Summary Judgment was granted and the complaint was dismissed. (Scurry v. Gair 1-2 L.L.C., et al.)
SUMMARY JUDGMENT GRANTED IN LABOR LAW CLAIM
The Supreme Court, Queens County, granted the motion for summary judgment by Christopher Coleman on behalf of the Gotham Condominium and Cooper Square Realty, Inc. as to alleged violations of the New York Labor Law. Plaintiff claimed that she fell from a ladder while she was cleaning a residential condominium unit owned by one of the co-defendants after completion of renovation work performed by the general contractor, another co-defendant. The Court granted summary judgment to all defendants and found that the New York Labor Law was inapplicable because plaintiff was performing routine cleaning, and not cleaning of construction debris. The Court also found that our clients Gotham and Cooper Square Realty had no duty to plaintiff because they did not own the condominium unit. In granting summary judgment regarding Labor Law ‘241(6), Judge Robert McDonald found that Gotham and Cooper Square Realty had no interest in the condominium unit, did not determine which contractors to hire and were not in a position to control the work, including proper safety at the site. Judge McDonald also found that the unit owners were exempt from the Labor Law as owners of a one-unit dwelling. (Yolanda Holguin v. Kathryn Barton, et al.)
DEFENSE VERDICT AT DAMAGES ONLY TRIAL DESPITE ABSENCE OF ANY DEFENSE EXPERT WITNESSES
Plaintiff, a 67 year old woman, sought to recover damages for personal injuries purportedly sustained as a result of a motor vehicle accident that occurred on October 31, 2012. Plaintiff was a passenger in a car that was rear-ended by the defendant’s tow truck. Plaintiff claimed that she sustained a herniated disc at L4-5 requiring fusion surgery, along with a post-surgical incisional abdominal herniation that also required surgery. In July 2012, the plaintiff underwent a lumbar laminectomy and micro-discectomy at level L4-5. An MRI taken in December 2012 demonstrated a new herniation at the same level. X-rays of the lumbar spine also showed spinal instability.
MSD was retained to represent the defendant on the eve of trial, after summary judgment on liability had previously been awarded to the plaintiff. The Answer also was stricken (after prior counsel failed to appear in court to answer the trial calendar call) and the case was scheduled for an Inquest on damages. MSD was able to have the defendant’s default vacated and the Answer restored. After securing a two week adjournment of the trial, MSD was able to obtain expert reports from a bio-mechanical expert, a radiologist, and the doctor who had previously conducted an independent medical examination of the plaintiff, and exchanged the reports with the plaintiff.
At trial, the Court precluded the defendant’s expert witnesses from testifying due to the late exchanges. Despite this, David B. Owens was able to convince the jury that the need for the fusion surgery and subsequent incisional abdominal surgery was unrelated to the accident. Physical evidence was introduced showing that the collision was minor, and testimony was elicited on cross-examination from the plaintiff’s treating physiatrist and neurosurgeon supporting the defense’s contention that the need for the lumbar fusion was indicated at the time of the July 2012 laminectomy and micro-discectomy. The jury deliberated for 45 minutes and returned a unanimous verdict in favor of the defendant. (Moise v. Marlon and Runway Towing)
$650,000 VERDICT OVERTURNED ON APPEAL
Plaintiff was injured in a trip and fall accident in a luxury Trump building in Manhattan (owned by Equity Residential). The plaintiff claimed that the recessed carpet well in the lobby was defectively designed. The case was tried by another firm before a Judge without a jury, and the plaintiff received an award of $650,000. After the award was entered, the case was transferred to MSD to handle the appeal. Marcy Sonneborn, appellate counsel to the firm, won a reversal in the Appellate Term, First Department, and the complaint was dismissed. Thereafter, the plaintiff moved to appeal to the Appellate Division, First Department, and the motion was granted. A unanimous four-judge panel affirmed dismissal of the complaint by the Appellate Term. The Appellate Division agreed with our argument that there was nothing wrong with the carpet or the well it rested in. They also found that the plaintiff’s expert’s opinion was not probative, because it did not rely upon accepted industry standards, and did not cite to a violation of a specific safety statute. The complaint remains dismissed. (Ashton v. EQR Riverside)
CREATIVE NO COST SOLUTION FOR OUR CLIENT
Our client received a letter from Medicare advising that all her benefits were terminated in light of her death. She made numerous phone calls trying to have the error fixed, was sent to three different places and nothing happened. She is 87 and lost Medicaid, Section 8 housing, food stamps and transportation to her doctors. Not wanting her to incur any legal expenses, Frederick M. Molod advised her to call one of the television channels. She did, she appeared on television, and her problems were quickly fixed.
FEDERAL COURT GRANTS SUMMARY JUDGMENT IN STORE SLIP & FALL CASE
Plaintiff slipped and lost her balance on small pieces of apple slices in the Flatbush Avenue Target store. She sustained a tear of the tendon in her thigh, requiring surgery. She was employed and lost over 3 months from work. Plaintiff argued that Target was negligent based upon constructive notice of the defect, in that the slices of apple were smashed, old, worn, and mushy and must have been there for a long enough period of time to observe and clean them up. Plaintiff requested an adverse inference based on spoliation, since there was no video of the location of the accident and the only video produced was a partially blocked view of the location.
Alice Spitz for Target argued that Target had employees covering the aisles who did routine patrols every 15 minutes; that the plaintiff was in the aisle immediately prior to the slip and did not see or report the condition; and that Target had neither actual nor constructive notice of the condition and that the plaintiff could not prove how long the condition existed. Finally, MSD produced the only video that there was, which was extensive, along with an affidavit that there were no cameras placed in the main produce aisle and therefore spoliation was inapplicable.
The Court held that the sole issue was whether a reasonable jury could find that Target had constructive notice of the condition. Under New York law, ‘[t]he mere existence of a foreign substance, without more, is insufficient to support a claim of negligence. To get to a jury, plaintiff must provide some basis for an inference that the apple pieces were there long enough to blame defendant for the accident.’ The Court held that to do so in this case, where there was no evidence of how long the condition existed, would be speculative. The Court also held that the plaintiff failed to make out a case of the failure to inspect, and denied the motion regarding spoliation since we had established that Target saved 31 minutes of footage prior to the accident and that there was no other camera in the location. (Lacey v. Target Corporation)
DEFENSE VERDICT IN REAR-END AUTOMOTIVE-PROPERTY DAMAGE CASE & MOTION TO SET ASIDE VERDICT DENIED
This property damage claim arose from a two-vehicle collision between our client’s moving truck and a double decker tour bus. There was no dispute that our client’s driver, who was in default, rear ended the tour bus. The unique issue presented by this otherwise simple negligence claim was that our client maintained that the driver operated the vehicle without their consent and outside the scope of his employment since he used a different truck that day and got drunk after work and before ‘borrowing’ the truck he drove in the accident. Plaintiff called the former driver as its witness. Alice Spitz argued that if the jury believed that the driver had permission to use the vehicle, then they should also believe his explanation of a sudden and unexpected brake failure as the cause of the accident. The jury accepted this argument, finding he had implied permission to drive the truck, was negligent (because he had been drinking), but that his negligence was not a proximate cause of the accident.
The plaintiff tour bus moved to set aside the verdict, arguing that the jury should never have been permitted to consider the driver’s negligence and therefore should also not have had a proximate cause question asked as the moving truck’s rear-end collision with the bus created a presumption that the driver was negligent. The Court denied plaintiff’s motion to set aside the verdict. (Gray Line New York Tours v. Big Apple Moving & Storage, et ano.)
SUMMARY JUDGMENT GRANTED, LABOR LAW CASE
Plaintiff was injured installing windows in a penthouse apartment for a prominent attorney, Sanford Rubinstein, and fell off a scaffolding inside Mr. Rubinstein’s condo apartment. Plaintiff sued our client, the Condo Board defendants, as well as Mr. Rubinstein. All parties moved for summary judgment. Mr. Rubinstein claimed the single family home-owner’s exemption under the Labor Law. We, representing the Condo Board defendants, relied upon a recent Court of Appeals case, Guryev, in which Condo Board owners were not held to be ‘owners’ under the Labor Law. Under the Guryev case, and also in this case, the Condo Board did not supervise the work done in the individual condo owner’s apartment. The Supreme Court agreed with us. Even though the Condo Board hired and paid Mr. Rubinstein’s contractor, the Condo Board ultimately billed the individual condo owner for the work. The Court, having determined that the work was done for the benefit of the individual condo owner and not for the benefit of the Condo Board, dismissed the Condo Board from the case. The cross-claims were also dismissed. (Terry v. Douglas Elliman-Gibbons & Ives, Inc., et al.)
SUMMARY JUDGMENT GRANTED IN SLIP & FALL DOWN STAIRS CASE
Plaintiff, a tenant in the defendant’s building, alleged that she slipped and fell on the stairwell within the defendant’s apartment building and injured her lumbar spine, resulting in back surgery. Discovery revealed that when the plaintiff stepped down onto the step in question, a piece of the ceramic tile flooring became dislodged and flung out from the step. The plaintiff alleged that the defendants failed to properly maintain the stairwell and allowed a defect to exist which caused her fall. However, plaintiff admitted that she traversed the staircase twice a day for the prior six months and had never had any problems or noticed any defective condition. Likewise, in support of our summary judgment motion, we submitted the testimony of the property manager as well as an affidavit from the live-in superintendent which established that the subject steps were inspected within thirty minutes prior to the plaintiff’s fall and that they were not hazardous at that time. The plaintiff attempted to raise an issue of fact by submitting the affidavit of a purported expert in engineering, but we successfully argued that the expert’s opinions were not sufficient to show any visible defect or hazardous condition such that the defendants should have or could have been aware of it and been charged with notice. The Court granted summary judgment to the defendants. (Segura v. Scattered Sites, LP)
SUMMARY JUDGMENT GRANTED, ICE CASE
Plaintiff testified that she slipped AND tripped on ice ’embedded’ in an allegedly mis-leveled crack in the sidewalk abutting our client’s high rise apartment building in Manhattan. The building superintendent testified that about one hour before plaintiff’s accident, he inspected the sidewalk and found no dangerous conditions. An engineer inspected the sidewalk on our behalf and opined that the alleged mis-leveling was insignificant and did not constitute a trip hazard. A meteorologist provided certified climatic records showing that plaintiff’s accident occurred several minutes after snow began to fall. The Court found that our client had no opportunity to commence snow removal at the time of the accident and plaintiff did not dispute any evidence to refute the opinions of the engineer and meteorologist. (Adario-Caine v. 69th Tenants Corp., et al.)
MSD’S COMIC RELIEF
MSD participated in the ‘Red Nose Day’ campaign: Have a Good Laugh for a Good Cause (photo below). Money raised during this campaign goes to the Red Nose Day Fund, which distributes grants to charities that benefit children and young people in the US and some of the poorest communities in the world. Learn more about the charities and how to donate at: www.rednoseday.org/charities.
SUMMARY JUDGMENT GRANTED, MOLD CASE
Plaintiff testified that he developed a host of illnesses after moving into our client’s high rise apartment building in Manhattan. As a result of his suspicion that mold was making him ill, the plaintiff retained an environmental testing company. The company found visible mold in the hallway near his apartment, and mold underneath sheetrock near his bed. We retained the services of a health and safety expert, who opined that mold in the hallway and underneath sheetrock was not sufficient exposure to cause illness, particularly as the mold in the plaintiff’s apartment was not airborne (it was covered by sheetrock), and the most that plaintiff could prove was “general causation”. The courts in New York have held that general causation is insufficient to sustain a claim based upon mold exposure. The complaint was dismissed. (Bergman v. EQR 160 Riverside, et al.)
A New York County jury found that the driver of the defendant’s truck was negligent because he’d been drinking before taking his employer’s truck for a personal errand, but that the negligence was not the proximate cause of the accident. Despite the fact that he hit a double decker bus on the Manhattan Bridge in the rear, Alice Spitz successfully argued that if the jury believed the driver’s testimony that he had implied permission to use the vehicle after hours on a personal errand, that they should also credit the driver’s claim that the brakes failed suddenly and unexpectedly and therefore provided a non-negligent explanation for the accident. The case had previously gone up to the Appellate Division on the legal issue of permissive use ‘which was held to be a question for the jury. (Gray Line v Big Apple Moving & Storage)
DEFENSE VERDICT UPHELD BY THE APPELLATE DIVISION
A judgment in favor of the defendant in a Labor Law 240(1) action was upheld on appeal. The plaintiff, a laborer, fell off the top of a truck where he was breaking up concrete. His employer, our client, was a concrete company, a sub-contractor on the job. The plaintiff argued that he should have been provided with proper protection, because he fell from a height of eight feet. We argued that Labor Law 240(1) did not apply because the plaintiff ‘was to play no role in the actual erection of the bus shelter’ as the plaintiff’s work only involved demolition, and further that the plaintiff was not in the class of persons protected by the Labor Law. The jury found that the defendant violated Labor Law 241 (6) but that the violation was not a proximate cause of the injury. Plaintiff argued this was inconsistent. The Appellate Court disagreed and the judgment dismissing the complaint was affirmed. (Siguenza v Cemusa, Inc.)
