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Insurance Defense
New York Appellate Division Affirms Summary Judgment for Lessor in Claim by Warehouse Dockworker 

Plaintiff claimed that he sustained serious injuries at his work when he allegedly slipped and fell in a puddle of water in his employer’s warehouse. He claimed that the puddle was formed from a leaking roof, and that it was the responsibility of the building owner and landlord to inspect the roof and repair the condition. He further claimed that the landlord was on notice of the condition and did nothing to repair it. Plaintiff allegedly sustained injuries to his cervical and lumbar spine, shoulder, left knee and left ankle. His injuries allegedly kept him out of work for almost two years. 

We moved for summary judgment, establishing that the building owner owed no duty to this plaintiff. The owner was an out-of-possession landlord who had transferred exclusive control of possession and control of the premises to plaintiff’s employer under a lease which made the employer responsible for making the repairs to the roof. The court granted our motion dismissing the complaint with prejudice. On plaintiff’s appeal, the Appellate Division affirmed our client’s victory. 

James Robinson v. M. Parisi & Son Construction, Appellate Division, Second Department, 2008 
(Read Decision)

Summary Judgment Awarded in Premises Liability Action 

Plaintiff alleged that she sustained injuries in a slip and fall incident, severely injuring her lumbar spine, resulting in surgery and an inability to return to work. Plaintiff claimed that the incident occurred when she tripped over a ramp in the parking lot where she worked. She claimed that among other things, the ramp was not properly marked, and the area was not well lit. 

Our client, a former tenant of the subject premises, was brought into the action by the property owner, who alleged that we designed the lighting system, and/or had control over the design of the lighting when it was installed. 

We moved for summary judgment which was granted. In its decision, the Court held that our client had clearly vacated the premises prior to plaintiff’s accident; had no notice of the alleged defective condition; and was not contractually obligated to maintain the parking lot. The Court found that the property owner failed to present any evidence that the lighting scheme in the parking lot was improperly designed. 

Grant v. Steel Los, et al. Supreme Court Kings County 2008

Successful Defense of Arbitration Claim Resulting in Finding of No Liability

Claimant filed a PIP subrogation claim seeking reimbursement of medical expenses paid on behalf of their insured. Claimant alleged that their insured was injured when her vehicle was struck by our client’s tractor trailer at an intersection in Paterson, New Jersey. In defense of the claim we argued that there was no contact between the vehicles and that the damage to claimant’s insured’s vehicle was not consistent with their rendition of how the accident occurred. In successfully arguing our position, we utilized photographs taken by the claimant’s own insured, showing damage to her vehicle. We argued that the damage shown in the photographs was not consistent with the type of damage that would have occurred in an impact with a tractor trailer. Coupled with testimony from our client, we were able to convince the arbitrator that the contact never occurred and obtained a dismissal of all claims against our client.

Nationwide Mutual Insurance Company v. Travelers Insurance Company, et. al., November 2006

Dismissal of Arbitration Proceedings on Statute of Limitation Grounds

Claimant filed a PIP subrogation claim seeking reimbursement of medical expenses paid on behalf of their insured. Petitioner argued that their insured was under continuing medical care, and that their petition was timely filed because the last day of treatment had fallen within the applicable statute of limitations.

In opposing the claim, we successfully argued that there was an unexplained two year gap in medical treatment, and that the alleged resumption of treatment could not extend the applicable statute of limitations. The arbitrator dismissed petitioner’s claim in its entirety. 

GEICO v. Truck Claims, Inc., August 2006

Appellate Court Finds Demolition Contractor Owed No Duty to Remove Snow and Ice on Church Premises

Our client was contracted to disassemble the parsonage at the Reformed Church of Middleburgh, New York, to make way for new construction. One wintry day, with no work being done and no contractors present, the plaintiff happened upon the property to observe the work for his own interest. While there, he slipped on snow and ice and sustained injuries which aggravated pre-existing conditions, leaving him in a disabled condition. Plaintiff was neither a church member or employee, nor otherwise lawfully upon the land. The Church’s motion for summary judgment was correctly granted, but our motion was denied. On appeal, the Appellate Division dismissed the complaint against our contractor-client, agreeing that our motion should have been granted by the lower court, because our client owed no duty to the plaintiff to remove snow and ice from the premises. His contract was limited to the disassembling of the parsonage.