SUMMARY JUDGMENT WIN AFFIRMED ON APPEAL
The plaintiff alleged that he was injured while pushing a loaded hand-truck up a delivery ramp. On behalf of our client, the property owner, we moved for summary judgment on the grounds that the ramp was not defective. We relied on the opinion of an expert engineer who performed tests on the ramp’s surface. The plaintiff retained an engineer to rebut our motion. The plaintiff’s engineer argued that the ramp was too slippery and smooth without testing it. The Appellate Division held that those opinions were without merit. The plaintiff’s engineer also argued that the ramp violated the NYC Building Code because it was too steep, however the Appellate Division ignored this argument because it amounted to a new theory of liability raised for the first time on appeal. The complaint was dismissed. (Ceron v Yeshiva University)
SUMMARY JUDGMENT MOTION GRANTED, SLIP AND FALL
The plaintiff was injured while she was the guest of a member of the Sea Gate Beach Club. While carrying her 2-year-old granddaughter, the plaintiff was stepping up from the sand of the beach area onto a wooden boardwalk. Her foot got caught on the edge of the boardwalk and she fell, sustaining a fracture/dislocation of her right hand. The plaintiff alleged that the boardwalk was improperly designed and constructed resulting in a dangerous condition. Our client, the Sea Gate Association, is the owner of Sea Gate, a private community in the Coney Island area of Brooklyn and is the owner of the waterfront property where the Beach Club is located. In our Motion for Summary Judgment, we argued that the lease of the Sea Gate beach premises from the Association to the Sea Gate Beach Club required the Beach Club to fully maintain the Beach Club premises, and that therefore, our client did not owe any duty of care to the plaintiff. The co-defendant Beach Club argued that the lease required the Association to indemnify the Beach Club for claims such as that by the plaintiff. Our motion was granted, dismissing the plaintiff’s complaint and the co-defendant’s cross-claim against the Association was also dismissed. (Kathleen Gross v. Sea Gate Beach Club and The Sea Gate Association).
SUMMARY JUDGMENT MOTION GRANTED ‘ MOTOR VEHICLE ACCIDENT
Plaintiff, a passenger in an ambulette, sued our clients, the ambulette driver and owner, as well as the driver and owner of the vehicle that we alleged struck the ambulette. Plaintiff moved for summary judgment against the driver of the other involved vehicle, and we cross-moved to have all claims and cross-claims against the ambulette driver and owner dismissed for lack of negligence. We made this motion prior to conducting any discovery in order to keep defense costs low. The co-defendant opposed the motion as premature due to lack of discovery, but we highlighted how they failed to point to any negligence on the part of the defendant ambulette driver or owner. The trial court agreed that there was no evidence of negligence on the part of the ambulette defendants, and granted our Motion for Summary Judgment, dismissing the Complaint and cross-claims against us. (Joseph v. Doski and Medi-Cab, Inc.)
IT’S MOOT, BUT IT MATTERS – SHARING OUR EXPERTISE WITH A NEW GENERATION
MSD Founding Partner Frederick M. Molod participated as a Judge in the Yale Mock Trial Association’s Annual Tournament in New Haven, Connecticut and issued rulings from the bench. He was very impressed with the amount of work the students put into the mock case, and the caliber of the talent.
WON REVERSAL IN THE APPELLATE DIVISION, COMMERCIAL VEHICLE ACCIDENT
The Supreme Court granted plaintiff’s Motion for Summary Judgment in this motor vehicle accident case, on the grounds that our client, a driver of a commercial van, struck the vehicle, in which plaintiff was a passenger, in the rear on the highway. The lower court also dismissed our third-party action against the driver/owner of plaintiff’s host vehicle. We appealed to the Appellate Division, relying on the non-party Affidavit of an eye witness to the accident, arguing that there was indeed a triable issue of fact with respect to the issue of proximate cause. The Appellate Division agreed and ruled that the Supreme Court improperly granted the plaintiff’s motion for summary judgment on the issue of liability and improperly dismissed the third-party complaint. We were also awarded costs for our client. (Spinosa v Golden Touch Transport).
SUMMARY JUDGMENT GRANTED AND COMPLAINT DISMISSED ‘ PREMISES LIABILITY
We were successful in persuading the Supreme Court that plaintiff’s Complaint against the owners of commercial real property adjacent to a sidewalk should be dismissed. We argued that the sidewalk defect was at most a trivial defect. In addition, we argued that the defendants-owners did not have notice of the supposed defect. We relied upon the Affidavit of an expert engineer who inspected the sidewalk and found no defects. We also relied upon the Affidavit of the owner’s property manager, who inspected the sidewalk and found no defects. The property manager testified that she even tried to trip on the red pavers and could not. Nor did the testimony regarding the alleged defect describe a crack which had the characteristics of a trap or a snare. We argued that the photographs supported a finding that the alleged defect was de minimus and that the alleged defect looked like something you would find in a typical well-maintained sidewalk in New York City. The Court agreed and dismissed the Complaint. (Sturm, Marian V. Myrtle Catalpa LLC, et al.)
SYNAGOGUE NOT LIABLE FOR SLIP AND FALL ON CAKE AT A BAR MITZVAH
Plaintiff was attending her grandson’s bar mitzvah at the synagogue we represent. The caterer for the party was also a defendant. The testimony revealed that the synagogue, although the owner of the property, had no involvement in the bar mitzvah party where plaintiff slipped and fell. The Supreme Court granted our motion for summary judgment, agreeing with our argument that since the synagogue did not have anyone working at the party, did not have anyone involved in the set-up of the party, did not have anyone responsible for cleaning at the party, and did not have actual or constructive notice of the cake on the floor before plaintiff fell, the case should be dismissed. (Nektalova v. Bokharian Jewish Community Center)
SUMMARY JUDGMENT GRANTED, SNOW & ICE CASE
Plaintiff testified that ice caused him to slip and fall on a sidewalk at Jacobi Medical Center, between a building owned and occupied by the City of New York and a building the City leased to our client, Yeshiva University. All of the City witnesses testified that the City was and is responsible for snow and ice removal from the sidewalk between the buildings, including the area of plaintiff’s accident. In opposition, the plaintiff argued that the terms of the lease state that Yeshiva University is responsible for snow and ice removal on the sidewalk abutting the leased property. The Supreme Court, Bronx County, granted summary judgment in favor of Yeshiva University and found that the area of the accident was not abutting the leased premises, and therefore not covered by the lease provision cited by plaintiff. Therefore, Yeshiva University was not responsible for snow and ice removal at the location of the accident. (Hong v. City Of New York, et al.)
SHARING KNOWLEDGE WITH INSURANCE PROFESSIONALS ‘ RETAIL & HOSPITALITY LITIGATION
Alice Spitz delivered a presentation on Security Surveillance Video and Spoliation at the Harmonie Group’s Chicago, Illinois conference. She explored the issues which premises owners face regarding the preservation of video and the potential consequences of the failure to preserve footage, as well as the disclosure and use of video in litigation. If you’re interested in having MSD address your claims department on these or other issues, please contact us at firstname.lastname@example.org.
RAISING AWARENESS FOR BREAST CANCER
The entire firm (see photograph below) observes Breast Cancer Awareness Day and remembers our associate, colleague, and friend, Eileen Roche-Clarke. In her honor, MSD donated to SHARE, an organization dedicated to helping women who have been diagnosed with breast and ovarian cancer.
HARMONIE’S FALL CONFERENCE
Alice Spitz, a Harmonie Group past president, attended the Group’s Fall Conference in Seattle. The Harmonie Group is an affiliation of independent law firms providing a broad spectrum of high quality legal services to corporations, insurance carriers, and third party claim administrators across the United States, and internationally as well. You can access the Harmonie Group’s law firm directory here.
KEEPING INSURERS INFORMED ‘ LIENS & PERSONAL INJURY SETTLEMENTS
MSD emailed their clients about a recent case impacting settlements in personal injury cases. You can read this article we prepared, The Latest Word on the Assertion of Liens by Insurers in NY Personal Injury Settlements is Not Necessarily the Final Word, here. While MSD measures our success in favorable verdicts and economically beneficial case results, we also dedicate ourselves to monitoring and apprising our clients of updates to relevant law.
SUMMARY JUDGMENT MOTION GRANTED ‘ COURT FOUND PLAINTIFF ASSUMED THE RISK
Plaintiff, a young man with autism, brought an action against the New York Institute of Technology (NYIT), where he was enrolled in a program for special-needs young adults. Plaintiff was injured while working out in NYIT’s gym, at night, and while unsupervised. Plaintiff’s expert claimed that plaintiff’s accident would have been avoided had he been supervised. We argued that plaintiff had the mental capacity to understand the consequences of his actions while in the gym, as he worked out on a regular basis. We also argued that plaintiff and his parents were told that students did not have one-on-one supervision in the NYIT program which plaintiff attended. The trial court agreed that plaintiff assumed the risks of his actions, and granted our Motion for Summary Judgment, dismissing the Complaint. (Panet v. New York Institute of Technology)
MSD NAMED ONE OF THE TOP 100 WOMEN-OWNED LAW FIRMS BY NEW YORK LAW JOURNAL
The New York Law Journal issued a Special Report on June 17, 2014 regarding minority owned law firms in New York State, and MSD is ranked as the 11th largest Women-Owned law firm in New York. You can see their chart here. MSD is committed to promoting all forms of diversity.
In this three-vehicle accident, the petitioner claimed our client struck his vehicle in the rear, pushing it into the vehicle driven by the co-respondent. We relied on the police report and argued that although the co-respondent claimed that the petitioner stopped to allow him to merge into the petitioner’s lane of travel, this could not possibly be true, as the petitioner claimed that the co-respondent struck him while merging. The arbitrator found 0% liability on the part of our client and 100% liability on the part of the co-respondent. (Hereford Insurance Company v. Old Republic Insurance Company)
DEFENSE VERDICT ON BEHALF OF A TRACTOR-TRAILER INVOLVED IN A REAR END COLLISION
In a case tried to verdict by Teresa A. Gruber, the plaintiff alleged that the SUV she was driving was struck in the rear by a tractor-trailer while traveling in the middle lane of the Long Island Expressway. The defendant, Jorge Rosa, an employee of JDJ Trucking, claimed that while he was traveling in the middle lane of the Long Island Expressway, the plaintiff came from the left and cut him off so closely that despite applying his brakes, he was unable to avoid striking the rear of the plaintiff’s SUV. The jury found that the defendant driver was not negligent, but acted reasonably in the face of the plaintiff’s sudden lane change. Motions for summary judgment were earlier denied. The injuries alleged included recommended right rotator cuff surgery, lumbar herniations, cervical herniations, eighty-six (86) epidural injections to the cervical and lumbar spine, and a projected $3,000,000 in future medical care. The plaintiff’s demand to settle was $250,000 and the offer was $25,000. The jury deliberated for 48 minutes before returning with a defense verdict. (Daniel v. JDJ Trucking, Corp. and Jorge Rosa)
LITIGATING CONSTRUCTION SITE ACCIDENTS
MSD’s Alice Spitz was a faculty member in the New York State Bar Association’s CLE seminar Litigating Construction Site Accidents: The Law and The Trial, a program to educate attorneys unfamiliar with litigating such cases. The topics she addressed included construction contracts, New York’s grave injury statute, insurance indemnification issues, and ethical concerns arising during the defense of clients involved in construction litigation.
THE TRANSPORTATION LAWYER PUBLISHED MSD ARTICLE
MSD’s Terri Gruber’s article, co-written with Noelle M. Natoli-Duffi and entitled “Ethical Considerations Facing Transportation Attorneys”, was published in the February 2014 issue of The Transportation Lawyer. You can read it here. She discusses conflicts of interest which often arise when representing both corporate insureds as well as drivers and other conundrums which routinely face transportation attorneys and the ethical rules applicable to those situations.
SLIP AND FALL CASE DISMISSED IN A 22 PAGE SCATHING OPINION
Plaintiff claims that on February 24, 2008, he slipped and fell on an icy sidewalk adjacent to property located in Brooklyn, New York. The plaintiff, having settled his slip and fall action against the unincorporated condominium association, amended his Complaint to include the individual condo unit owners. We argued both that he was judicially estopped from proceeding against the individual condo unit owners, as well as that individual condominium owners are not liable to a pedestrian who falls on an adjoining sidewalk. The Court pointed to the case law we cited in its long decision and found that the individual unit owners are not responsible for maintaining the sidewalk. Plaintiff’s Complaint was dismissed. (Mohadeb v. Bedford Apartments, et al.)
HARMONIE’S WINTER CONFERENCE
Alice Spitz, Harmonie Group Past President, attended the Group’s Winter Conference in Florida. The Harmonie Group is an affiliation of independent law firms providing a broad spectrum of high quality legal services to corporations, insurance carriers, and third party claim administrators across the United States, and internationally as well. You can access the Harmonie Group’s law firm directory here.
The entire MSD family wishes you and yours a happy and safe holiday season. May you have a New Year filled with Good Health, Peace, Joy and Prosperity!
NEW YORK LAW JOURNAL PUBLISHED MSD ARTICLE ON LAW PROHIBITING VIDEOTAPING OF IMES
Firm member Alice Spitz’ article The Law Does Not Support Videotaping IMEs Under Ordinary Circumstances was published in the New York Law Journal. In response to an article advocating the secret videotaping of IMEs by plaintiffs’ attorneys, Ms. Spitz analyzes the law which actually prohibits such conduct. Additional reprints of the article are available and we would be happy to provide them upon request.
MSD MATCHES EMPLOYEE DONATIONS TO THE PHILIPPINES
Our hearts and minds are with those in the Philippines following the devastation wreaked by Typhoon Yolanda (Haiyan).
APPEAL GRANTED: SLIP & FALL CASE DISMISSED
Plaintiff, a tenant in a high-rise apartment building in Manhattan, brought an action alleging that her trip and fall on a carpet well in the lobby of her building was as a result of a defective design. Plaintiff produced an expert at trial who had designed carpet wells for Macy’s, and other commercial establishments, and who testified, without rebuttal, that the owner’s carpet well was defectively designed. Plaintiff sustained a fracture of the cheek bone which her doctors opined caused facial nerve damage and R.S.D. The judge, after a bench trial, awarded plaintiff $650,000. We were given the matter for appeal and successfully argued that the owner did not have notice of the alleged defect. Furthermore, there was no industry standard for the construction of carpet wells, and no statutes had been violated. In the alternative, we agued that the award was excessive. The Appellate Term in Manhattan reversed the judgment and dismissed the complaint. (Ashton v. EQR)
PLAINTIFF DEMANDS $1.2 MILLION AT MEDIATION – RESULT: SUMMARY JUDGMENT MOTION GRANTED AND SLIP & FALL CASE DISMISSED
Plaintiff claims that he slipped and fell on a metal ramp while making a Coca-Cola delivery at our client’s premises on Lexington Avenue in New York City. Plaintiff testified that it had stopped raining 10 minutes before he arrived and loaded 8 boxes onto a hand-truck. The total load of the hand-truck was 160 pounds and plaintiff took one step onto the ramp and slipped backwards. The hand-truck fell on top of his legs. Plaintiff refused to move from his $1.2 million dollar demand. In support of our motion for summary judgment, our engineer, certified in the Tribometer, measured the co-efficient of friction in wet and dry conditions and found that average slip resistance of the ramp under dry conditions was found to be 0.81 and 0.69 under wet conditions. Slip resistance value of 0.5 or greater is considered to be a safe value. The Court agreed that we successfully established that there was no dangerous condition in existence when plaintiff slipped and fell, and dismissed plaintiff’s Complaint. (Ceron v. Yeshiva University)
COURT OF APPEALS AFFIRMS DISMISSAL OF COMPLAINT (TWICE)
Sato v Ippudo Restaurant was heard by the Court of Appeals on the basis of a two judge dissent in the Appellate Division. The Court of Appeals affirmed the majority decision and dismissed the Complaint. This case involved a patron who fell down an entire flight of stairs (leading to a restroom in the basement) and sustained devastating injuries. The plaintiff argued that the corridor leading to the basement stairs was too dark for him to see the top of the stairs. The walls were painted black, and the lighting was dim. Nevertheless, the Appellate Division noted that there were warning signs at the top of the stairs, which ‘establishes adequate warning as a matter of law.’ In addition, plaintiff’s claims of structural defects were held not to be probative of a dangerous condition since ” the provisions of the Administrative Code ‘are inapplicable because the subject stairs are not ‘interior stairs’ as defined by the Code.’ UPDATE: Plaintiff moved to reargue the decision, but in January 2014, the Court of Appeals denied the motion for reargument, awarding costs to our client.
SUMMARY JUDGMENT GRANTED IN SLIP & FALL CASE
Plaintiff claims a broken hip from a fall in the dining room of our client’s restaurant in New York City due to dim lighting and an abrupt transition between a tile floor in the anteroom and the dining room’s wooden floor. Our engineer conducted skid testing and light testing and found that the lighting exceeds the statutory requirements and the floor exceeds the accepted safe value. Our Motion for Summary Judgment was granted and plaintiff’s case dismissed. UPDATE: in December 2013, Judge Scarpulla denied plaintiff’s Motion to Renew and Reargue his decision. (Aronica v. Marco Polo Management, et al.)
MOLD CASE DISMISSED
Two plaintiffs claimed injuries from exposure to mold in their apartment in our client’s building. The Court granted our Motion for Summary Judgment which argued, with the support of our medical experts, that there was no specific causal relationship between plaintiffs’ exposure and their claimed illnesses, and further that plaintiffs’ expert testimony should be precluded. The Court precluded plaintiffs’ expert witness testimony, finding that neither of the plaintiffs’ ‘experts’ established their credentials and dismissed the Complaint, finding that plaintiff could not establish the element of proximate cause. (Gallagher & Schuetrum v. Ruradan Corp.)
OUR LAW FIRM IS SO PROUD TO ANNOUNCE
We’re extremely proud to announce that the firm’s founder, Frederick Molod, was honored by the Jewish Lawyers Guild with the Tzadik Award.
Tzadik means “righteous one”, a leader and teacher of a generation.
We’re so pleased to share this photograph below from the occasion.
All of us at MSD strive to emulate the example he has set for us.
(See also, New York Law Journal, Mar. 22, 2013 at p.6, col 2. www.NewYorkLawJournal.com/PubArticleNY.jsp?id=1202593072597)
Frederick M. Molod
VOLUNTEERING, TO PAY IT FORWARD
MSD Partner David B. Owens was a judge for the Yale Mock Trial Association’s AMTA Regional Competition in New Haven this month.
PLAYGROUND INJURY CASE DISMISSED
Our Motion for Summary Judgment, which provided proof that our client did not design, maintain or install the playground equipment on which the infant plaintiff was injured, was granted without any opposition from the plaintiff. (Cortes v. City of New York and Designed for Fun).
TREE WELL CASE DISMISSED
The Court agreed with our arguments and granted our Motion for Summary Judgment, finding that our client did not own, maintain or repair the tree-well in question. (Sixto Toledo v. NYC Transit Authority of New York, Bellmarc Property, et al.).
TRIP & FALL CASE DISMISSED
The Supreme Court, New York County, granted a motion for summary judgment by Christopher Coleman on behalf of Gallery House Condominium and John J. Grogan & Associates, Inc. as to a trip and fall claim. Specifically, plaintiff claimed that he tripped on an expansion joint in front of the Gallery House located at 77 West 55th Street, in New York, New York. He fell on his face, causing a fractured eye socket and an alleged traumatic brain injury. Plaintiff demanded $6.5 million to settle the case. Plaintiff’s expert measured the expansion joint at 3/4 inch wide and one inch deep. Judge Debra James found no question of fact as to the trivial nature of the alleged defect and found that plaintiff’s expert failed to cite any convincing standard that calls for expansion joints to be exactly 1/4 inch in width. (John Fayolle v. East West Manhattan Portfolio LP, et al.)
DEFENSE VERDICT IN NEW YORK LABOR LAW CASE
In a case tried to verdict by Salvatore J. DeSantis, plaintiff, an employee of Pro Concrete, fell while getting off a dump truck after breaking up some concrete in the bed of the truck. Pro Concrete was hired by our client, Shelter Express, to rip up the sidewalk so that it could install a bus shelter. While plaintiff was coming down from the truck, he fell from 8 feet according to the plaintiff, but only from 3-4 feet according to other witnesses. Plaintiff claimed violations of New York Labor Law Sections 240(1) and 241(6). All parties made motions for summary judgment which were denied and an appeal from the denials is pending. The jury found that there was no Labor Law Section 240(1) violation, and although there was a violation of Section 241(6), there was no proximate cause. The plaintiff’s demand to settle was $1.4 million and the offer was $25,000. The Court recommended $350,000. The injuries involved a fractured wrist with surgery and a fractured ankle. Siguenza v. City of New York, Cemusa, Inc and Shelter Express.
PRO-BONO VICTORY – SAVED OUR CLIENT FROM PRISON
Salvatore J. DeSantis defended our pro bono client, who was charged with violating a restraining order and violating the terms of his probation, in a bench trial in Superior Court, Monmouth County, New Jersey. Our client was vindicated on both charges.
HARMONIE CONFERENCE IN THE BIG EASY
Alice Spitz, the Harmonie Group’s Immediate Past President, attended the Group’s Spring Conference in New Orleans. The Harmonie Group is an affiliation of independent law firms providing a broad spectrum of high quality legal services to corporations, insurance carriers, and third party claim administrators across the United States, and internationally as well. You can access the Harmonie Group’s law firm directory here.
Appellate division affirms grant of summary judgment to dag hammarskjold towers
Salvatore J. DeSantis and Marcy Sonneborn were successful in having summary judgment awarded to Dag Hammarskjold Towers and having the decision affirmed on appeal. The plaintiff was injured when she tripped and fell on a decorative sidewalk in front of the Dag Towers. Plaintiff initially testified that she had “no idea” how she tripped and fell and she could not identify or mark on photographs the specific rise, declivity or defective condition of the sidewalk that caused her accident. Nevertheless, she submitted an Affidavit in Opposition to the Summary Judgment Motion in which she claimed that the sidewalk pavers were cracked, uneven and irregular, causing her to trip. The Appellate Division agreed with the Supreme Court that Dag Towers was entitled to summary judgment because a jury would have to engage in impermissible speculation to determine the cause of the accident. Smith v City of New York.
preparation leads to defense verdict even when faced with a stop sign
In this two vehicle collision case in Supreme Court, Queens County, New York, Salvatore J. DeSantis obtained a defense verdict for Church Mutual. It took defeating the plaintiff’s motion for summary judgment, winning the interlocutory appeal of that decision, and finally trying the case to verdict to overcome the fact that our client had a stop sign against him. The key to success was retaining an accident reconstruction expert where the plaintiff simply relied upon an assumption of clear liability. The 34 year old plaintiff suffered significant injuries and never returned to work. The plaintiff’s settlement demand was consistently the full policy limits through the trial, until while the jury was out, a high/low settlement agreement of $675,000/$250,000 was reached. The jury deliberated for one hour before returning with a defense verdict. The high/low agreement in place prevents any further appeals in this matter. Chang-Hoon Lee, v. Kew Gardens Sung Shin Reformed Church of New York and Young Soo Su.
for a good cause
MSD’s billing coordinator participated in a FIFTY MILE BIKE RUN to support the National Multiple Sclerosis Society. Congratulations for being one of NMSS’ top fundraisers, Oliver!
Alice Spitz, The Harmonie Group’s Immediate Past President, will be attending the Group’s 2011 Fall Conference in Boston, Massachusetts this month. The Harmonie Group is an affiliation of independent law firms providing a broad spectrum of high quality legal services to corporations, insurance carriers, and third party claim administrators across North America. You can access the Harmonie Group’s law firm directory here.
msd’s diversity – sharing expertise with a czech audience
Hendrick Vandamme was interviewed by Czech National Radio about the recent 11th Circuit decision declaring the Patient Protection and Affordable Care Act signed by President Obama in March 2011 unconstitutional. You can listen to the interview here, in Czech – just one of the many languages Hendrick speaks.
msd partner shares expertise in nylj article
In “Public Health Law Protections for Funeral Homes Affirmed” (New York Law Journal, July 18, 2011), MSD firm member Teresa A. Gruber shows how an important appellate court’s interpretation of changes to the Public Health Law assists in the defense of funeral homes.
msd partner shares insurance expertise with other defense counsel
Salvatore J. DeSantis moderated a CLE panel discussion about allocating damages among multiple insurers at the annual meeting of the FDCC (Federation of Defense & Corporate Counsel) in Virginia.
transportation conference – taking control of the steering wheel
MSD firm member Teresa A. Gruber presented at the Harmonie Group’s Transportation, Construction & Product Liability Conference in Chicago this month. Her topic: Taking Control of the Steering Wheel in Negligent Hiring, Retention, Supervision and Entrustment Claims in Trucking Litigation – Generally & In New York State Particularly. The Harmonie Group is an affiliation of independent law firms providing a broad spectrum of high quality legal services to corporations, insurance carriers, and third party claim administrators across North America. You can access the Harmonie Group’s law firm directory here.