DeMarrais v. Swift, New York Appellate Division, 724 N.Y.S.2d 654 (2d Dept. 2001)

New York County Defense Verdict

Plaintiff, a very nice lady in her 70s, fell down a flight of stairs at a popular New York restaurant, allegedly sustaining a debilitating injury to the brachial plexus. She had successfully descended the stairway to the restrooms below, and had just reached the top on her way back to her table when she lost her balance and fell backwards. The plaintiff claimed that the stairway violated building code requirements for a number of reasons, chiefly by failing to have handrails on both sides. The restaurant was in a very old building, and we argued that the pertinent code did not require more than one handrail. Most telling was plaintiff’s admission at trial, that she does not know what caused her to fall. The jury returned a defense verdict despite the lady’s appealing nature and her serious injuries.

Futterman v. Lady Sunshine, Inc., Supreme Court, New York County

Bronx County Defense Verdict

Plaintiff claimed that she was caused to sustain a fractured leg as a result of a slip and fall incident on snow and ice on a perimeter sidewalk to defendants premises. Issues at trial included whether there was a special use of that sidewalk by defendant, and whether any snow removal procedures had taken place prior to the incident. The matter was ultimately tried to conclusion before a Bronx County jury, resulting in a defense verdict.

Suero v. New York City Housing Authority, Bronx County

Successful Defense on Behalf of Subcontractor in New York Subway Construction Claim 

Plaintiff alleged that she was caused to trip and fall on subway stairs as a result of construction debris, sustaining a tri-malleolar fracture of the left ankle requiring surgical intervention consisting of the insertion of a plate and ten screws. The general contractor faced strict statutory liability, and impleaded our client, a subcontractor on the job site, asserting claims for contractual indemnity and breach of contract). Through the course of discovery we were able to raise numerous issues which shifted the focus of liability back to the general contractor, and raised serious questions as to whether the accident arose out of our client’s work. After we successfully opposed the general contractor’s motion for summary judgment, the general contractor settled the matter with plaintiff’s counsel for $117,500, with only a very small contribution from our client. 

Ali v. New York City Transit Authority, Supreme Court, New York County, 2004

Successful Defense of General Contractor’s Claim Against Subcontractor for Contractual and Common Law Indemnity

Plaintiff claimed that he was caused to trip and fall over a defective condition on a subway platform that he contended was caused by ongoing construction work. His injury, a fractured ankle requiring surgical intervention, was complicated by pre-existing diabetes, causing plaintiff to be hospitalized for 10 months and incurring a medical lien in excess of $200,000. The general contractor brought suit against our client, a subcontractor, seeking contractual indemnity and arguing that the condition arose out of our client’s work. After completing depositions, we were able to obtain an outright dismissal of all claims against our client. 

Diaz v. New York City Transit Authority, Supreme Court, New York County, 2004

Successful Defense of Vision-Loss Claim - Impleader of Building Owner and Tenant

Plaintiff, a tile cutter, sustained a permanent injury to his eye, resulting in vision loss, while assisting in the renovation of a building situated on land owned by our client. We impleaded the owner of the building, as well as the tenant who occupied the floor that was being renovated. After completion of depositions, we were able to persuade the third-party defendants to settle all claims directly with plaintiff’s counsel, with no contribution from our client. 

Lewis v. Nick & Duke, LLC, et al., Supreme Court, Kings County, 2003

Successful Defense of New York Labor Law Case with Full Indemnification from Subcontractor

We successfully defended a land owner-contractor in a construction accident case, in which plaintiff had obtained summary judgment against our client under Section 240 of the New York Labor Law, which imposes strict vicarious liability. We obtained a dismissal of all negligence claims against our client, and successfully moved for summary judgment against the sub-contractor for common law tort indemnity. Co-defendant settled the case with plaintiff for $120,000 and subsequently reimbursed our client for attorneys fees incurred in the defense of the action.

Vlasov v. Empire Homes Corp., Supreme Court, Westchester County, 2004

Dismissal of Claim Against New Jersey Non-Profit Organization in Suit Arising from Child’s Wheelchair Accident Resulting in Severe Leg Fracture

A minor child suffering from cerebral palsy sustained a severe leg fracture, requiring surgical repair, when his leg got caught in a wheelchair. Suit was subsequently commenced on behalf of the minor against our client, a non-profit organization that assisted the family in obtaining the wheelchair, against the nurse who was caring for the minor at the time of the occurrence, and against the nurse’s employer. After attending an early mediation, we were able to obtain a dismissal of all claims against our client. 