MSD Successfully Defends Summary Judgment Denial on Appeal
Salvatore J. DeSantis and Marcy Sonneborn were successful in having a decision denying Summary Judgment to a motorist affirmed in the Second Department. The plaintiff/motorist claimed that he was entitled to summary judgment because he had the green light and the defendant school van entered the intersection without looking and seeing oncoming traffic. The Appellate Division affirmed that questions of fact existed as to whether the plaintiff observed all road conditions properly before the intersection collision. The case will proceed to trial for a jury to decide. Chung Hoon Lee v Kew Gardens Sung Shin Reform Church
MSD Motion for Summary Judgment Brings Voluntary Discontinuance
Alice Spitz and Marcy Sonneborn brought a Motion for Summary Judgment in a lead paint case where MSD represented the Landlord and Managing Agent of a multiple dwelling on Manhattan’s upper west side. The infant plaintiff was the daughter of the resident superintendent. When lead levels were discovered in the infant’s blood that were higher than that allowed by New York City law, the family vacated the premises and brought suit. The plaintiff’s attorney never tested the amount of lead in the paint in the superintendent’s apartment before filing his Note of Issue. We argued that the superintendent, who also did construction work outside the building, may have carried lead dust into the apartment on his work boots. More significantly, the child’s expert examining physician found absolutely no effects of the minimally elevated blood lead levels in the child. In the face of our strong Motion for Summary Judgment, the plaintiff voluntarily discontinued the action and the Complaint was dismissed. Valdes v Schacter Realty, NY County
Persistent & Aggressive Deposition Results in Plaintiff’s Discontinuance of Lawsuit
The plaintiff underwent an intensive and grueling deposition during which his inconsistencies were revealed by MSD’s Mark Grodberg. Rather than subjecting his client to another day of testifying, the plaintiff’s counsel decided to discontinue the action. Thomas Gallagher v. Kevin Hahn.
Bowler Strikes Out When MSD Wins Defense Verdict
In a case tried to verdict by Sal DeSantis, the plaintiff had been employed by Macy’s as the assistant foreman for electricians at their Brooklyn store. He claimed that while inspecting the lights in an emergency stairwell, and checking for tools and parts left in the area by other electricians, he tripped over a piece of a broom handle left on the stairs by our client, Ultimate Services, Inc., causing him to fall down a flight of stairs. Our client denied that it left any portion of a broom on the steps and that it had no notice of any defective condition. Plaintiff claimed to have sustained spurring of the right shoulder and a torn medial meniscus of the left knee, requiring multiple medial meniscectomies, while we had evidence that he continued as an active team bowler. Although the Appellate Division had previously affirmed the denial of summary judgment, in a unanimous verdict, a Kings County Jury found no negligence against our client. The trial was bifurcated so the jury did not hear any of the testimony regarding damages. DeSena v. Ultimate Services, Inc.
Burn Case Overturned on Appeal
Appellate counsel Marcy Sonneborn and Alice Spitz appealed the denial of our Motion to Dismiss plaintiff’s case, brought when a two year old infant fell into a hot bath and suffered horrific burns. Plaintiff claimed that the infant’s injuries were caused by excessively hot water in their apartment building. The water had been tested by a New York City agency shortly after the accident and was found to be hotter than what is considered normal. Nevertheless, we argued that the accident could easily have been avoided had the infant’s brother (who filled the bathtub with hot water) turned on the cold water faucet at the same time as the hot water was running. In reversing the Bronx Supreme Court, the Appellate Division, First Department, dismissed the case against both the landlord and our client, the boiler service company. The Court said “It is undisputed that this accident occurred when the unattended, 17-month-old child was scalded after getting or falling into a bathtub after her brother had turned on the hot water only . . . A landlord cannot be required to adjust the hot water temperature in order to protect children from adults who fail to do so.” Simmons v. Sacchetti.
Bronx Auto Case Bites the Dust
Justice Howard R. Silver in Bronx County granted MSD’s motion for summary judgment based upon plaintiff’s failure to satisfy the serious injury threshold of the New York Insurance law. Plaintiff was rear-ended by defendant’s vehicle and later underwent a cervical fusion and arthoscopic surgery on her left shoulder. In his motion papers, Christopher Coleman argued that the medical evidence established that plaintiff had an extensive and longstanding history of degenerative spinal disease and underwent a cervical laminectomy 16 months before the car accident. Judge Silver agreed that the medical evidence established additional contributing factors which interrupted the chain of causation between the car accident and plaintiff’s claimed injuries, thereby shifting the burden of proof to the plaintiff. Since the plaintiff’s experts did not discuss her degenerative disc disease, the plaintiff did not successfully rebut Mr. Coleman’s assertion of the lack of causation, and the case was dismissed. Keller v. Rgis Inventory Specialists
MSD Wins Summary Judgment Motion for Temple
In a premises liability case against our client, Temple Isaiah, Lawrence Getzler successfully argued that plaintiff was unable to raise any triable issues of material fact that the Temple either created a dangerous condition or was under actual or constructive notice of a dangerous condition. Plaintiff allegedly fell while walking in the hallway of the Temple, claiming her slip and fall was caused by a puddle of water in front of a water fountain, resulting in a right ankle fracture. Mr. Getzler was able to persuade the Nassau Supreme Court that this case should be dismissed through the utilization of deposition testimony of the plaintiff, the temple administrator, and a non-party witness. Wild v. Temple Isaiah
Ulster County Court Grants MSD Motion to Dismiss Auto Accident Case
Judge Christopher Cahill granted Joni Linker’s Motion for Summary Judgment, agreeing first that she had made a prima facie case that plaintiff had not, in fact, suffered a serious injury as reflected by the conclusions of the independent examining physicians, a careful review of the plaintiff’s emergency room records, and even her deposition testimony, and then agreeing that the narrative medical reports plaintiff submitted in rebuttal with contrary conclusions were unsupported by the record. Beaulieu v. Jones, et ano.
Deli’s Defect Ruled De Minumus & Bronx Case Dismissed
The Bronx Supreme Court granted Joni Linker’s Motion for Summary Judgment in a lawsuit brought for an alleged trip and fall on the sidewalk in front of our client’s Deli. Plaintiff alleged that she tripped on a paved over utility cover when her sneaker was caught due to a depression in the pavement and broke her ankle. The Court agreed that Ms. Linker had met the burden of proving the “de minimus” nature of the defect through the submission of an expert affidavit accompanied by photographs and measurements. Ramirez v. Water Holdings, LLC
A Bronx Plaintiff’s Case Doesn’t Hold Water
Salvatore DeSantis’ Motion for Summary Judgment was granted in this slip and fall case by Bronx Supreme Court Judge Betty Owen Stinson, who agreed with Mr. DeSantis that the “mere fact that outside walking surfaces can become wet during a rainfall does not provide actual or constructive notice of a hazardous condition for which the building owner or management can be held responsible”. Sean McGuire v. 3901 Independence Owners, Inc., et al.
Labor Law Case Dismissed on Appeal
Appellate counsel Marcy Sonneborn appealed the denial of our Motion to Dismiss plaintiff’s Labor Law case, brought for injuries plaintiff suffered in a construction accident. The Appellate Division, Second Department, granted the appeal, finding that the delay in the plaintiff’s filing of a Notice of Claim against our client, an industrial development agency, was prejudicial. In the Matter of Rickey Grant v. Nassau County Industrial Development Agency.
Needle Case Doesn’t Stick
Two days into his stay at our client’s Bed & Breakfast Inn, plaintiff claims he awoke in the middle of the night, put his feet on a rug near his bed and sustained a needle stick to his right foot. He pulled it out and his wife indicated there was some bleeding as a result. He and his wife sued our client for negligence, the infliction of emotional distress, as well as the loss of consortium as he feared he might have contracted the AIDS virus. Blood tests subsequently proved to be negative for HIV. In a 9-page decision, the New York County Civil Judge granted Salvatore DeSantis’ Motion for Summary Judgment. Mr. DeSantis had provided the Court with an Affidavit from Dr. Judith Axelrod, an expert in the field of infectious diseases, who found that the risk of transmission from a needle stick from an unknown source is considered to be negligible and would be substantially less than the known risk of 0.32% when a person is stuck with a needle used in an HIV positive person. The Court ruled that our client had no notice of any needle fragment in the room’s carpet and did not engage in any conduct that would constitute the infliction of emotional distress. Belford v. Gracie Inn, et ano.
Defense Verdict for Church in Slip and Fall Case
Plaintiff, recovering from recent hip surgery, claimed she slipped and fell on a large puddle of water during services in defendant’s sanctuary. The superintendent, who maintained the premises at the time of the incident, testified that water tracked into the sanctuary on a regular basis when it rained and snowed, and that the area should have been carpeted. Representatives from the Church claimed it had no notice of any dangerous or defective condition and thus no opportunity to rectify it. Following the accident, plaintiff underwent surgery to her right shoulder and right knee, and her treating orthopedic surgeon testified she will also need a hip replacement because of this accident. The jury unanimously found that MSD’s client, Marble Collegiate Church, was not negligent. Lawrence Getzler obtained a defense verdict in this New York County case, Wiebusch v Bethany Memorial Reform Church and Marble Collegiate Church.
Toxic Mold Case Dismissed by Court of Appeals
Salvatore J. DeSantis and appellate counsel Marcy Sonneborn were successful in having the Court of Appeals affirm the dismissal of a Complaint against a Manhattan landlord, in Litwack v. Plaza Realty. This is the first time New York’s highest court, the Court of Appeals, has heard a toxic mold case, and the decision was an overwhelming victory for property owners. The plaintiff argued that the landlord was responsible for a hazardous toxic mold condition in her luxury apartment. She had complained for many years about leaking air conditioners, and had recently complained about a brown spot on her dining room wall. In addition, it is undisputed that once she had her apartment tested, it had dangerously high levels of mold. However, plaintiff vacated the apartment before she notified her landlord about the testing. The Supreme Court dismissed the case against the MSD client because plaintiff hadn’t given her landlord sufficient notice of a mold condition. The Appellate Division affirmed. The Court of Appeals heard the case because there is currently no standard in New York for establishing a property owner’s liability for a toxic mold condition. MSD was successful in arguing that a single minor brown spot on the wall and leaking air conditions is not enough to put a landlord on notice that mold can develop in the future. MSD also argued that the medical and scientific community does not recognize inhaling airborne mold as a cause of illness. The Court of Appeals affirmed the dismissal, but did not set a standard for future cases and did not discuss the medical issues.
Premises Negligence Claim Dismissed Against Landlord
The Kings County Supreme Court granted Joni Linker’s Motion for Summary Judgment, finding that plaintiff had not sustained his burden of proof of actual or constructive notice of an alleged defective condition in the hallway of defendant’s residential apartment building. The Motion was granted on a showing of prima facie entitlement to summary judgment by proving that the alleged condition did not exist for a sufficient length of time to put the defendant on notice. Costello v. Kadar, et al.
Defense Verdict for Church in Employment Discrimination Case
The Seventh Day Adventist Church’s fundamental beliefs instruct that sexual relations are a privilege to be enjoyed solely within marriage. The plaintiff, a 5th Grade teacher at the Linden Elementary School of the Seventh Day Adventist Church, although unmarried, became pregnant. The school thereafter discharged her for violating its tenets and engaging in premarital sex. When she began her teaching career at the Seventh Day Adventist School, the plaintiff, a life long Seventh Day Adventist, agreed that she would abide by all the fundamental teachings of the church and be a role model for the students. Her suit for employment discrimination claimed that she was fired because she was pregnant. At trial, Ross Weaver of MSD presented evidence demonstrating that the school’s employment decisions were protected by the First Amendment of the Constitution and could not properly be the subject of an action under Federal or State employment discrimination laws. Consequently, at the conclusion of the jury trial in U.S. District Court, Judge Irizarry granted Ross Weaver’s motion for a directed verdict for the Church, dismissing the case, agreeing that because of the religious nature of the plaintiff’s duties, the ministerial exception applied, and that plaintiff had not been discharged as a result of discrimination but as a result of her failure to abide by the precepts of the Seventh Day Adventist Church. Redhead v. Conference of Seventh Day Adventists
Double Win for Friendly Baptist Church
The Appellate Division, First Department, affirmed summary judgment for MSD’s client, the Friendly Baptist Church. The lower court had granted Julie Molod’s motion, dismissing the case of Ralph Ronda, a police officer who, while riding on his police scooter, was hit in the rear of the scooter by the driver of the Church’s bus. As a result of the injuries sustained, the officer underwent surgery to his left shoulder and left knee. He was granted Accident Disability Retirement by the Medical Board Police Pension Fund. Marcy Sonneborn, appellate counsel for MSD, defended the appeal, demonstrating to the Appellate Court that the lower court was correct that plaintiff’s injuries did not meet the “threshold” under New York’s No-Fault Law. The Court was overwhelmingly persuaded by the numerous line of duty injury reports which preceded the accident when affirming dismissal of the complaint. Ronda v. Friendly Baptist Church
Defense Verdict in Food Poisoning Case
MSD’s Ross Weaver successfully defended the Third Avenue Frontier Restaurant against a plaintiff’s claim that he contracted a salmonella infection within hours after eating in their restaurant. Plaintiff, a practicing dentist, claimed his infection and complications forced him to give up dentistry. MSD’s presentation of expert evidence proved to the jury that based upon the unique characteristics of salmonella, the infection did not come from the restaurant. Josilevich v. Third Avenue Frontier Restaurant
Defense Verdict for Church
Despite plaintiff’s spinal fusion and arthroscopic surgery from a slip and fall accident while playing basketball, the jury found that MSD’s client, Arverne Church of God, was not liable. Lawrence Getzler obtained a defense verdict in this Queens County case when the jury unanimously found that the defendant Church was not negligent despite claims that water was leaking from a defective roof for months prior to the accident. Representatives from the Church and an independent witness claimed there was no water on the floor where plaintiff fell. Clarke v. Arverne Church of God
Restrained Verdict Won in Dog Bite Case Where Dog Wasn’t Restrained
MSD Partner Salvatore J. DeSantis received a restrained verdict in a dog bite case in New York County. The jury found our client, the building owner, 20 percent negligent where the subject dog had bitten two people in the building previously in minor incidents. The plaintiff had been talking to the building’s doorman in the lobby when the dog attacked plaintiff, biting her lip, and knocking her to the floor. The dog owner, who was also found 20 percent negligent, testified that plaintiff had ignored warnings not to pet the dog. Plaintiff had 25 stitches to her lip and needs plastic surgery to correct the resulting scar. The defendants successfully demonstrated that the plaintiff was negligent and that she was overreaching on damages when her lawyer claimed during his opening that her face was bitten off. Plaintiff was found 60 percent negligent and the jury’s total award was $43,500. Moreno v. David Frankel Realty, et ano.
MSD Win in Wrongful Death Case Upheld on Appeal
A 22 year old suffered a heart attack and died while playing basketball in his employer’s evening league at MSD’s client’s facility Basketball City New York, LLC. His estate claimed that Basketball City New York was negligent in failing to maintain emergency resuscitation equipment and staff trained in its use. MSD’s Marcy Sonneborn successfully argued on appeal that the lower court was correct in dismissing the lawsuit because plaintiff had assumed the risk of playing sports, the basketball facility didn’t cause the decedent plaintiff to suffer a heart attack; and because the law did not then require such a facility to have CPR equipment. Colon, as Administratrix of Hernandez Estate v. Basketball City New York, LLC.
Slip & Fall Case Dismissed Against Church
Queens County Judge David Elliot granted Salvatore J. DeSantis’ Motion for Summary Judgment, dismissing this case against the Church because MSD successfully proved that plaintiff did not know what caused her to fall. Salvatore DeSantis also successfully argued that the opinion of plaintiff’s expert, who never examined the Church’s gymnasium floor, but still stated that floors of such a type are dangerous to persons wearing leather-soled shoes, was unsupported by evidentiary fact and was conclusory. Finally, Judge Elliott was persuaded by Salvatore DeSantis’ argument that the three witness affidavits submitted by plaintiff were from people who had not, in fact, observed wet spots in the area of plaintiff’s fall. Drummings v. Allen A.M.E. Church
Arbitrator of Fee Disputes
We are pleased to announce that Frederick M. Molod, already serving as a Mediator in New York’s Federal Court with a noteworthy success rate at achieving settlements, has now also been appointed Arbitrator in the 10th Judicial District’s Fee Dispute Resolution program. This program was established to encourage out-of-court resolution of fee disputes between attorneys and clients in a fair, impartial and efficient manner to both strengthen the integrity of professional relationships between clients and members of the bar, and to advance community confidence in the legal profession as a whole.
MSD Wins Again
MSD’s Salvatore DeSantis, partnering with fellow Harmonie Group member David Keller, shared their knowledge of the application of attorney ethics to internet email by the publication of their article entitled Ethics Now and for the Future in Our High-Tech Email World in the latest issue of the Federation of Defense & Corporate Counsel’s publication FDCC Quarterly which you can download in its entirety here. At MSD, we appreciate the speed of email communication and strive to ensure that such communication is protected at the same time.
The entire MSD family wishes you and yours a happy and safe holiday season. May you have a New Year filled with Good Health, Peace, Joy and Prosperity!
MSD Wins Again
The Second Department Appellate Division affirmed summary judgment for MSD’s client, Greyhound Bus Company, a Laidlaw subsidiary. The lower court had granted Alice Spitz’ Motion, dismissing the case of a passenger who was injured in a three vehicle collision on the New Jersey Turnpike against Greyhound. Marcy Sonneborn defended the appeal, demonstrating to the appellate court that all witnesses placed the blame for the accident with the defendant Jiffy truck, and not with the Greyhound Bus or the third vehicle, a Peter Pan bus. In fact, the eyewitness testimony demonstrated that the Jiffy truck entered a lane of traffic in which the Greyhound bus was traveling, hit the side of the Greyhound bus, which caused the Greyhound bus to veer left and hit the Peter Pan bus. Merchant v Greyhound Bus Company
Construction Site Accidents: The Law and the Trial
MSD’s Alice Spitz was a faculty member in the New York State Bar Association’s CLE seminar Construction Site Accidents: The Law and The Trial, a program to educate attorneys unfamiliar with litigating such cases. The topics she addressed included construction contracts, New York’s grave injury statute, insurance indemnification issues, and ethical concerns arising during the defense of clients involved in construction litigation. Alice used policy language, statutory language and examples from actual cases in her written materials disseminated at the seminar, which were published by the New York State Bar Association and are available upon request. Evaluations after the event by the participants consistently rated her presentation as excellent.
Defense Verdict in Exploding Lighter Fluid Case
Plaintiff claimed, that while attending Sunday services at his Church, he was asked by a Church employee to light the Church’s barbecue grill and cook food leftover from a Church party held the night before. Plaintiff sustained 1st and 2nd degree burns to his hands, chest, left groin, neck, shoulders and serious disfigurement, claiming that the lighter fluid he used to accomplish this task spontaneously exploded due to exposure to direct sunlight. MSD’s client, the defendant Church, claimed that the grill had already been lit and heating for 45 minutes and that when plaintiff poured lighter fluid on the fire, this caused a flashback. This was supported by the Emergency Room nurse whom Lawrence Getzler subpoenaed to testify at trial. She testified that plaintiff told her at the hospital that the incident occurred when he was lighting the charcoal briquettes on the barbeque grill, when the flames flew back with the lighter fluid, igniting his clothes and hands. The lighter fluid manufacturer settled prior to trial pursuant to a confidentiality agreement. Lawrence Getzler obtained a defense verdict in Kings County when the jury unanimously found that the defendant Church was not negligent. Neamonitis v. SS Anargyroi Taxiarxhis and Gerasimos Greek Orthodox Church.
Bronx County Plaintiff Doesn’t Meet Serious Injury Treshold – Two Surgeries Found Not Causally Connected
Justice Betty Owen Stinson in Bronx County granted MSD’s motion for summary judgment based upon plaintiff’s failure to satisfy the serious injury threshold of the New York Insurance law. Plaintiff, a police officer, was driving a three-wheeled police scooter when he was rear-ended by defendant’s vehicle. Plaintiff underwent arthroscopic surgery to his left knee and left shoulder following the accident. In her motion papers, Julie Molod argued that the medical evidence established that plaintiff’s operations and injuries were not causally related to the accident. Plaintiff had a history of prior injuries from his years as a police officer. Although plaintiff’s attorney submitted both an affidavit from the plaintiff and his treating orthopedic surgeon, Justice Stinson granted the motion and dismissed the complaint
Presentation On The Defense of Nail Salons
Alice Spitz and Joon Park joined two adjusters from Magna Carta Companies and conducted a presentation regarding the defense of Nail Salon cases. Issues focused on the cultural diversity in the industry, investigation, sanitation requirements and practices, the types of cases and their values, and the current insurance policy endorsements incorporated into Nail Salon policies.
Defense Verdict in Lack of Supervision Case
A seven-year old plaintiff claimed that he was injured by another child while under the supervision of Chernomorets, a corporation that ran a soccer program. The Chernamorets were playing the Brooklyn Patriots at a gymnasium in Public School 186 in Brooklyn, New York, while plaintiff was “pretend” wrestling with another soccer player. While wrestling, plaintiff was flipped over and his arm was broken, requiring open reduction and internal fixation. Salvatore DeSantis obtained a defense verdict in Kings County when the jury found that defendant Chernamorets, which had two coaches supervising ten children, was not negligent. Lavina v. Chernamorets
Premises Liability Case Dismissed on Procedural Grounds
Alice Spitz was successful in having plaintiff’s Complaint dismissed against our client, Very Ltd. d/b/a Au Bar due to the plaintiff’s willful defiance of four Court Orders for outstanding discovery. The Court noted that the plaintiff offered no reasonable excuse for failing to timely respond to outstanding discovery demands and the Court further noted that the plaintiff provided said discovery only after they were served with Ms. Spitz’ Motion to Dismiss. The Court dismissed the Supreme Court, New York County Complaint. Sheridan v. Very, Ltd. d/b/a Au Bar, et. al.
Labor Law Case Dismissed
Plaintiff, a 46 year old porter employed by the owner of the building in which he worked, was severely injured on the job and allegedly permanently disabled when he fell approximately 15-20 feet from an unsecured ladder. Plaintiff claimed a violation of Labor Law §240(1) and sued the managing agent of the building in which he worked and fell. After discovery, MSD moved for summary judgment based upon the exclusivity of the Workers’ Compensation law. Plaintiff argued that because he did not take any direction and control from the managing agent, that a question of fact existed as to whether he was an employee to whom the Workers’ Compensation bar applied. The Court, however, adopted MSD’s arguments that the managing agent was a “special employer” based upon our suggested interpretation of the management contract and the affidavit of our client, and awarded summary judgment dismissing this action against our client. Bautista v. David Frankel Realty, Inc.
Bronx Lead Poisoning Case Dismissed by Appellate Division
Alice Spitz and Marcy Sonneborn were successful in having the Appellate Division affirm dismissal of a Complaint against MSD client, a Bronx landlord, in Concepcion v. Walsh. The plaintiff argued that the landlord was responsible for a hazardous lead paint condition in the apartment in which the family lived after the minor’s blood test determined that his blood/lead levels were above the accepted standard. In New York City, a plaintiff need only proffer testimony of a peeling paint condition and notice to the landlord that a child lives in the apartment in order to recover for lead poisoning. MSD was successful in arguing that the mother’s deposition testimony was too vague on the issue of a peeling paint condition and the Court found that there was no evidence of the actual existence of a lead hazard in the apartment. Significantly, the Court also rejected plaintiff’s argument that the evidence of lead paint in another apartment in the building constitutes evidence of lead paint in the subject apartment. On the issue of damages, the court found that there was not even an issue of fact that the child sustained a lead injury since the medical expert used by the plaintiff relied upon an unsworn report of the child’s psychologist that established that lead in the blood was the cause of the child’s numerous academic, behavioral and emotional problems and that there was no admissible evidence of actual impairment. Read about it in the April 2007 Mealey’s Lead Litigation Report.
Appellate Division Reverses Trial Court and Dismisses Complaint Against Clemco Industries Corp.
MSD was successful in the Appellate Division, First Department, in obtaining reversal of the denial of our Motion for Summary Judgment on behalf of our client, Clemco Industries Corp., in Supreme Court, Bronx County, and the case was dismissed. Winning a reversal for a defendant in a death case in the First Department, well known for its plaintiff-oriented bent, is a huge victory! Alice Spitz and Marcy Sonneborn argued that despite the tragic death of Jamine Michael Donovan, a long-time welder with Yula Corporation, the supplied air respirator helmet manufactured by Clemco Industries Corp. was not involved in the accident. The evidence proved that the cause of Mr. Donovan’s death was asphyxiation due to insufficient oxygen in the air canisters. The Clemco Industries Corp. helmet neither caused the accident nor contributed to it. The Appellate Division agreed and reversed the lower court decision. Donovan v. All-Weld Prods. Corp.