Bachet v. People Care of New Jersey, Superior Court, Essex County, 2004

New Jersey Jury Finds No Conscious Pain and Suffering in Unfortunate Wrongful Death Accident Case

This case was tried on damages only, the sole issue being whether the decedent, who died six days after the accident occasioned by our client’s negligence, had sustained actual conscious pain and suffering while in the hospital during those six days prior to his death. His estate sued for economic damages, and for pain and suffering damages for that time period. Our expert neurologist testified that throughout the hospitalization, the decedent’s Glasgow Coma Scale score never exceeded 3 (on a scale of 1 to 15). Neurologically, this meant that the pain “signals” could not reach the cortex – the portion of the brain which detects pain – and that therefore the man did not suffer consciously from the injuries. The jury agreed, and damages were awarded on the lesser claim of loss of enjoyment of life for those six days, a figure which our client had already offered.

Estate of Corrigan, Superior Court, Union County, 2000

Aggressive Pursuit of Co-Defendant’s Insurer Despite Disclaimer for Late Notice

Plaintiff Alexander worked for the general contractor doing construction work at our client’s property. She claimed to have fallen and sustained a severe wrist fracture, requiring surgery, while standing on a barrel because she was not provided with a ladder to perform her duties. She sued our client, and also sued her own employer, the contractor (who had failed to provide worker’s compensation insurance). The contractor failed to defend, and did not notify his liability insurer until after a default judgment was entered. Not surprisingly, the insurer disclaimed for late notice. The contractor never contested the disclaimer.

As our client was an interested party, we commenced a third-party action against the insurer, arguing that its disclaimer to plaintiff’s employer was itself untimely under New York law. On that basis, the insurer subsequently appeared in the action, and paid 75 percent of the settlement. 

Alexander v. LaSala, Supreme Court, Bronx County, 2002

Dismissal of Suit Against Municipality for Failure to File Notice of Claim

Plaintiff claimed that she sustained injuries when she fell upon an uneven public sidewalk. She brought suit against our client, the municipality where the sidewalk was situated. On our motion, the Superior Court dismissed the complaint with prejudice. Plaintiff had failed to file the requisite notice of claim prior to commencing suit against the Borough, and had not petitioned the Court for an extension of time to file the notice. 

Acebo v. Borough of Sayreville, et al., Superior Court, Middlesex County, 2002

Summary Judgment Granted in Super Market Slip-and-Fall Claim

Plaintiff, a patron at defendant’s supermarket, allegedly sustained a lumbar herniated disc in a slip and fall incident on a foreign substance located near one of defendant’s check out counters. On our motion for summary judgment the court agreed that there was no evidence that the condition was caused by our client, or that in spite of its close proximity to the check out counter, that the substance was present for a long enough period of time to place our clients on notice of the condition. The Court granted our motion and dismissed plaintiff’s complaint. There was no appeal of the decision. 

Eschweiler v. Associated Grocers, Civil Court, New York County, 2002 

Plaintiff’s Expert Barred from Testifying Against Trailer Manufacturer

In a product liability claim against our client, a nationally-known manufacturer of truck trailers, we moved successfully to bar the testimony of plaintiff’s product liability engineering expert. As a result, the lawsuit was dismissed with prejudice. The claim arose out of a work-related injury sustained by a truck driver who had injured his back and undergone multiple spinal surgeries, each leaving him worse off than before. He claimed to be totally disabled as a result of the wrenching of his back while attempting to close a roll-up door on a trailer manufactured by our client and incorporating a door manufactured by the co-defendant. Plaintiff’s engineer theorized that during a morning of deliveries by the plaintiff, the tracks of the door, as well as the rollers themselves, had become deflected by the shifting of negligently-loaded cargo, causing the rollers to lodge and to lock the door in an open position. Then, as the theory went, the cargo shifted back, and so did the steel track. That’s why there was no evidence of any damage afterward! The expert could not explain why this trailer had been used for eight years without a hitch. A seven-hour deposition provided ample support for the successful motion, and the trial judge (a former plaintiffs’ attorney of note) was as incredulous as we were.

Stachow v. Consolidated Freightways, et al., Superior Court of New Jersey, Middlesex County (2001)