Appellate Division Affirms Grant of Summary Judgment to Hospital
Salvatore J. DeSantis and Marcy Sonneborn successfully won summary judgment, and affirmance on appeal in the Appellate Division on behalf of Crothall Healthcare and Soundshore Hospital. The plaintiff, injured in a fall while delivering food trays, was an employee of the Hospital. Plaintiff claimed that the Hospital’s manager, Crothall Healthcare, was negligent in the manner in which it trained the Hospital’s maintenance staff. The plaintiff argued that the maintenance staff were “special employees” of the defendants, while she was a “general employee” of the Hospital. The Court ruled that the plaintiff was limited by the exclusivity provisions of the Workers Compensation law, and affirmed dismissal. Spencer v. Crothall Healthcare
Cooperative Wins After a Decade of Litigation with Tenant
Demonstrating success in trial skills as well as appellate advocacy, MSD Partner Chris Christofides had a double victory, first at the trial level, and then on the appeal. Plaintiff’s action involved alleged water damage to her apartment from different sources over a period of years. She was paid for the first loss under the provisions of her homeowner’s policy, but plaintiff alleged there was additional damage in the ensuing years that she did not then claim. The Court sustained Chris’ objections and denied the admission into evidence of plaintiff’s handwritten diaries for lack of foundation, relevance and as being self-serving. Due to the lack of admissible evidence, the Court held that the plaintiff failed to make out a prima facie case and granted a directed judgment in favor of each defendant, dismissing plaintiff’s Complaint in its entirety. On appeal to the Appellate Term for the First Department, the per curiam decision affirmed the trial court stating: “Even affording plaintiff every favorable inference which could reasonably be drawn from the evidence adduced at trial, we agree that plaintiff failed to establish any actionable negligence on defendants part or that any such negligence caused the 1991 water leaks giving rise to this action.” Gamiel v. Harbutt
Defense Verdict – Camper’s Claim Falls
MSD obtained a defendant’s verdict in Guerrier v. Sunshine Acres Camp. Plaintiff Gabrielle Guerrier, an eight year old camper, sustained a medial condylar fracture in her dominant left arm, requiring open reduction and internal fixation, when she fell off the top bunk of a bunk bed that lacked guardrails. At trial, MSD successfully moved to preclude testimony from the plaintiff’s self proclaimed child safety and protection expert, Grace Hotchkiss Scarano, by demonstrating that she was not qualified to offer expert testimony relative to the incident in question. We were further able to demonstrate that guardrails for bunk beds in camps in New York State were not required at the time of the incident and would not have prevented a fall occasioned by the manner in which the plaintiff leaned over the side of the bunk bed.
MSD Shares Expertise with Federation of Defense & Corporate Counsel
MSD’s Salvatore J. DeSantis, partnering with fellow Harmonie Group member David Keller, shared their knowledge of the application of attorney ethics in our high tech world at the 2007 Winter Meeting of the Federation of Defense & Corporate Counsel in Scottsdale, Arizona. Their presentation focused on the use of email between counsel and client and the various ethical considerations this raises for attorneys desiring to give their clients the most zealous and confidential representation. At MSD, we appreciate the speed of email communication and strive to ensure that such communication is protected at the same time.
Alice Spitz Becomes President-Elect of Harmonie
Alice Spitz was elevated to President-Elect of the national Harmonie Group for a two year term. The Harmonie Group is an affiliation of independent law firms providing a broad spectrum of high quality legal services to corporations, insurance carriers, and third party claim administrators across North America. It is an invitation only organization which extends membership invitations only to experienced, highly qualified law firms that have earned the respect of their peers, the courts and their clients in negotiation, litigation, and trial advocacy. You can access the Harmonie Group’s law firm directory here. Alice will become President of the Harmonie Group in 2009 for a two year term.
Case Dismissed: USTA Floor Grate Not City’s Responsibility
MSD was successful in having plaintiff’s Complaint against the City of New York dismissed in an action in which it was the sole defendant. Plaintiff was a chef, employed to prepare food for the U.S. Tennis Open located at the Arthur Ashe Tennis Stadium. The USTA (United States Tennis Association) leases the stadium from the City pursuant to a 99 year lease. Plaintiff argued that the grate covering the floor drain in the stadium’s kitchen was defective, causing him to slip and fall and spill boiling water, resulting in severe burns to his torso. Alice Spitz and Marcy Sonneborn argued that the City of New York exerted no control over the construction or installation of the kitchen floor and grate. The City’s Building Department’s approval of the overall kitchen floor plan was in its regulatory capacity and not as a landowner. The Court agreed and dismissed the Complaint. Buhler v. City
Case Dismissed: Hazards Inherent in Laborer’s Work
Despite the difficulty of obtaining summary judgments for defendants in New York Labor Law cases, MSD was successful in having the complaint against its client – Methodist Church of Glen Cove – dismissed under both Labor Law and common law. MSD partner Salvatore J. DeSantis and Marcy Sonneborn argued that the plaintiff could not prevail under Labor Law §240(1) because the risk of injury was not as a result of an elevation – the plaintiff had already descended a ladder and was back on the ground when sections of rotted soffit and roof fell and injured him. The Court agreed with MSD that Labor Law §241(6) did not apply because a Section of the Industrial Code was not violated. MSD also argued that neither Labor Law §200 nor the common law were violated because an owner’s duty does not extend to hazards that are inherent in the work the laborer is to perform. MSD’s client was the sole defendant in the case of Hansen v. Trustees of The Methodist Episcopal Church of Glen Cove, et al.
Educating Our Insurance Company Partners
In MSD’s continuing effort to provide additional service to clients, associate Stacey E. Steinberg and partner Alice Spitz gave a presentation on New York’s no-fault insurance law for the Claims Staff of Harco National Insurance Company and TransGuard Insurance Company of America. Other clients interested in having MSD address their claims departments should contact email@example.com.
Case Dismissed: Basketball Facility Not Negligent
A 22 year old suffered a heart attack and died while playing basketball in his employer’s evening league at MSD’s client’s facility Basketball City New York, LLC. His estate claimed that Basketball City New York was negligent in failing to maintain emergency resuscitation equipment and staff trained in its use. MSD partner Alice Spitz and Marcy Sonneborn successfully argued that the case should be dismissed because plaintiff assumed the risk of playing sports, the basketball facility didn’t cause the decedent plaintiff to suffer a heart attack; and because the law did not then require such a facility to have CPR equipment. Colon, as Administratrix of Hernandez Estate v. Basketball City New York, LLC.
Case Dismissed: Amateur Softball Players Assume Risk of Injury
In a lengthy decision based on the current law involving “assumption of the risk,” Nassau County Judge Tammy Robbins dismissed the case against MSD’s defendant client in Gillen v. Nassau Semi-fast Softball League. The Court agreed with MSD partner Alice Spitz and Marcy Sonneborn that with the plaintiff’s long history and experience as a softball player, he assumed the risk of injury while playing softball in the defendant’s league. The Court considered and rejected the conclusion of the plaintiff’s expert that amateur softball players do not assume the risk of base runner crashes, as not supported by the evidence, and disallowed the plaintiff from recovering damages for two cervical spine surgeries.
Case Dismissed: Statute of Limitations Had Run
Summary judgment was granted to MSD’s client in a case involving an alleged trip and fall on a sidewalk in Manhattan. The plaintiff claimed that MSD’s client in Ebner v. MHP Land Associates v. Spring Scaffolding, Inc. erected a sidewalk shed over an expanse of sidewalk and that the weight of the shed created a defect in one of the flags. The plaintiff further alleged sustaining serious injuries from tripping over the flag. Having originally sued the City of New York, the owner and lessee of the premises, the plaintiff then sued MSD’s client directly after they were added as a third-party defendant. MSD senior associate Sean P. King successfully argued that the three-year Statute of Limitations had run by the time MSD’s client was brought into the case and that the case did not meet the criteria for “relation back.”
Four Bronx County Claims Dismissed!
The claims of four plaintiffs in a Bronx County lawsuit, stemming from a motor vehicle accident, were dismissed following a motion made by Julie Molod. Justice Sallie Manzanet-Daniels granted the motion for summary judgment, based upon the failure of all four plaintiffs to satisfy the serious injury threshold of the no-fault insurance law. Although the plaintiffs all stopped treatment soon after the incident, they returned to a physician in 2006, after the subject motion was filed. The physician submitted Affidavits concluding that each plaintiff had suffered serious injuries as a result of the incident. Justice Manzanet ruled that the physician affidavits were clearly “tailored” in an attempt to defeat the motion and did not provide an explanation for the plaintiffs’ cessation in treatment in 2002. Plaintiffs failed to reasonably explain why there was a gap in treatment for over three years. Silverio v. Leavitt, et al.
Case Dismissed Against Tenant who Fell, Claiming a Defect in Concrete Abutement
Plaintiff Paramjit Lal, a tenant in defendant’s two-story house, claimed that he fell when he sat down on a concrete abutment adjoining the front steps of the premises. As he sat down, the abutment “came loose” and slipped, causing him to fall. Partner Alice Spitz, Associate Stacey Steinberg, and appellate counsel Marcy Sonneborn, convinced the Supreme Court and the Appellate Division that the defendant had no notice of the alleged defect and there was no evidence that he created it. The Supreme Court granted summary judgment and the Appellate Division affirmed. Our client was the only defendant in the action. The Appellate Division held that the owner established his entitlement to judgment as a matter of law based upon evidence that he did not create the alleged dangerous condition or have actual or constructive notice of its existence. We were particularly pleased that the Court found the opinion of the plaintiff’s expert engineer to be “wholly conclusory”.
Court Grants MSD Motions & Dismisses Two Horrific Burn Cases Due to Lack of Evidence
Lack of evidence was key to two dismissed cases against MSD clients, both cases involving severe burns. In Rosencrans v. Kiselak, et al. in Orange County, MSD partner Alice Spitz successfully argued that there was no evidence that MSD’s client – an apartment building’s water heater repair company – caused a condition in a bathroom sink that led to third-degree burns to a three year old. In Braun v. County of Orange, et al., Ms. Spitz and Marcy Sonneborn argued that MSD’s plumbing contractor client had a limited scope of employment renovating a portion of a nursing facility in the 1990s. The judge agreed that there was no evidence that MSD’s or other contractors in the case had installed improper equipment that may have led to the excessive hot water which burned the elderly plaintiff– leaving the County as the sole defendant.
Case Dismissed Against Northeast Conference of Seventh Day Adventists
MSD associate Eileen Budd was awarded summary judgment dismissing a case against the firm’s defendant client in Pressley v. Northeast Conference of Seventh Day Adventists. The plaintiff made a claim for relief under the Americans with Disabilities Act, alleging that she was discriminated against because of her gender and because of an alleged medical condition. The plaintiff had previously brought a similar action in the United States District Court for the District of Columbia, yet attempted to re-file again in the United States District Court for the Eastern District of New York. The court held that the plaintiff did not comply with the filing requirements of the Equal Employment Opportunity Commission (“EEOC”), a prerequisite for bringing suit under Title VII of the Civil Rights Act of 1964, and the excuses given by Plaintiff for her failure to timely file with the EEOC were an insufficient basis for the Court to invoke equitable tolling, which would have allowed Plaintiff to continue prosecuting her untimely filed action. Her remaining federal and state law claims were barred by the statute of limitations.
Credibility Is Key in Defendant’s Verdict
Credible testimony by the defendant in a case tried in Bronx County Supreme Court played a significant role in a jury’s unanimous verdict in favor of MSD’s client. Tried by MSD partner Irwin Miller over eight days, the case of Haynes/Lyons v. Demera was a tough one: a defendant who claimed that the plaintiff’s car rolled back and contributed to a rear impact. Acknowledging a minor impact, the defendant testified that he was traveling at very low speed with negligible damage to both vehicles. Corroborating his testimony were photographs, which reflected the absence of physical damage. Refuting claims of significant injury to the plaintiff and passenger, defense experts including a neurologist, orthopedist and diagnostic radiologist established the absence of permanency, disability and functional impairment.
MSD Partner Provides Expert Opinion in NYLJ Article
“Are Majority, Dissent That Far Apart?” asks MSD partner, Salvatore DeSantis, in the August 3 New York Law Journal. The article focused on a First Department decision in the case of BP Air Conditioning Corp. v. One Beacon Ins. Group, “a significant insurance dispute which arose when a construction worker fell on an oil slick on the 39th floor of the then existing World Trade Center.” In the article, Mr. DeSantis analyzes the “uncharacteristically contentious majority and dissenting opinions.” He concludes that, “As the appellate courts continue to wrestle with public policy considerations along with intertwined issues of insurance policy interpretation and interpretation of contracts between contractors/owners and their subcontractors, counsel must ensure that their clients obtain appropriate coverage and insurers charge appropriate premiums.”
No Written Contract Means No Case Against MSD Client
The Supreme Court, New York County, ruled in favor of United National in a case in which a subcontractor sought “additional insured” status under the company’s policy. MSD partner Salvatore DeSantis successfully argued that a written contract was required before United National would provide additional insurance for any person or organization. Since there was no written contract, MSD’s motion for summary judgment was granted. BFP One Liberty Plaza Co. LLC and Turner Construction Company v. Continental Marble, et al.
Snow and Ice Case Dismissed on Hottest Day of the Year!
The verdict in a trial over “clear ice” on a sidewalk came in on the hottest day of the year, and it was unanimous in favor of MSD’s defendant client. The plaintiff in Singh v. Tabernacle of Prayer, claimed that the defendant failed to properly shovel and salt the area of sidewalk where she slipped and allegedly sustained a knee injury requiring surgery. She brought the action against MSD’s client under § 7-210 (b) of the Administrative Code of the City of New York, which in 2003 transferred the responsibility for the maintenance of sidewalks in the five boroughs from the City to the abutting property owner. Senior Associate Sean P. King tried the case in Queens County, where a jury decided that the defendant was not negligent.
Plaintiff’s Case Didn’t Hold Water
Chris Christofides obtained a directed verdict in favor of MSD client, an apartment corporation that was one of several defendants in a case at trial involving alleged water damage. The plaintiff was paid for water damage to her apartment under the provisions of her homeowner’s policy, yet alleged that there was subsequent damage that she did not claim. The Court – having denied admission into evidence of the plaintiff’s hand-written diaries – ruled in favor of each of the defendants. Gamiel v. Harbutt, et al.
MSD Success For Church Client Holds Strong
The Appellate Division, Second Department, affirmed an order granting MSD’s motion to dismiss a case against its client, Seventh Day Adventist Church. This is the second time the case has been re-argued; in March 2005, the Supreme Court in Queens County upheld its original finding on behalf of the defendant.
The plaintiff, Glenn Marr, claimed that the defendant failed to prevent a fire set by a trespasser – arson that allegedly caused the plaintiff to sustain an aortic dissection. In November 2004, the Court granted Salvatore J. DeSantis’ motion for summary judgment after finding that the Church did take sufficient minimal security precautions, and that there was no causal connection between the plaintiff’s aortic dissection and the alleged negligence.
MSD Gets Dismissal in High-Stakes Case
In an action where the settlement demand was $10 million, MSD partner Alice Spitz – working with MSD appellate counsel Marcy Sonneborn – obtained a dismissal for client Ambassador Fuel. Ambassador was installing a new boiler and burner system at property owned by co-defendant Holind Realty.
The plaintiffs’ claim alleged that violations of the Labor Law caused the deaths of two employees of third-party defendant Eastmond, who were cleaning a fuel oil tank in preparation for the installation. MSD asserted that the plaintiffs’ failure to use proper procedures and equipment while cleaning the tank resulted in their deaths.
Justice Kenneth L. Thompson, Jr., held that the tank cleaning was not a covered activity under the Labor Law and that “there is no admissible evidence to refute Ambassador and Holind’s proof that they did not control or supervise plaintiffs’ work.”
MSD Win in “Stingray” Case Upheld on Appeal
The Appellate Division has upheld a decision by a lower court dismissing a case against MSD client Atlantis Marine World in Riverhead, New York. The plaintiff, a visitor to the aquarium, claimed that he developed an infection after petting a stingray in the aquarium’s touch tank and that the aquarium neglected to warn of the danger of Mycobacterium marinum in the tank. According to the appellate decision, “the defendant met its initial burden by providing evidence that the risk of infection was unforeseeable, as an infection by Mycobacterium marinum at a public aquarium had never occurred and cases of that infection in general were exceedingly rare.”
MSD Uses Plaintiff’s Own Testimony to Gain Dismissal for Defendant
MSD obtained a dismissal at trial in Cicciarella v. McLoughlin and Swenson, et. al., a case involving a motor vehicle accident. Associate Stacey Steinberg established that the testimony of all parties in our clients’ vehicle, including the plaintiff, demonstrated that MSD’s clients were not responsible for the accident, as they were already stopped for approximately five seconds before being hit from the back by a third vehicle.
As we celebrate a milestone in our more than 50-year history, we at Molod Spitz and DeSantis would like to thank you, our valued client, for your loyalty to the firm. Fred Molod, our founding partner, joins principals Alice Spitz and Salvatore DeSantis in commemorating the 10-year anniversary of our partnership.
Twenty attorneys strong, Molod Spitz and DeSantis recognizes the benefits of a dynamic partnership. Over the past decade, we have strived to go beyond representing clients – instead seeking to partner with you to achieve the best result in thousands of cases, including several landmark cases and precedent-setting decisions.
Our reputation as a formidable adversary in the New York court system – one that does not hesitate to see a trial through to verdict – attests to the strength of your team spirit and trust.
Looking ahead, we plan to gain an even greater understanding of our clients’ businesses and needs, and further our commitment to the education of claims professionals – while continuing to achieve the successes in the courtroom you have come to expect from us.
In our next decade, we look forward to building on our relationships with our long-time clients and to building long-standing relationships with our new clients. Thank you, again, for partnering with us.
MSD’s Thurm Takes Part in “Don’t Court Disaster” Program for Agents
Milton Thurm, Of Counsel to Molod Spitz & DeSantis, participated as a presenter in “Don’t Court Disaster,” a mock court presentation for the Professional Insurance Agents of New York. The subject matter of the program – which was sponsored by the Excess Line Association of New York – was brokers’ and agents’ errors and omissions. Mr. Thurm has participated in this event twice before.
Web Research Disproves Plaintiff’s Deposition Testimony
An Internet investigation by MSD associate Dennis Monaco demonstrated that an avid bodybuilder did not sustain a “serious injury” – as defined by New York State Insurance Law — in the case of Croce v. Payne Inc. Mr. Monaco’s research revealed that, contrary to deposition testimony, the plaintiff not only remained active, but even excelled as a competitive bodybuilder after his June 2001 automobile accident. Judge David I. Schmidt, Supreme Court, King’s County, granted Mr. Monaco’s motion to dismiss the case.
20-Month Gap in Medical Treatment Undermines Claim of Serious Injury
Judge Howard R. Silver, Supreme Court, Bronx County, granted MSD’s motion to dismiss the plaintiff’s claim of a “serious injury” in the case of DeLeon v. D & W Truck Lines, Inc. MSD associate Dennis Monaco noted that there was a 20-month gap since the plaintiff’s last physical examination. He bolstered his argument that the plaintiff’s complaints of pain were not supported by objective medical findings by presenting medical reports from two experts — an orthopedist and a neurologist. They concluded that the plaintiff neither had a disability nor required any further orthopedic or neurological treatment, therapy or testing.
No Second Chances, Case Dismissed
In the case of Cernuda v. Dompereh, a motion for summary judgment made by Julie Molod was granted by Justice Betty Stinson on Feb 1, 2006. The case was dismissed based upon collateral estoppel. In a prior non-jury trial, the two parties were co-defendants. Plaintiff Cernuda did not meet his burden of demonstrating that he did not have a full and fair opportunity to litigate the issue decided by Justice Friedlander in the first trial. Also of interest was Justice Stinson’s decision that defendant Dompereh demonstrated good cause to make this late summary judgment motion since Justice Friedlander’s decision in the prior action was not entered until after the statutory 120–day period had run in the instant action.
Memberships & Affiliations
Alice Spitz and Fred Molod attended the tri-annual Harmonie Group Meeting in Florida. This meeting of the insurance industry and the Harmonie Group network included representatives from two of our clients, Adventist Risk Management and Magna Carta Companies, and all appreciated the insights they shared. For additional information on the Harmonie Group, please see their website or contact us.
Sharing Knowledge with Insurance Professionals
In an ongoing commitment to keep clients apprised of legal issues that affect the way they do business, MSD partners Alice Spitz and Salvatore DeSantis tailored a presentation for its insurer client Guide One. The presentation – which covered current issues regarding labor law – was well-received. Other clients who want MSD to address their claims departments should contact firstname.lastname@example.org.
Case Dismissed: MSD Contends Lessee Not Responsible for Fallen Ceiling
MSD prevailed in Johnson v. Yorktown Country Inn, et al., a case disputing who was responsible for a fallen ceiling that allegedly injured an employee of the Volunteers of America (VOA). The plaintiff, claiming to have sustained herniated discs that required two surgeries, had sued the property owner, Yorktown. Yorktown, in turn, sued its lessee, the County of Westchester and the county’s licensee, Volunteers of America (VOA) – claiming that, as an out-of-possession landlord, it was not legally responsible for the ceiling collapse. MSD’s Milton Thurm moved to dismiss the third-party complaint against the county and VOA – contending that, under the lease agreement, MSD’s clients were not responsible for the condition that caused the ceiling to collapse and that the plaintiff had not suffered a grave injury. The court granted MSD’s cross-motion, dismissing the case against its clients.
It’s 10 p.m. – Do You Know Where Your Claimant Is?
At the request of a client, MSD partner Alice Spitz and associate Stacey Steinberg prepared a multimedia presentation on the use of surveillance in the defense of personal injury actions. The presentation covers the history of the law regarding surveillance and current practical considerations for claims department personnel, those in the workers’ compensation department and outside counsel. The presentation was well-received by the client and is available for other clients who want MSD to address their claims departments. Please contact email@example.com.
MSD Partner Shares Expertise in NYLJ article
In “Standoffs Over Standing Down, an Attorney’s Right to Withdraw” (New York Law Journal, October 6), MSD partner Chris Christofides discusses an important legal decision concerning disclaimer and withdrawal of counsel. He writes: “Recently, the First Department Appellate Division in reviewing a motion to withdraw by a defense firm retained by a liability insurer, emphasized that the effectiveness of counsel dictates that the insured must cooperate in their defense and it was not an improvident exercise of discretion for the trial court to grant counsel’s motion.” Mr. Christofides talks about the implications of the decision in the context of other defining cases.
Insurance Coverage Issues Arising from Hurricanes Katrina & Rita
MSD’s memberships and firm affiliations assist in keeping all our attorneys abreast of the latest significant developments in the law. This month, MSD’s Milton Thurm traveled to New Mexico to attend the Excess & Surplus Lines Claims Association Conference where many of the coverage issues arising from Hurricanes Katrina and Rita were considered.
Case Dismissed: MSD Argues Too Much Speculation Over Causes of Behavioral Problems
MSD won summary judgment in Concepcion v. Walsh, a lead poisoning case brought against its client, the owner of an apartment building. The Supreme Court, Bronx County, dismissed the case, agreeing with MSD’s argument that opinions regarding the cause of the plaintiff’s learning disabilities and behavioral problems were too speculative for a jury’s consideration. MSD partner Andrew M. Harrison pointed out that no Department of Health lead paint violations were ever issued to the subject apartment. He also argued that medical records documented other possible causes of the problems experienced by the plaintiff (now a teenager) — including a congenital frontal lobe infarction (or stroke) resulting either from an unrelated trauma or premature closure of cranial fissures during infancy.
MSD Wins Summary Judgment in Case Over Hospital Housekeeping
The Supreme Court, Westchester County, dismissed all claims against MSD’s client — a management company that contracted with a local hospital to train and supervise employees of the hospital’s Housekeeping and other departments. The plaintiff in Spencer v. Crosthall Healthcare — a Food Service employee who slipped and fell on a hospital room floor — alleged that a “Wet Floor” sign was improperly placed. MSD partner Andrew M. Harrison successfully argued that, despite regular supervision by MSD’s client, the housekeepers were employees of the hospital and, therefore, the plaintiff’s sole recourse was Workers Compensation.
MSD Expands Subrogation Practice, Welcomes Chris Christofides
We are pleased to announce the expansion of our subrogation practice under Chris Christofides. The expanded subrogation business represents a strategic complement to our insurance defense focus, enabling MSD to provide an even broader range of capabilities for our insurer clients.
Mr. Christofides brings more than 25 years’ experience in the courtroom to MSD. His extensive litigation experience encompasses complex property subrogation claims, as well as matters related to insurance defense – from contractors’ liability to product liability. His record of trial successes includes high-profile property damage and personal injury cases in New York City. Mr. Christofides also has a strong reputation in the legal community for trying cases that involve novel issues; two such cases are believed to be the first of their kind litigated in New York County.
MSD Successfully Argues: Club Owner Not Negligent in Security Guard Assault
Judge David Schmidt granted a summary judgment motion by MSD associate Gene Stith, dismissing a negligence complaint against MSD client Webster Hall Entertainment Corp. The plaintiff, a security guard, sued Webster Hall for personal injuries resulting from an assault while breaking up a fight between two patrons. The finding in Banton v. Webster Hall Entertainment Corp. was that the plaintiff had failed to establish the requisite notice of criminal activity. There had been no similar prior incidents at Webster Hall.
MSD Gets Personal Injury Case Dismissed
Judge Thomas J. Dolan dismissed a personal injury case against MSD’s client in which the plaintiff alleged serious injuries resulting from a two-car accident involving the defendant. MSD associate Gene Stith successfully argued in Relly v. Farley, et al that the plaintiff’s claim of two disc bulges, and cervical and lumbar radiculapthy, did not meet the serious injury requirement under Insurance Law §5102(d). MSD called on two experts to give their opinions: a radiologist, who testified that both the cervical and lumbar spine were normal, and a neurologist, who stated that the plaintiff’s motor strength and gait were normal and that there were no physical barriers to re-employment.
Building Owner Found Not Responsible Under Law in Effect at Time of Plaintiff’s Injury
Further demonstrating its ability to get cases against its clients dismissed, MSD obtained summary judgment dismissing a case against defendant client HLV Associates under a law that was in effect in 2001. The plaintiff alleged that she sustained an injury after falling on a broken sidewalk adjacent to a Brooklyn building then owned by HLV. The plaintiff sued both HLV and the City of New York, claiming negligence in Crane v. NYC and HLV Associates, Kings County. Judge Solomon granted the motion by MSD associate Gene Stith, who argued that HLV did not cause the alleged defect in the public sidewalk, made no special use of the sidewalk and, as the law existed at that time, was not negligent as a matter of law.
The law was changed in 2003, shifting liability for sidewalk accidents from the City to abutting landowners. The law (Int. No. 193) is available here, as well as its companion statute (Int. No. 522), which requires abutting landowners to maintain liability coverage for such injuries. MSD members Frederick M. Molod and Salvatore J. DeSantis have lectured on the impact of these changes and preparedness with regard to these issues for the benefit of MSD’s insurer clients.
MSD Shares Expertise at Cross-Examination Seminar
MSD’s Alice Spitz shared her knowledge of cross-examining plaintiffs at a seminar held by the New York State Trial Lawyers Association (NYSTLA) in June. Her presentation focused on “The Cross-Examination of a Plaintiff in a General Negligence Case.” Ms. Spitz was among several trial experts, including a judge, who spoke at the seminar on topics ranging from the basics of cross-examination to lessons learned from specific cases. Ms. Spitz is no stranger to public speaking: She has shared her litigation expertise by lecturing for bar associations, insurance carriers and other organizations, as well as by teaching trial advocacy courses. The presentation for NYSTLA helps further the organization’s mission to, among other things, “advance representation of the public by ethical, well-trained lawyers.”
Jury Awards Unanimous Verdict to MSD Client
Demonstrating MSD’s core strength of conducting trials through to successful verdicts, MSD received a unanimous verdict dismissing the case against its defendant client in Korinn Alexander v. Ronzine C. Felago, et al. The jury concluded that plaintiff Alexander did not sustain a “serious injury” – as defined by New York State Insurance Law, Section 5102(d) – in a three-vehicle collision involving MSD client Felago. MSD’s Victor N. DeGeorge tried the case in New York State Supreme Court, Westchester County. Mr. DeGeorge called on medical experts, who testified that the plaintiff’s injuries were not as alleged and had resolved.
Premises Liability Case Shows MSD’s Ability to Get Cases Dismissed
While MSD has built its reputation on seeing cases through trial to a jury verdict, the firm is also skilled in ensuring that a case does not see a trial when appropriate. For instance, in the premises liability case of Paramjit Lal v. Ching Po Ng and Lu Hua He, MSD associate Stacey E. Steinberg successfully argued that there was no “triable issue of fact” as to whether MSD client Ng, a building owner, created any defective condition – or had actual or constructive notice of a defective condition – in a concrete abutment on the building’s staircase. The plaintiff alleged that a loose piece of concrete from the abutment caused him to fall and sustain injuries to his arm and elbow. The Queens County Court granted MSD’s motion for summary judgment, dismissing the case.
Success in Re-Argued Case is a Win-Win Situation for Church
After granting plaintiff Glenn Marr’s motion to re-argue a case against Seventh Day Adventist Church, the Supreme Court in Queens County upheld its original finding on behalf of defendant and MSD client Seventh Day Adventist Church. MSD successfully defended the Church for the second time in March 2005 in the plaintiff’s claim that the defendant failed to prevent a fire set by a trespasser – arson that allegedly caused the plaintiff to sustain an aortic dissection. In November 2004, the Court had granted Salvatore J. DeSantis’ motion for summary judgment after finding that the Church did take sufficient minimal security precautions, and that there was no causal connection between the plaintiff’s aortic dissection and the alleged negligence.
MSD Wins Summary Judgment in Case Against Parade Organizer
In a 48-page decision with potential implications for many other parade accident cases, MSD partner Andrew M. Harrison won summary judgment in favor of MSD’s client, a nonprofit corporation that organizes an annual cultural parade attracting more than a million spectators every Labor Day. The 17-year-old plaintiff in Donovan v. West Indian American Day Carnival Association, Inc., et al, had vaulted police barricades and fallen beneath the wheel of one of the floats. Supreme Court, Kings County Justice Mark Partnow dismissed the case against the parade organizer and other defendants. The Court accepted MSD’s argument that the decedent plaintiff’s actions constituted an intervening factor, so there was no causal connection between the claimed negligence and the accident. Copies of the decision are available on request.
MSD Gets Case Dismissed Against Security Guard Following Instructions
MSD won a motion for summary judgment in the case of Williams v. AZ Security. The Supreme Court in Kings County dismissed the case after MSD associate Eileen T. Budd established that (a) it was unforeseeable that a patient at a mental health facility would hide behind a plant and strike a nurse with a fan and (b) under the hospital’s specific instructions, AZ Security guards were relieved of any duty to intervene in patient-employee confrontations unless they were part of a trained response team.
MSD Gets Verdict for Defense in County Known for Plaintiff Awards
Adding to MSD’s reputation as a formidable adversary in counties known for large plaintiff’s awards, MSD Associate Gene Stith obtained a directed verdict for the defense in Bronx County in the case of Boakye v. Pedro A. Cernuda and Agyeman Dompereh. MSD represented co-defendant Dompereh in an automobile claim initiated by plaintiff Boakye, who was a passenger in co-defendant Dompereh’s vehicle and alleged personal injuries resulting from an accident at an intersection with defendant Cernuda. During the non-jury trial, Mr. Stith demonstrated that co-defendant Dompereh had the right of way and that defendant Cernuda was responsible for the accident. In a written decision, Judge Mark Friedlander dismissed the action against MSD’s client.
Win For Aquarium in Case of First Impression Makes Lasting Impression
“Don’t blame the stingray,” begins an article in the November 30 New York Law Journal about Reynolds v. Atlantis Marine World, a case of first impression in which the Nassau Supreme Court granted a motion for summary judgment by MSD partner Alice Spitz on behalf of the aquarium. The judge dismissed the case, which was “filed by a visitor to Riverhead’s Atlantis Marine World aquarium who claimed he developed an infection after petting the marine animal.” The full article is reprinted here with the Journal’s permission.
Salvatore J. DeSantis’ article, “Indemnification Update”, was published in The New York Law Journal on October 21, 2004. Two years earlier, The New York Law Journal had published his article entitled “Subcontracting – Reviewing Indemnification and Insurance Procurement Pacts”. If you would like a copy of the article(s), please contact us.
Helping September 11th Victims – Pro Bono Work
Salvatore J. DeSantis was among those recognized for volunteering numerous hours to benefit victims of the September 11th attack through TLA, Trial Lawyers Care, awarded the 2004 Public Justice Achievement Award by the Trial Lawyers for Public Justice.
Two Bronx County Cases Dismissed!
Motor Vehicle Litigation
Irwin D. Miller and Victor N. DeGeorge, moved for Summary Judgment in Christie v. John Martin Henry and Conesa v. Lopez, respectively, arguing that these Bronx County cases should be dismissed because the respective plaintiffs hadn’t met their burden of demonstrating a “serious injury” pursuant to New York Insurance Law §5102(d). The Court, by Judges Wilma Guzman and Patricia Anne Williams, found the Motions persuasive and dismissed these back injury soft tissue cases.
Appellate Court Dismissed Case!
In a high-exposure products liability case defended by Andrew M. Harrison, the Appellate Division, First Department, reversed the Supreme Court, Bronx County Court’s decision which denied our Motion for Summary Judgment. Our client, a Bronx-based company specializing in the purchase and re-sale of used trucks and commercial vans, had purchased a six year-old van with 88,500 odometer miles, performed minor refurbishing of the vehicle, including replacing the front tires, and re-sold the van to plaintiffs’ employer, a landscaping company. The landscaper’s employees, including the four plaintiffs, drove the van 31,000 miles over 18 months, up to and including the date of the accident, when one of the rear tires, which had been patched and repaired on several occasions, exploded, causing the van to leave the highway and overturn, seriously injuring all four occupants. On the motion, and subsequent appeal handled by Marcy Sonneborn, we demonstrated that the tire which exploded could not have been on the van when it was sold to the landscaper, but rather, had to have been a replacement tire, installed by or at the behest of the third-party defendant employer. Rodriguez vs. Filomio Truck Sales, Inc.
Molod Spitz & DeSantis won summary judgment dismissal of all causes of action where a camper was allegedly assaulted by another camper while away at sleep-away camp. Finding from the evidence that it was a sudden unanticipated altercation and that the camp was not an insurer of the safety of its campers, the case was dismissed. Murawski v. Camp Nageela, et al., Supreme Court, Suffolk County.
Motor Vehicle Litigation
In Betsey Hernandez v. Diva Cab Corp., et al. (Supreme Court, Kings County), Judge Randolph Jackson granted Victor N. DeGeorge’s Motion to Dismiss plaintiff’s Complaint on the ground that plaintiff did not sustain a “serious injury” within the meaning of New York State Insurance Law §5102(d). Judge Jackson ruled that we met our burden through the submission of the sworn reports of orthopedist Dr. William J. Kulak and neurologist Dr. Robert S. April and that plaintiff failed to meet her burden, in that her reliance upon the affirmation of Dr. Julia Oster and the affidavit of Jennifer Chellis Oliveri, a licensed acupuncturist, were insufficient to refute our prima facie showing of entitlement of summary judgment.
In Bartilini v. Transport Real Grodin, Inc., following our obtaining dismissal of the Complaint before the Supreme Court, Kings County, the plaintiff appealed to the Appellate Division, Second Department. The issue was whether or not the plaintiff sustained a ‘serious injury’ under Insurance Law 5102. The Appellate Division held that plaintiff had not sustained her burden because (1) she resumed her normal activities within weeks of the accident, and (2) her medical expert concluded that plaintiff sustained a causally related disability without having prior knowledge of a pre-existing condition. Dismissal of the Complaint was unanimously affirmed in favor of our client.
Memberships & Affiliations
Our Harmonie Group affiliation brought in the opportunity to partner with Laidlaw, Inc. Alice Spitz and David Owens visited the Laidlaw offices in Texas, met with the Claims Staff and gave a presentation on New York State law and indemnification.
Alice Spitz is also attending the Harmonie Group’s Spring Conference in Boston between 4/29/04 and 5/2/04. This meeting’s focus is on employment practice litigation.
Sharing the Knowledge With Insurance Professionals
Alice Spitz participated as one of five presenters at the Aegis’ Claims Roundtables 2004 on ways to critically assess a damages claim, including the keys to successful cross examination of medical and economic experts, with a focus on psychiatrists, vocational rehabilitation specialists and economists.
Memberships & Affiliations
Salvatore J. DeSantis was elected to membership into the FDCC, the Federation of Defense & Corporate Counsel, while Milton Thurm, counsel to the firm, and already a member of the FDCC, attended their mid-Winter Conference. Among the many substantive law issues addressed at the conference were class actions, mass tort liability, coverage litigation, and ways to minimize or avoid punitive and exemplary damages.
Defense Verdict in Bronx County
Plaintiff, Joseph Bolanos, a tenant in a Manhattan brownstone, sued the managing agent and owner of the building, as well as the service contractor, alleging that a newly installed boiler exploded on March 13, 1990. As a result of the explosion, plaintiff, age 52, alleged a hearing loss, bulging cervical discs, a shoulder rotator cuff injury and memory loss. After a ten day trial in Bronx County conducted by MSD’s Irwin D. Miller, the jury returned a unanimous defense verdict on the issue of liability.
Defense Verdict in Bronx County
MSD’s Andrew M. Harrison obtained a defense verdict in notoriously plaintiff-friendly Bronx County in the premises liability case of Lamorgese v. Dome Tech Engineering Company, et al. Plaintiff, a 36 year-old maintenance mechanic, claimed that as a result of his accident, he suffered severe back injuries, requiring three surgeries. This premises liability case arose from a jobsite accident. MSD represented the third-party defendant, plaintiff’s employer. Despite the plaintiff’s claim of an admission of negligence by the defendant, the jury found no liability against defendant or the employer.
APPELLATE COURT DISMISSES COMPLAINT!
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.
Sharing the Knowledge With Insurance Professionals
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.
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.
Premises Liability Litigation
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.
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.
Appellate Court Upholds Our Defense Verdict!
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.
Yet Another Bronx Case Dismissed!
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.
Another Bronx Case Dismissed!
Motor Vehicle Litigation
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.
Bronx Case Dismissed!
Motor Vehicle Litigation
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.
Sharing The Knowledge With Insurance Professionals
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.
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.
Motor Vehicle Litigation
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.
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.
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.
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.
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.
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.
Premises Security Litigation
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.
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.
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.
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.